Winter 1987/1988 No.4

AIDS: The Legal lssues by Linda Webster and Phillipe Sands

A Regressive Act The David Alton Bill- by Pat McGarthy and Tia Cockrell

Tony Gifford 0G on Ghile's Gonstitutional Fraud

Gay Rights Matter by David Geer

A Licence to Hate: lncitement to Racial Hatred by J. Dexter Dias

The Poll Tar: No Representation Without Taxation? by Bill Bowring

Book Reviews and News

Haldane Society of Socialist Lawyers -- rì

Haldane Society of Socialist Lawyers llALDAtllE NEWS

PRESIDENT: JohnPlatts-MitlsQ.c

Kader Asmal; Fennis Augustine; Jack Gaster; VICE Tony Gifford Q.C.; Tess Gill; Jack Hendy; PRESIDENTS: Helena Kennedy; Dr Paul O'Higgins; Stephen Sedley Q.C.; Michael Seifert; David T\rrner- Samuels Q,C.; Professor Lord Wedderburn A Case to Answer? Q.c. The Society's Report on the policing of the Wapping dispute received publicity on TV, radio, newspapers and magazines. Nearly 2,000 copies have been sold through mail order and CHAIR: Joanna Dodson, News bookshops, Anyone who has still not purchased their copy can Barristers' Chambers, lReports order one from BEN EMMERSON,35, Wellington Street, 35 Wellington Street, London lVC2. Price: f2.50 plus 50p p&p. LondonWC2 Haldane News D.N. Pritt Memorial Lecture .....,...... 2 SECRETARY: Beverley Lang, 1 Dr Johnson's Buildings Day Courses for Trade Unionists Temple Haldane Ballot 0n Rule Changes ...... 13 The Employment Committee has launched a highly London EC4. successful series ofday courses for trade unionists. Topics so 01-353 9328 far have been Industrial Tlibunal procedure and Public Order law in industrial disputes, For ãetails of further courses contact FIONA L'ARBALESTIER at 83, Ward Point, 2, TREASURER: PaulineHendy, Hotspur Street, London 5811. Cloisters, Pump Court, Features Temple, London EC4. Bhopal Action Group The Poll Tax: No Representation On 2nd December the Society hosted a meeting for Am'erican public interest lawyer, ROBERT HAGER who addressed MEMBERSHIP Bankim Thanki and Julian webb. Without Taxation? British lawyers on the legal problems arising in the SECRETARY: 16, Abbots Road, New Barnet, Herts ENs ¡DP BillBowring 3 multi-plaintiff action by Bhopal disaster victims against Union Carbide. Unfortunately we only had A Regressive Act: The D avid Alton Bill 2 weeks in which to organise the meeting and so it was not possible to circulate Pat McGarthy and Tia Gockrell 5 all members with details of the date. AIDS: The Legal Issues Linda Webster and Phillipe Sands 7 s0clAllsT LAWYER CPS: 0n the Front Line Local Government & Education June Tweedie...... 10 BILL BOWRING has The Education Bill Towards taken on EC responsibility for Local r the Government issues. He can be contacted at 4, Verulam Bldgs, Editorial Tim Kerr, Beverley Lang, TonY Metzer, Gray's Inn, Alistair Smail, Keir Starmer, June Tweedie, Break Up of State Education- London WC1, JANE RAMSEY has taken on EC Committee responsibility for Education issues. She can Heather Williams. I' Jeremy Smith...... ,.. t be contacted at 494 Oakmead Road, London SW12. Gay Rights Matter Contributions from members are very welcome. lf you are interested in I or book reviews please contact HEATHER WILLIAMS David Geer ...... 18 writing articles I at: 1 Dr. Johnson's Buildings, Temple, London EC4' A Licence to Hate: lncitement to Racial ) Hatred Gay and Lesbian Rights Working J. Dexter Dias ...... 20 Party Advertising rates This group is now meeting regularly and is formulating advertising, The rates are: Chile's Gonstitutional Fraud Socialist Lawyer welcomes Society policy on changes in legislation as they affect lesbianÀ page f30 Tony Gifford 0G 22 Full f100 Ouarter Page and gay men. Anyone interested in becoming involved should f 15 Half page f60 Eighth Page contact ADRIAN FULFORD at 14, Tooks Court, Cursitor The rate for classified advertising is 25p per word. We can distribute insert Street, London WC2. adverts at Ê50 for voluntary organisations and at flOO for commercial undertakings. Please contãct HEATHER WILLIAMS at: 1 Dr Johnson's Buildings, Temple, London EC4. Reviews Alton Bill \ Opposition to the Alton Bill is being organised by CO-ORD Subsctiptions an umbrella group sponsored by the Haldane Society. The- (inclusive p&p); For 3 issues of Book Women's Subcommittee will be providing legal advice and Ê5.00 per annum for institutions and organ¡zations; Reviews ,24 support from lawyers. Anyone interested should contact I Ê4.00 per annum for individuals. Noticeboard ... 28 BARBARA COHEN at 27, Churchill Road, London NW5 \ 1AN. American power war when the U.S'A. Lastly, Ken Livingstone pictured a long term scenario for Only five months ago the Cabinet agreed on a four-year as the Vietnam (now found that the extent military commitments led to the future in which no superpower emerged as dominant phasing to be enjoyed only by Inner London and Developments in Criminology of its (Cmnd. financial burdens. This led to a and the present concentrations of power diffused. He Waltham Forest); ùhe Green Paper 9714) of The Crime Subcommittee has been organising a series of predicted that a weakened U.S.A. would no longer be able January 1986 proposed ten years! practitioners icy typifred bY the cold war and evening speaker meetings with academics and continued its to prevent the emergence of progressive regimes in the on the changing theories of criminology, for further details Ù.S. gradual decline, its world share".onomY of productive capacity third world. He acknowledged, however, that the U.S. Four taxes in one please contact PAM BRIGHTON at 111, Fortess Road, not diminishing. By the time the Reagan administration came would relinquish its spheres of military and political London NW5. influence to power, the U.S. economy was nolonger able to finance an without a bitter struggle. That could lead in the The poll tax will in fact be four taxes: a 'personal'charge armaments programme on the scale that Reagan short term to conflict and chaos before the emergence of a flat rate sum to be paid by everyone over 18; a'standard'- envisaged. However, the president had succeeded in such regimes. charge to be paid by owners and tenants ofsecond homes in frnancing such a policy by practising 'voodoo economics'; addition to personal poll tax; a 'collective'charge to be paid Employment Bill sucking in wealth from the domestic frnancial structures An Assessment by owners or landlords on behalf of residents of and from those of its allies. This had led to the build up of multi-occupied or communal accommodation; and the Employment Committee has A special subcommittee of the the huge budget defrcit. Any assessment of the strength of this analysis is diffrcult 'uniform business rate'to be set by central government the EMPLOYMENT and drafted numerous amendments to Ken Livingstone explained that the recent crash because ofits sheer generality. That is a criticism in itself. collected by local government, with the proceeds redistri- stage as we go to press' The BILL which is in its Committee represented the end of the frnancial'propping-up' Clearly, co-operation and economic progress between buted to local authorities according to the number Labour Party's exercise, of adults drafts have been madè available to the exemplifred by West Germany's refusal to cut its interest Eastern and Western Europe, and the de-nuclearisation of in their area. team on employment. frontbench rates in order to bail out the U.S. He predicted that the Europe, is a scenario that the left in Britain should be The problems associated with such a tax are already well recent crash signalled the start of the most severe world promoting. catalogued: according to Age Concern, one third of single recession since$he second World War. The future, he said, To some extent, Ken Livingstone's analysis is weakened pensioners will be worse off. Of voters as a whole, 56Vo will would be harsh for countries such as Britain which had to by the number of assumptions upon which it rests. It be worse off. The wealthiest LSVo of the population will gain Annual General Meeting bear the effects of the crash with a substantially eroded assumes a very direct correlation between economic, more than f2 per week. The poll tax will be twice as manufacturing base. He predicted that the poorest, military and political po\iler, so that a decline in the former expensive to collect as rates; and while rates evasion is Meeting will be held on Saturday 7th The Annual General weakest countries of the third world would suffer the most will lead to a swift and significant reduction in the latter. It currently IVo, poll tax evasion is likely to exceed, t\Vo. pm. to be proposed at the AGM May i988 at 2.00 Motions as the economic burdêns were shifted downwards upon also presupposes that the reaction of the U.S.A. to its Although it will not (as far as is known) be necessary to a proposer and seconder' to should be submitted in writing, by them. economic difïiculties will be substantial cutbacks in prove payment of the tax in order to vote, registration for Bldgs, Temple, London EC4 Beverley Lang, 1, Dr Johnson's military spending. It may be, at least in the short-term, the tax will be based on electoral MONDAY l1th APRIL. Written the register. It is known NO LATER THAN that the Reagan administration will attempt to reduce the that 7.6Vo of the eligible population are not on the register position of Chair, Secretary and nominations for the budget defrcit by other measures such as increased nationally; the frgure in London is about 75.2Vo. All the Treasurer and for the Executive Committee should be sent to taxation, direct or indirect, and./or greater cutbacks in the above figures are from the leaflet Replacing the Rates Bldgs, Temple, London EC4 Beverley Lang, 1, Dr Johnson's domestic spending programme. Moreover, the extent to issued by the Association of Metropolitan Authorities 11th APRIL' Each nomination NO LATER THAN MONDAY which the U.S.A. will have the political will to reduce its (AMA). Under the uniform business rate regime, proposals should be accompanied by a written consent to nomination by 'Western economic influence over Europe by choice is not so far indicate, according to the AMA leaflet, a 917o increse the candidate. Candidates are invited to provide a biography clear. The force of Ken Livingstone's analysis lies in the in Kensington and Chelse a; 6lVo in Wandsworth (l); 42Vo in (maximum 50 words). broad perspective that it promotes rather than in the Croydon; and.38Vo in Bromley. accuracy of all its component parts. ( itis diffrcult to see how those responsible for enforcement could obtain the Heather Wiiliams information they will need without intrusive Bill Bowring door-to-dloor canvassing,

Report on the D.N. Local goverrrment autonomy will be particularly threatened by the fact that councils (and, of course, those The PollTax: No who elect them) will lose the ability to decide their own Pritt Memorial levels of expenditure, since about 807o of income will come Representation from central government, as against 50Vo-60Vo at present. Lecture: A New European Perspective Thus a 17o increase in expenditure over government \ryithout Taxation? prescriptions will mean a 4Vo increase in poll tax. Ken Livingstone Ken Livingstone went on to outline his view of the long- term effects of the U.S.'s decline and to highlight the Immediately after the last election Margaret Thatcher Another Lawyers' Paradise Ken Livingstone, the guest speaker at this year's lecture, opportunities that this presented to the left to establish a declared her intention to 'deal' with the inner cities, and, give joy chose to speak about the effects and repercussions of the new European perspective. He predicted that the U.S.A. specifically, to eradicate socialism from local government. All of this may to some lawyers at the local government U.S. stock market crash upon the rest of the world. The The previous four years had seen the start ofan onslaught bar, and will no doubt give rise to much litigation generally. main theme of his speech was to urge socialists not to take a not only on the structure of local frnance, through But opponents of the poll tax include complacent view ofthese events, as they signifred part ofa rate-capping, but also on locally elected councillors in Michael Heseltine, Edward Heath, the National Union of (which major re-structuring of the concentration of power in the Lambeth and Liverpool who dared to attempt to fulfrl their Ratepayers'Associations said it will be 'administra- electoral mandates',.That punitive expedition continues: as tively complicated and costly and fundamentally unfair to a world. proportion Ken Livingstone began by describing the world power the present issue of SZ goes to press many other London large of the potential payers and benefiting structure that had existed since the second World War, Labour councillors stand trial. Now the government has unduly those who are in no need of any financial help when the centre of economic power moved across the decided to turn its guns on the wretched electors whatsoever'), the CBI, and Sir John Hoskyns, Director Atlantic to the U.S.A., then he highlighted the reasons for themselves. The pretext is that everyone who can vote in General of the Institute of Directors and former head of the government's the U.S.A.'s decline. He described how a massive imbalance local elections, and those who use local services, make a Policy Unit. in world power had existed during the period 1945-1965. In contribution to council spending. It must be of grave concern to socialist lawyers that the government 1945 the U.S.A. housed half the productive capacity of the On 17th November 1987 the government announced that should seek for the first time to tax many who wgrld. It was militarily supreme, secure from effective for England and Wales (except Inner London and Waltham have so far rightly been considered too poor to pay tax; and military challenge from the Russians and able to organize Forest) the poll tax will be introduced in one go on 1st April that electors should so blatantly be punished for their choice the wo¡ld as it chose. He explained how this power enabled 1990; in Scotland there will be overnight introduction on lst ofparty. the U.S. to create a system of international frnancial April 1989. According to The Independent of 78th institutions, beneficial to and supportive of its own November 1987, Tory backbenchers, following the lead of Threat to Civil Liberties economic structure, and to intervene on a military level the Tory Party Conference, won their case, by arguing that around the world wherever it chose. phasing in ofthe tax would confuse voters and prevent low The threat to civil liberties is equally worrying. The NCCL However, the costs of defending such a world empire spending Tory councils from gaining any political advan- has recently published a Briefing (No 7), dated October were prohibitive. He identified the turning point in threat to its economic Power' tage from the change before the next General Election. 1987, entitled 'The Privacy Implications of the Poll Tax'

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(price press; inspect that fìle, and where appropriate, have information 60p). To collect the tax, councils will draw up a local local estate agents; and private data sources like Pat McCarthy and Tia Cockrell register of all adults over 18, using the electoral register, trade associations which provide personal information to in it corrected or erased. The Scottish legislation provides other local authority files, and a questionnaire and their members; could all be used to provide information. for the individual to have access to and a copy ofthe whole door-to-door canva.ss. A 'responsible person' will be Indeed, the report suggests 'a mutual exchange of ofthe relevant entry in the register, but no right to correct designated for each household to provide information on the information'. that information if it is wrong, There is, as stated above, no adults within that house and will be liable to a fine for When John Maxton MP asked 'Will dustmen be asked to right ofaccess to any file kept'behind'the register. There is failing to do so. The register will be updated continuously, provide information that the amount of rubbish collected no right of appeal against refusal of access to either these A Regressive Act- adults having a duty to report any change ofaddress within from a household appears to have increased so it may be files or to the register entries for which the right of access is one month of moving. supposed that another adult is living in the house?', the provided. Where a couple are jointly and severally liable for The Green Paper insists that, in accordance with'British Minister replied 'That is a good idea', (Col 882). Elsewhere, tax the Scottish legislation allows both parties to see any The David Alton tradition', the register will be kept separate from other (Col 1030), Michael Ancrarh said; 'I am sure that local entry relating to the other; the implications for battered registers, and exchanges of information will be registered authorities will be a'ware of the bounds within which a wives are clear. Biil under the Data Protection Act 1984. NCCL points out that registration oflicer must work and will not be prepared to there is no safeguard in the proposed legislation, or in the volunteer information that is not necessary for the In English law the time limit for legal abortions is neither Data Protection Act, to prevent unnecessary information registration process'. As long ago as 1978, the Lindop 28 weeks nor, more contentiously 'viability', but the from being included. And, behind the register, there will Committee was concerned at the conflict in local capacity for being born alive as provided for by the Infant Life (Preservation) Act 1929, and preserved by section 5(1) of the Abortion Act 1967. David Alton's Private Member's Bill proposes to make abortion after 18 weeks of pregnancy illegal. The Bill will overrule the presumption contained in section 1(2) of the 1929 Act that28 weeks'pregnancy is prima facie proof that the foetus is capable of being born alive and, unless the facts show otherwise, not so capable before that time. Ilttæ|l The combined effect of the new Bill and the existing 1g6Z Act will be that, unless a woman's life is at stake, any æ medical termination of a pregnancy which has lasted 18 weeks or more constitutes a criminal offence punishable by Big Sister life imprisonment. The Abortion Act 1967 legalised a woman's right to have >Õ< an abortion inasmuch provided lltttt Implementation of the poll tax proposals will mean the as it a defence to prosecution under section 58 of the Offences Against the llO< creation for the first time, says the NCCL, of a complete list Person Act 1861. The new l---r-..o of the names and addresses of the whole adult population. Bill is an attempt, using the technological The government insists that each list kept advances of medical science, to undermine will be that right. enacted, thousands separately by each local authority, But since many people If of women will frnd themselves in the anguishing position of being unable to ,/ move between one authority and another, there will be {irt reject involuntary motherhood. \-7 t) strong arguments fo¡ making the data in all registers Of 8,276 abortions carried on women compatible to facilitate transfers of information. CIPFA out between the 18th and the 28th week ofpregnancy in 1986,393 were on therefore recommend the allocation to everyone of a women under the age of 16, and 2,492 'personal identifier' using an encoding of surname, initials on women between o the ages of25 and 29. The reasons for the abortion and date of birth. In a letter to the Guørdiøn 11th differed: of from damage September 1987 CIPFA stressed due to drugs, abnormality, disease of the that this was not a mother, hereditary recommendation for a national personal identifier. But disease, chromosomal abnormality in the foetus, known or suspected foetal abnormality affecting many people regard a national identity card system as the the management inevitable consequence ofthe poll tax. of the mother, malformation, rubella or NCCL makes the following recommendations: 'social reasons'. In Parliament today, there are two I There should be an undertaking, backed by legislation, distinct camps on the have to be a second, secret file, containing the notes, government between the need for effrciency and respect for that no universal personal identifier national abortion issue: the 'pro-life' lobby whose religious afÏìnities or data are exerting political anecdotès and suspicions the authority have about the privacy of the individual, The government's assuïances, base will be allowed to develop. influence in opposition to abortion, and a civil libertarian group principle individuals, to assist them in detecting those evading. The says NCCL, are questionable. 2 There should be severe restrictions on the kinds of supporting the of a 'woman's right to choose. CIPFA report 'Preparation of a Specification of User personal information which can be transferred, with a The abortion problem involves women's Requirements for the System of Community Charge in Registration monitoring system to ensure strict controls on transfer. fertility rights as 'Encouraging' well as their individual Scotland A Summary' (August 1987) said; 'the public 3 The community charge should not be exempt from welfare; these issues cannot be dealt with successfully under the concept of register will- need extensive support files including a In their report 'Community Charge/Poll Tax, The Facts', registering any transfers of information under the Data criminal liability. domestic property register, a record of those fully or September 1987, the Rating and Valuation Association and Protection Act, nor from any rights ofindividual access to partially exempt from payment of community charge, and Association of District Council Tleasurers indicated their their own files. Legislative History other records'. belief that 'millions' of people would attempt to evade the 4 The electoral register should be specifically excluded Although people will have the right to see their entry in poll tax. In consequence, a substantial section of the local from the proposals. From the gestation-focussed precepts of canon law the the register this right will not extend to the file behind it. If community will not register on the electoral roll and will be 5 As soon as one member of a couple who are jointly liable English common law evolved criminal sanctions against the this is a manual flrle, it is not covered by the Data Protection disenfranchised. claims that s/he is now separated from the other person, procurement of abortion. By the 13th century, abortion of Act. Ifit is to be computerised, access could be denied on the Further, the report suggests that an 'expensive and that person should no longer be allowed access to her/his woman 'quick with child' was a misdemeanour unless it ground that the file concerns the collection of a tax. intrusive inspectorate' will be needed to track down the entry in the Register. resulted in the death of the mother, in which case it was a During the Committee stage of the Scottish Bill, in 6 There should be a code of practice for those responsible felony and punishable as for murder.t January and February 1987, the Minister said; 'The main for enforcement. The common law was changed in 1803 by an Act, which place where the registration offrcer might look for 7 There should be penalties for unauthorised access to made it a felony to attempt to procure an abortion of a information would be other local authority services'. He personal data. woman who was not, or was not proved to be, quick with mentioned the housing department, applications for bus All of these are worthy of support within the context of child. As the law evolved during the 19th century the passes, season tickets for local authority facilities, library absolute opposition to the proposal.- It is understood that 'quicking' stage, used to determine prosecution under tickets, and applications for housing improvement grants. at present the government is consulting local authorities common law and earlier statutes, was altered to the 'with parlier Michael Ancram had said; 'It is common sense only on the detail of implementation. child' legislation and normally that enquiries to solicitors about who bought houses and so The poll tax proposals are entirely consistent with taken to 8 weeks ofpregnancy. on will be part and parcel of the information that he (the government legislation on trade unions, and with the The on Act 1861 established registration offrcer) collects to establish who is liable for the various changes to the criminal law and to the administra- criminal liability for a woman procuring her own community charge,'The CIPFA report suggests that: rent tion ofjustice in general. The effect will be without doubt to miscarriage only when it could be proved beyond rolls; housing waiting lists; registers of births deaths and djsenfranchise a large part of the population; to augment reasonable doubt that she was 'with child'. The same Act marriages; education authority records; planning and the growing army of spies and snoopers; and to extend still established liability for supplying abortificants or the use of building control records; gas, electricity and telephone further the role of criminal and quasi-criminal law into the instruments with intent to procure a miscarriage, records; local authority payroll records; insurance claims; democratic process. irrespective of whether the woman was with child or not.

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Nothing in the Act indicated whether abortion in any 1967 also saw the formation of the Society for the At present abortion consists in acting upon a woman with from a related illness called AIDS-Related Complex ('ARC'). circumstances might be lawful. Protection of the Unborn Child (SPUC). LIFE, another intent to prevent development of a fertilised ovum It has been estimated that between 60,000-100,000 people Many women risked death, serious injury, prosecution or implanted in the womb, whereas contraception consists in are HlV-infected without knowing it and it seems certain imprisonment irr their desire to rid themselves of an acting with intent to prevent such implantation. In the that the number will dramatically increase in the next few unwanted foetus. Criminal back street abortions continued, future, self-applied menstrual therapies may become a years. The tests currently available only detect the with terminations of pregnancy leaving many women regular method of birth control, for example, prostaglandin antibodies to the AIDS virus. This indicates no more than sterile. Others suffering after the use of dangerous suppositories may induce menstruation close to or after the that a person has been exposed to the virus and is abortifrcants died from poisoning or renal failure, from Since 1967 there have been numerous attempts to time of implantation. Analysed in terms of the advances of 'seropositive' (although an expensive antigen test has been toxi4s, from gangrene, or from embolism. restrict the potential for women obtaining a lawful medical science the suggested 18 week limit is an arbitrary devised which shows present infection by the virus). The Infant Life (Preservation) Act 1929, which does not abortion. Eight Private Members' Bills have attempted to one. According to Dai Harris of the Legal Services Group of extend to Scotland, created the offence ofwilful destruction restrict the availability of abortion. It was not until 1987, The interaction of contraception and abortion procedures the Terrence Higgins Trust, which counsels people with of a child capable of being born alive. The Act provided a however, following a campaign of advertisements showing should be clearly directed to the protection of women's AIDS, the number of legal enquiries he receivès has risen defence to causing child death if the abortion was effected a foetus sucking its thumb and publicity drives in schools, health, and as such comes into the realm of welfare and not sigaificantly over the last couple ofyears and now stands at solely to save the life of the mother. However, the Act left debating societies, on television and in professional criminal law. Anyone concerned to promote equal well over 100 per month. The majority of these are from serious doubts about the circumstances in which the magazines and periodicals, that SPUC and LIFE believed opportunities for women must also be concerned to ensure pe_gple with AIDS, or who are associated with people with abortion might lawfully be procured. they would have the opportunity to change people's that the allocation and distribution of health resources AIDS, who have faced problems obtaining life inìurance It was not until an abortion was canied out on a 14 year opinions and thereby influence Parliament. With the meets women's health needs. Abortion is one of those (30Vo), in social welfare (20Vo), or been discriminated old girl who had been raped by soldiers in 1938 that return of the Conservative government the scene was set needs. against in employment, housing and immigration. Issues of changes in public policy became possible. The man who for this latest attack. The debate surrounding the Alton Bill may change the privacy and confidentiality are also raised by certain future of carried out the abortion, Aleck Bourne, a gynaecologist and abortion in this country. Women most in need are questionnaires and the alleged illicit testing by doctors and member of the Abortion Law Reform Association (ALRA) Medical Technology those most likely to be the victims. The Bill should be hospitals. This spread mirrors the situation in the United was charged under the 1861 Act. At first instance opposed. States, Macnaghten J. held that'unlawfully'in section 58 required Recent developments in neonatal intensive care have the prosecution to show that the operation was not done to increased the chances of survival for foetuses delivered Reþrences English law save the life or health (physical or mental) of the woman.' before 28 weeks. Some doctors have found the existing limit I Tinkler's Ca,se l78l 1 East PC, CB 317. jury, no appeal was 2 43 Geo III c. 58 section 2. As Bourne was acquitted by the repugnant for this reason. In terms of biotechnolory, The number of legal actions actually commenced in the UK 3 R u Bourne [1939] 1 KB 687, supported by R u Bergmønn possible to test this ruling. however, it is hard to see where any realistic cut-off point ndreds ofenquiries could be established. (1948), R u Newton and Stungo (1958). (1987) only three become In the recent case ofC u Sn the Court ofAppeal found that 4 Fam. Law 987. 5 Cmnd.5579,L974. a foetus between 18 and 21 weeks old, unable to breathe i""iå"rT:t'"iå:i',"rt; naturaþ or with the help of a ventilator, was not 'capable English legal system to those who face AlDS-related of being born alive'within the meaning of the 1929 Act. In problems: 'Our advice is to avoid legal problems and the view ofthis decision, the further issue raised as to whether cou¡ts. In the UK the rights of people with AIDS are better foetus the had a right of action through its father as next protected by education than by law'. He sees the decision in friend, in preventing the mother from terminating the X u Y as' was principally pregnancy, was found not to arise. Linda Webster and Sands motivated lity ratherihan Repeated calls have been made for clarification of the Phillipe a desire to *ith AtlS *tto 'capacity for being born alive' criterion as laid down by the wish to be protected. 1929 Act. The Lane Committee favoured a strict limit of 24 weeks in 1974.6 In December 1987 the Royal College of Obstetricians and Gynaecologists, GPs and midwives, as well as the British Medical Association and the Clinical AIDS: The Legal Genetics Society, all gave their united support to a 24 week amendment to the Bill. Dr John Marks, chairman of the BMA's ruling council Issues said: 'The benefits of a reduction to 18 weeks are nil. The disadvantages are enormous and cannot be justifred on The recent case of X u Y and a.notlrerr appears to be the first the great problem of putting people, some of whom are scientific, clinical or humanitarian grounds. Survival before in which a legal issue raised by Acquired Immune seriousþ ill and wish to be protected from the public eye, 24 weeks is almost nil.' Defrciency Syndrome ('AIDS) has received the attention of through the trauma of a public court action. Fuither thére Many serious foetal malformations cannot be diagnosed an English court. Rose J held that the public interest did is a_related problem ofstanding to sue in the case ofgroups 18 Amniocentesis not justify a ne\ryspaper publishing or using information until after weeks. the main test for such as the Terence Higgins TYust. Dai Harris nevertheleis reform abortion law. Downs Syndrome cannot be undertaken- until the 16th disclosed by a health authority employee to a journalist, in Parliament in the 1930s failed to believes that there is 'a clear need for the government to t and recommenda- week of pregnancy -because of the risk to miscarriage to the breach of contract and an admitted duty of confidence, in recognise the rights of AIDS victims'and that much can be ion be amended to mother. It is preferable to undertake these tests in the 18th order to identify practicing doctors who have been treated learnt from the way that the US has dealt this performed bY a for AIDS at an identified hospital. with was or 19th week to ensure that there is suflicient fluid with rights-orientated approach. The Issues raised by AIDS are likely to receive increasing lack of remedies available 'likelY to endanger which to undertake the testing and cultures required. This under English law, and the im combined attention from lawyers. In this article we consider the the mother's life or seriously impair her health'. test, with ultrasound scanning, can identify and Parliamentary action, suggest to isolate potential of the English legal system to deal with these In 1952 Joseph Reeves MP unsuccessfully attempted structural and other defects in the unborn child and tion of Human Rights and Eur given issues and look at the practice in the United States which introduce a Private Member's Bill to legalise abortion. the information to the mother. At this point it is the provide the only meaningfu 1954 and mother's choice suggests alternative ways of coming to grips with There were further unsuccessful attempts in whether to continue carrying the child or rights of AIDS carriers in the are AlDS-related legal issues. UK limited if they exist at 1961. It was not until later and the thalidomide tragedy have an abortion. These women will be statute barred from all. making such a choice if the 18 week limit is enacted. Another test Chronic Villus Analysis (CVS) carried 3 out in the 10th- week of pregnancy, can -ascertain US law In the UK the rights of people with AIDS are better protected by education than by The situation in the US is markedly different. Rights of gain suffrcient support in the House of Commons. t"* minorities, including people with AIDS, are protected by 1967 saw David Steel MP presenting a Private Member's the Constitution. The legitimate right of the population at Bill. It provided, as was later enacted, that pregnancy could t large to prevent the spread of AIDS will be limited by the be terminaùed on the agreement of two doctors if: rights of AIDS carriers to have their civil rights to liberty, 1 the continuance of the pregnancy would involve risk to privacy, property, free association and free expression the life of the pregnant woman, or of injury to the AIDS is usually fatal and there is no known cure. As of protected. A recent Note in the Harvard Law Review' physical or mental health of the pregnant woman or any September 1987, over a thousand people in the United concludes that pre-AIDS cases in the US provide little existing children of her family greater than if the Kingdom had been diagnosed with AIDS. It occurs when a guidance to modern courts in evaluating the regulation of pregnancy were terminated; or, person with an underlying disturbance in immune function, AIDS. The Note reaches the conclusion that quarantine, 2 there would be a substantial risk that if the child were caused ly infection with the Human Immuno-deficiency restrictions on the association of gay men, mandatory born it would suffer from such physical or mental Virus ('HIV'), develops an opportunistic infection which hii testing and reporting requirements, discrimination in abnormalities as to be seriously handicapped. or her body is unable to frght off. Many more people suffer public employment and restrictions on attendance at public

6 7 hospital discriminated against him on the grounds a schools would all be unconstitutional under US law. of elsewhere, particularly as the likely remedy of compensa- perceived fear that he was contagious, this case AlDS-related litigation in the US, both at Federal and may be the tion would in most circumstances be inadequate. first to challenge the Justice Department's opinion that State level, is increasing rapidly. We focus on this litigation, The Rehabilitation Act, as interpreted by the US AIDS discrimination is not illegal under section 504 the in two areas, because we believe that it provides the reader if Supreme Court, provides a model which might be used in employer's actions are based on a fear of contagion. with some of the possible options for development and the UK. The rights of people with AIDS may eventually discussion in the context of AlDS-related litigation in the only be protected by the European Convention for the UK. Privacy, Sodomy Law and AIDS AIDS and discrimination in the workplace In 1982 a Mr Baker sought to have Texas'sodomy statute," which criminalises sexual acts between homosexuals, Public knowledge that an individual is suffering from AIDS declared unconstitutional." He challenged the statute on or ARC will frequently result in discrimination in the the basis of what he argued were his constitutional rights to way to protect privacy rights. workplace.' People with AIDS who suffer employment privacy and equal protection. The District Court extended Where should we go from here? Dai Harris' scepticism discrimination in the US have already turned to the legal the right to privacy - which had previously only been held about ther role English law might play shines through: system to seek protection. A number of decisions are to apply to marital sex and procreative choice - to private 'Lawyers must start by learning the facts about AIDS. pending but no case has yet decided the question ofwhether homosexual conduct between consenting adults. The court Helping means listening.' or not an individual has been discriminated against in the then reviewed the statute and applied what is known as the workplace because she or he is suffering from AIDS or rational reløtion test to discover whether it served a Reþrences ARC. AIDS has been defined both at Federal and State compelling State purpose suffrcient to justify limiting the 1. Times Law Report, l1th November 1987 level as a 'handicap' within the meaning of the right to privaiy. The rational relation test requires that the 2. The Constitutional Rights of AIDS Cørriers,99 Harv. Rehabilitation Act 1973. This is the frrst step in challenged statute be unrelated to a legitimate State L.R. 1274 (1986) determining whether or not employment discrimination interest in order for it to be held unconstitutional. The,court 3, See Carey and Arthur, The Deueloping La,w on AIDS in has occurred, since there are various laws in the US which held that although the State isjustifred in regulating rape the Workplace,42Maryland Law Review 284 (1987); AIDS: prohibit employment discrimination against handicapped and sexual acts with minors - that interest does not extend Does it QuøIify øs a'Høndicøp' under the Iiehabilitøtion Act individuals laws which have no counterpart in the UK. to private consenting sexual conduct. 1973 6L Notre Dame Review 572 (1986) - In reaching its decision In the UK the Disabled Persons (Employment) Act 1944 the District Court considered and 4. See Manpower Services Commission, Codes of Prøctice rejected the argument the justifred as amended by the 1958 Act, places a duty on employers that spread of AIDS the on the Employrnent of Disabled People with 20 or more workers to'employ 'registered disabled Texas sodomy statute. The court analysed the position of 5. 55 USLW 4245 (US March 1987) AIDS relation sodomy people' (TVo of the employer's total workforce). It is not an in to the statute and came to the 6. Reprinted in Daily Lab. Rep (BNA) no.722 at D-I (25th conclusion that the grossly offence to fall below the quota, but in this situation an statute would only approximate June 1986). goal preventing (7) (6) employer has a further duty to engage suitable disabled to the of the spread of AIDS for the 7. 29 USC 706 (1982) following reasons: people if any are available when vacancies arise.o This is as 8. See note 3 above; at page 290 1 the statute is under-inclusive because prohibits (BY) (C1), (al. far as it goes. There is therefore no effective UK legislation it the 9. No. 886-609 AHS 17th November 1986) protecting disabled people from discrimination in the sexual acts of only one high risk group and ignores 10. No. 8614235 (District Ct. La.) haemophiliacs and needle sharers; workplace, Developments in the US make it clear that the 11. Tex. Penal Code Ann., section 21.06 over-inclusive prohibits lack of legal protection for disabled people in the UK may 2 the statute is because it the 12. See Bøker uWøde 533F. Supp. 1121 (N.D. Tex 1982) ultimately affect the legal position of those suffering from sexual acts ofall homosexuals regardless ofwhether they 13. See 769F 2d 289 (5th Cir 1985) have AIDS or ARC. AIDS ând ARC. 14. Spiegel, Priuøcy, Sodomy, AIDS ønd, the Schools: Cøse meaning of section 504. follows from the decision in Studies Legal Protection, 1986 Until the US Supreme Court decision on 3rd March 1987 It On appeal the 5th Circuit Court reversed the decision of in Annual Survey of Arline that anyone who is not only seropositive but also has American Law, page 221. in School Board Nøss?tu County, Florida u Arlineu the most the lower courttt and found that the statute was a of impairment associated with 'rationally significant opinion on whether AIDS is a handicap was a an impairment or history related to a legitimate State interest in implementing ARC should be protected within the meaning of Memorandum issued by the US Department of Justice in AIDS or morality'and that implementing morality is a permissible section 504. Arline leaves open the question of whether a June 1986.6 The Memorandum explored the question of State interest. Although 5th Circuit upheld the óiúiôur.r pur*', positive result itself would constitute impairment the whether AIDS is a handicap within the meaning of Section test constitutionality ofthe sodomy statute on different grounds þ section 504. has been suggested that future þ t¿J". ' 501 of the Rehabilitation Act which prohibits discrimina- under It the District court decision remains an important step in þ(ñ- i,*rõ litigation in this area will focus on whether contag:iousness, 'dtaht t tion against individuals in programmes conducted or recognising that the prevention of AIDS does not justify g-õI4". more, qualifies as an impairment. funded by Federal agencies. The following statutory without widespread limitations on homosexual conduct. The 5th tfidofu There has to date been only one Federal Court decision on tl* definition ofhandicapped individuals applies by section 504: Circuit in Baker justifred the Texas sodomy statute on ul;d the specifrc issue of whether AIDS is a handicap.InThomas t;11.- 'Any person who (Ð høs a physicøl or mental morality grounds and therefore did not address the AIDS to*;t4 School Districf, California ol,'il* impairment which substøntially limits one or more of u Atøs Cadero Unified the issue. Federal District Court granted a motion for a preliminary 6llfà.". such person's major life actiuities, (ü) høs a' record of The Circuit invalidate *lL.t # injunction filed on behalf of a child with AIDS who was Court stated that it would such øn írnpairment, or (iü) is regarded as høuing such legislation under rational prohibited from after he bit a class its relation test only if that an impøirment.'7 attending kindergarten legislation pursuit mate. The court held that AIDS is a protected handicap was 'totally unrelated to the of a that legitimate State goal . . points Applying under section 504 and that there was not suffrcient .'. As Spiegel out in an be a article,la 'because some of the conduct criminalised by the although evidence to show that the child's presence in the class room efore Statute might spread AIDS' the Circuit Court may have substanti created a risk that the disease would be transmitted. In concluded under the highly'deferential test' used in Baker addition to Federal law several US States and localities prevention AIDS that the of AIDS justifred the Texas sodomy have declared discrimination against individuals with statute. The Circuit unlawful. Some governments San Francisco, Los Court's decision indicates that the city courts in future may justifrcation Angeles and Philadelphia have- enacted special ordi- accept an AIDS related for sodomy statutes nances prohibit - based AIDS in areas if they apply a deferential rational to discrimination on relation test similar that such as housing, public accommodation, educational to used by the Bøker Circuit those who test positive for antibodies to the Court. Ifso, sodomy statutes enacted prevent Furthermore, institutions city facilities. In the UK, the enactment of to the spread by the disabling effects and be upheld. AIDS virus but who are not afflicted progressive government is of AIDS would 41Jú4,. protection whatsoever such legislation by central ¡tl6 of AIDS or ARC, would have no e:qt. almost inconceivable. Conclusion

We seriously doubt wþether English law can adequately protect people with AIDS from the discrimination which they are undoubtedly experiencing, both in the public and criminatory action against people with AIDS if they fear private sector, or from an invasion oftheir right to privacy. pass even if that fear is the sufferer may on the virus In the employment context it might be possible to argue ^â irrational. before an industrial tribunal that to dismiss someone recent decision in Arline (consider- The Supreme Court's because she or he has AIDS amounts to unfair dismissal. *tfl¿¡ ing the status of a woman with tuberculosis) decided that a This view has been expressed by the Department of %. person who is both contagious and has either an existing or Employment. We do not believe that this is sufficient to recorded record of impairment is handicapped within the prevent discrimination in the workplace, or indeed

8 9 --

examination to concocting their evidence; to get their papers in order. Finally, after a second defence the offrcers were the police is laudable in theory. It is also true to say that adamant that the show should go question June Tweedie application to dismiss the charge, the magistrates told them on. The agent in some of the examples outlined here might also have did in fact refuse to to prepare the committal bundle that day or have the case continue, but how many times do such occurred under the old system. Some others may have been trials proceed, thrown out. The CPS frle was incomplete, a number of due to the agentls inexperience in the face of caused primarily by lack of funding forcing the use of original witness statements having gone missing, Even- misplaced police optimism or lack of objectivity? Hopefully overloaded and under-experienced agents. Enough has the result tually they put together what they had and appended a will be an acquittal but, again, court time is been written about the inadequacies of the system to make wasted hand-written list of charges. The defence requested an and the CPS is compromised. further in-depth analysis repetitive, but what cannot be The CPS: OnThe Magistrates themselves old-style committal with no witnesses. The one live witness can be exasperated by the CPS, avoided is the conclusion that the organisation ofthe CPS is who would have been relevant at committal could not be An unfortunate agent was recently 'sacked' by the often nothing short of a shambles. Although superficially Front Line called; her statement was one of those lost off the back of magistrate for incompetence. Another was strongly amusing, the consequence of each administrative mishap is the ubiquitous motor bike. criticised for not knowing the individual cases and reading to make heavier and heavier demands on the 10.20 am., Court 2, Horseborough Corner Magistrates verbatim from the file. At a recent summary trial the overstretched and threatened Legal Aid fund;- on the Court. The cÒurt list shows 55 names, 55 defendants prosecutor did not turn up at all; the frle had been left for patience of all those involved day to day in the Magistrates' subsumed into the Process of Justice. The noticeboard is collection but the agent apparently knew nothing about it. Courts; and on the beliefs of individual defendants that engulfed by new arrivals, necks craning, scanning the close their cases will be dealt with fairly and effrciently. typescript. Others, unfamiliar with the system, mill around, Heavy Demands At Horseborough Corner this morning, no one is happy: anxious and bewildered. Their legal representatives bustle the CPS agent is muddling through, the magistrate is purposefully back and forth, attempting to prepare for the It is not the intention of this article to criticise the very becoming irrascible, the defence lawyer is infuriated, and few short minutes of court time allocated to each case. existence ofthe CPS. A prosecution service independent of the defendant is still anxious and bewildered, Ten minutes to go before kick-off and something is missing. rffhat øre the prosecution's objections to bail? How strong is that prosecution evidence? Have those committal papers been prepared in time? Fundamental questions you âqll may think, but with no answers forthcoming: Where is the prosecution?! In some courts it is possible to 'go through the gaolers' Jeremy Smith offrce, out the back, down the steps, along to the next building, turn right and it's the third on the left'in order to find this elusive but essential bearer of good, bad or {f*- Can UJOr-mS indifferent tidings. All too often, as at Horseborough Corner "+ this morning, there will be a collective twiddling of thumbs until 10.25 am five short minutes before the usher's or c. r.s The Education Bill-Towards the Break stentorian 'Court- rise!' stifles meaningful discussion. However, our intrepid lawyer today still has frve whole Two months and more sleepless nights later, the Up of State Education minutes to put that alternative plea for consideration, to committal day dawned and a new bundle was served on the frnd outjust how strongly bail is opposed. dêfence at court. Not only had the missing statements Some economic theorists claim to discern a cyclical pattern It was the very imprecision of the 1944 Act's framework And lo! in the distance appears a pile of white frles with reappeared, but the charges had been substantially of recession which recurs approximately every 60 years. which enabled later developments, including the move from legs staggering beneath; a bipedal frling cabinet. It makes a amended. The client had two options: adjourn to the frrst Education reform analysts have now discovered a new 20th grammar schooVsecondary modern duality to the compre- dash ftir the safety of the court through the assembled date available - another two months hence - or go ahead, century education cycle of more precise quantifrcation; hensive, to be incorporated without destabilising (and crowd and is instantly submerged beneath a throng of without cross-examination of the witness and with hastily major new legislation is introduced every 42-44 years. almost without amending) the Act's edifice. impatient and garrulòus members of the legal profession. prepared submissions on the new charges. In the light of In 1902, secondary education was 'legalised', following We now live in a very different age. Even before the 1988 So much for an in-depth discussion, but never mind - the such a Hobson's choice, the committal went ahead. To add judicial findings in the 1890's that non-elementary public Act comes into force, legislation since 1980 has steadily information will be on the file. insult to injury, it then transpired that the CPS had no education was unlawful, and local education authorities changed the roles ofthe educational partners, introducing Unfortunately, the information on the frle is the bare original exhibits at court. A stipendiary magistrate might were established. The 194I Education Act created the long- far more statutory control and precision. The 1980 miniinum. Previous suggestions or requests by the defence well have dismissed the charges as a result, provoking the standing framework of educational partnership between Education Act gave more prominence and por¡/ers to school have not been noted. A proposed plea to a lesser offence, put CPS into examining their ineffrciency. As it was, the lay central government, local education authorities and the governors, whilst the 1986 Education Act, in effect turned forward two weeks before, never got back to the bench committed the case and the CPS came off none the churches. governors into a major educational þartner with very powers-that-be in the CPS. The agent on the subsequent worse. substantial functions and greater independence from occasion inevitably new to the case then has to Further examples of a lack of oversight by the CPS 3 LEAg. The 1986 Act created a new and unstable formula evaluate the- matter afresh, after a cursory- skim through abound. They include charging defendants held in custody If implemented, these measures for developing a school policy on the secular curriculum; an the þapers in the hurly-burly ofcourt. The result: refusal to with absconding, and going ahead to summary trial without will LEA set out its policy, which the governing juveniles body could consider or another adjournment. even prima facie evidence. TWo were recently change the face of the educational map for amend, leaving the Head to implement the LEA's policy Anecdotes about the CPS are legion. Some are amusing, charged with theft of a car radio. There \ilere no admissions at least a generation save to the extent that it was amended by the governors. just statement. The had rtrhilst others frustrating, some plain ludicrous. But almost all and no loser's solicitors involved , LEAs have a resetve power to intervene in a school have serious implications for both defendant and Legal Aid repeatedly pointed out these inadequacies but nothing was in which discipline is breaking down, they have no explicit fund; delay and confusion are recurrent themes. Some done until the trial date: the charge was then dropped. The The 1944 Act established a set of fundamental (if hardly statutory right to intervene where a school is failing in problems arise through underfunding and understaffrng of police officers had not appreciated the legal problems but, enforceable) statutory duties. The Minister of Education educational terms. the CPS. Many prosecutors are agents, often green more seriously, neither had the CPS. Expensive court time latterly the Secretary ofState is required by section 1 -to The 1988 Act, however, is intended to go much further. second-six-month pupils, picking up their pile of frles the and legal costs were unnecessarily thrown away. 'promote the education of the people- of England and Wales The Bill as introduced contains provisions on: night before and dealing with all the unforeseen but and the progressive development ofinstitutions devoted to * a new national secular inevitable problems on their feet. Some obviously feel under The CPS Agent that purpose . . .'LEAs, for their part, were given the duty, curriculum * compulsory admissions pressure from their superiors to contest matters in open by section 7, 'to contribute towards the spiritual, moral, to individual schools up to the court, despite previous informal agreements with the mental and physical development of the community' by 'relevant standard number' defence not to do so. Others will not allow the defence prior securing that eflicient education during the primary, * compulsory financial delegation from LEAs to schools * the introduction sight of the evidence on a summary charge, making it secondary and further education stages was available to of a new category of grant-maintained schools which choose impossible to assess the strength of the case. Sometimes it is 'meet the needs of the population of their area'. More to 'opt out' of LEA control * creation even difficult to establish which incident has resulted in the practically, by section 8, LEAs were given the duty to the of a new legal framework for further education charge. Taken to extremes, a sight of the evidence can be secure the availability of suitable full-time primary and * the reorganisation provision conditional on revealing the defence case something the secondary education and of schools suflicient in number, of and funding of higher - education (in essence, polytechnics prosecution should never try to elicit. return to base. Catch22. character and equipment to provide an appropriate variety removing from LEA control) of instruction and training. Modern further education is * the based only loosely on the 1944 Act's provisions (some of withdrawal of individual London boroughs from the Disorganisation Inner London which have never been brought into force). For the rest, the Education Authority, and the potential winding up of the ILEA. Such practices within the CPS are, however, less common secular curriculum was scarcely touched upon, whilst the than is good old-fashioned disorganisation. A recent case religious curriculum received copious statutory attention, If implemented, these measures will change the face of gives some insight into its prevalence. A defendant, ofgood appropriate to its then contentious character. School the educational map for at least a generation. In their character and suffering sleepless nights awaiting trial, was governing bodies were required, but their functions totality these provisions seek to demote LEAs to a mere subjected to remand after remand while the CPS attempted scarcely received statutory attention or definition, back-up administrative role. As with the Housing Bill, the

10 11 BALLOTONRULE CHANGES

r) The Executive Committee has received numerous proposals groups, specific oppressions and aspirations, yet fail to for rule changes. In accordance with Rule 25,the rules may identify with any wider socialist vision. If people are to only be amended by resolution of the Society passed by a identify more positively with us our 'label' must be one t postal ballot. In order to assist the members, we have asked which they can recognise and respond to. Whilst 'Haldane proposers and opponents of these amendments to Society'has served us well in the past, we must also be able E Duc.nT t )) summarise briefly their arguments for and against the to present ourselves as an organisation relevant to future amendments. challenges. Please answer YES or NO to each of the questions set out Robin Oppenheim, Keir Starmer BILL below, detach these pages and return them to BEVERLEY (ø.t. LANG, 1 DrJohnson's Buildings, Temple, London EC4 NO Statement Against LATER THAN 2nd MARCH 1988. ilrltt The count will take place at the above address on At the Society's AGM earlier this year a majority was llvç.'i I SATURDAY 5th MARCH at 2.00pm. secured for a resolution to change the name of the Society by dropping the name 'Haldane'. We are writing as members and offrcers of the Society who have belonged to it Change of name of the Society and supported it for many decades, and who are deeply concerned at this proposal. Because it involves a rule change the proposal requires ratifrcation in a postal ballot QUESTTON I of members, and the purpose of this letter is to ask you to make sure that you use your vote to prevent it from taking DO YOU WANT THE NAME OF THE effect. ORGANISATION TO BE CHANGED? rWhile nobody supposes that the name of the frrst Labour Lord Chancellor would be chosen if our society were YES / NO founded today, the name is an important part of our history. It is known throughout the British trade union [Explønøtory nöte: This is a ballot pursuønt to Rule 12(ÍÍ) movement and throughout the world as the name of which empowers the Executiue Com¡nittee to cause a postal Britain's organisation of socialist lawyers. Our many ballat to be takenrupon øny mattey'.It is not a ballot for a achievements over more than half a century are associated rule change. If there is ø majority uote against changing the with it. To drop it would take away not only part of our history but much of our identity. It would require us nøme, the nøme will remøin the Haldøne Society of'there Sociølist Lawyers ønd there witt be no further ballot',-If is a repeatedly to re-establish our credentials, and some of the majority uote in favour of chønging the name, we will credit and standing which we would lose by it would not proceed to bøllot the mernbership a second time on return. alternatiue choices of nøme (e.9. Nøtional Association of It is now some years since the Society adopted the full SociøIist Lawyers, National Society of Sociølist Lawyers, and explanatory name of the Haldane Society of Socialist etc.). When the membership has indicøted its preþrred Lawyers, which both preserves our origin and history and choice, we will then proceed to ballot the rnembership a third describes our political character. Nothing is therefore intent is to downgrade local democracy until, once poll tax time on the proposed rule chønge to Rule 1 which contains gained and a great deal will be lost by now removing the Admission of Pupils part is in place, local political discretion and accountability the nøme of the Society. The EC will be offering free legal of our name which identiflres us to lawyers and many others in Britain and all over the virtually cease to exist. Under existing law, as part of the of planning aduíce sessions to all members who find this proced,ure world. þrocess Please ensure by your vote that this unfortunate step is educational provision their area, LEAs have power incomprehensible,J within reversed. The National Curriculum limit intake of pupils into schools maintained by them. to Platts-Mills, President; The Bill provides for this limit to be removed, requiring Statcment in Support John Kader Asmal, Vice- president; Jack Gaster, Vice-president; Tess The 1987 Bill breaks new historic ground in the UK by schools to admit pupils up to the 'relevant standard Gill, Vice- president; Jack Hendy, Vice-president; Helena statutorily requiring certain specified subjects to form a number', in effect the physical capacity of the school. This The proposal, which we put forward at this year's AGM, to Kennedy, Vice-president and past Chair; O'Higgins, Vice- major part of the curriculum. Excluding intricacies relating will have the consequence of filling 'popular' schools to drop'Haldane'from the Society's name goes beyond merely Paul president; Stephen past to the teaching of Welsh, the required curriculum capacity, leaving less popular schools with smaller intakes, jettisoning an anachronism. It is our belief that the present Sedley, Vice-president and Secretary; comprises'core' subjects (mathematics, English, science), thereby undermining their viability. name is a symbol of our inward turned attitude: our image Michael Seifert, Vice-president and past and'foundation' subjects (history, geography, technology, as a London orientated Barristers'club. In the context of Secretary; David Turner-Samuels QC, Vice-president music, art, physical education and, from the age of 72, a the present hostile political climate the inevitable attacks and past Chair; Professor Lord Wedderburn, Vice- modern foreign language specified in an order of the Delegated Financial Management on civil liberties, jury trial, legal aid and the legal rights of president; Benedict Birnberg, past Secretary; Harry Secretary ofState). For each offour key stages ofschooling, trade unions will require us to turn ourselves outward and Rajak, past Chair and Secretary; Jeremy Smith, past the curriculum must specify the 'knowledge, skills and The Bill requires all LEAs to prepare schemes, to be to build an effective national campaigning organisation. Secretary; Nicholas Blake, past Secretary. understanding' which pupils 'of different abilities and submitted to the Secretary of State, for allocating to each The use of the name 'Haldane' obscures our purpose and maturities' are expected to have by the end of each stage. maintained school their'share'of the authority's budget, to perspective and restrains us from giving effect to the great Statcment Against Also to be specified are the 'matters, skills and processes' be managed by the school's governing body. A school's potentiality of the left in the legal sphere. If we are to In recent months the Crime Subcommittee has been comprising 'progtammes of study' which are required to be 'budget share' is to be calculated by a specifred formula attract a wider membership and forge campaigning links heavily involved in challenging sweeping changes put taught in each stage, together with the arrangements for which must take into account the number and ages of with other progressive forces we must confront this forward in the Criminal Justice Bill. Our work has included assessing pupils at or near the end ofeach stage in relation pupils, and may take into account 'any other factors problem. preparing submissions for MP's, meeting and discussing to attainment targets. The Secretary of State may amend affecting the needs of individual schools'. Excluded from The main argument put forward at the AGM against these measures with Labour MP's and seeking publicity for the list ofcore and foundation subjects, and the key stages calculations of schools' budget shares are capital expendi- changing the name was that of 'name recognition'. Of our criticisms in the media. prescribed (which in the Bill are: up to 7, 8-11, L2-14, 15 to end of ture, debt repayments, expenditure met from course it is true that, in legal circles in the UK, at the We feel strongly as a result of these experiences that our expenditure compulsory schooling). The provisions of the national government grants, and other items of International Association of Democratic Lawyers and in work in this area will be inhibited if the Society adopts the curriculum are laid down by the Secretary ofState through prescribed by the Secretary of State. the wider labour movement, the Haldane Society is well- proposed name change. It is an unpalatable but realistic ' the governors an Order. Each LEA and governing body has a duty to A school's-budget share ls to be available to known and respected. Nonetheless, the Society must face fact that many Labour MP's are much happier about secure the implementation of the national curriculum. The up to the fact that there are a great number of people to relying on advice from organisations which are not overtly Bill also establishes bodies appointed by and to advise the whom the name means nothing, leaving them wondering socialist. (The Society is, of course, usually referred to as Secretary of State. By clause 15, each LEA is required to just who and what we are. the Haldane Society.) In our view a similar argument make arrangements for dealing with complaints that the In 1987, against the backdrop of a third and possibly applies to the media. national curriculum is not being duly implemented; any historic electoral defeat, the whole of the left, including We are socialists and proud of it. However, the real issue person aggrieved may thereafter make formal complaint to socialists working within the law, find themselves in a at stake is the Society's future input into and influence over the Secretary of State. severe crisis of identity. Individuals identify with their own legislative change. In our view the effectiveness of the

12 13 Society will be severely impaired by the proposed name Lawyer, the Employment Law Bulletin, the Worker's Branches and the AGM group which organises local meetings and campaigns on change and that is the paramount consideration. Charter and the Wapping Report.) local as well as national issues. Such groups may well Crime Subcommittee 3 These are all practical measures which will help to build [Erplønatory note: The purpose of the amendment is to give consider becoming branches and should be encouraged to a national organisation. In contrast, a rule change branches the right to propose motions to the AGM. do so. To encourage both the formation of branches and requiring AGM's to be held in the north in alternate Individual members and affiliated organisations already groups who are not branches to join the Society should years is largely a symbolic gesture, for two reasons. First, haue thøt rþht. RULES 10, 11 and 12 relate to the Annual ensure that such persons feel that they may have a voice in Venue of the Annual General the AGM is a members only event and therefore, unlike a General Meeting. From a drafting point of uiew, the easiest the Society's affairs. The right to send a delegate to EC Meeting conference or pubìic meeting, it cannot be used as a way to giue ø branch the power to propose rnotions or røise meetings but without a vote is an empty right. Out of means of attracting prospectiue members in the north. other møtters at the AGM is to incorporøte it within the London members through the branch delegate will bring a pretend welcome of town perspective RULE TO(i) Secondly, we cannot that an AGM in the north definition of 'member' for the purposes of these rules. Thís out on issues and campaigns. years even begin to needs of A truly national organisation with many yet At present it reads as follows: every two would satisfy the has already been done for øffiliøted organisøtions.l branches may London members Society be some way offbut if the time does come '(i) An AGM of the Society shall be held at intervals of not out of who want to see the when the number provide ongoing programme of activity in areas. of branch delegates outnumber elected less than nine nor more than flrfteen months, notice whereof an their d RULE 12(ix) the EC members The political usefulness of making a symbolic gesture of then should be a time for rejoicing for the shall be sent to each member and affiliated organisation not 4 ) At present the rule reads as follows: it Society will be then be national less than 30 days before the day agreed therefor by the this kind has to weighed against the disadvantages of 'No persons other than members shall be present during a truly organisation. The constitution of practical the the Society need Executive Committee.' doing so. The effect of regularly holding I the AGM unless the Executive Committee or the meeting as a whole may then changing, in the AGM north be to deter the vast majority of meantime we should be doing all that we can to The proposal is that the following words should be added in the will otherwise direct, and for the purposes of this and the ensure that policy socialists outside at the end of Rule 10 (i): members from participating in the making preceding rule 'member' shall include an afliliated Londonjoin the Society and form regional 'The venue of the AGM shall alternate between the process. This is because the overwhelming majority of organisation.' branches. members live in southern England (see the schedule of Christine Dawson, Manchester Branch Northern and Southern regions of England and Wales at a The proposed arnendmenrl is to delete all words after to place chosen for the purpose by the Executive Committee.' members below), We are already finding it diffrcult 'direct'in Rule 12(ix) and include a new Rule 12(x) to read persuade rrçmbers aged over thirty with children to as follows: attend AGM's and moving the venue hundreds of miles QUESTTON 2 'Rule 12(x): For the purposes of Rules 10 and 12 inclusive, from most members' homes will only exacerbate that 'member' shall include an afliliated organisation and a RULE 6 problem, particularþ for women. The inevitable consequ- branch ofthe Society.' present DO YOU ÏYANT THE RULE TO BE ence will be that the AGM in the north will be dominated At it reads as follows: AMENDED IN THE FORM SET OUT by an unrepresentative group of EC members and new '(i) With the consent of the Executive Committee, branches QUESTTON 3 of the Society may be formed and carried on in any locality. ABOVE? young members who can spare the time to travel. The (Ð bulk of the membership will be excluded, This would be Only mctnbers of the Society or of øffiliøted organisø- perfectly acceptable for weekend conference or an DO YOU IVANT RULE 12 TO BE tions møy be members of any branch. YES / NO a (ä1) evening meeting but it is an alarming prospect for an AMENDED IN THE FORM SET OUT The m.embers in a brønch may appoint their own officers ønd comrnittee a.nd conduct their own business in Statement in Support annual policy making meeting. ABOVE? The schedule below is a geographical breakdown of the oncordøtrce with the objects of the Society. 5 (iv) membership based on the May 1987 list. Several points A brønch ma.y prouide for its own members its own The intention of this proposed amendment is to show YES / NO rüles, provided thnt such ødditionøl brønch rules are clearly the Society's commitment to encourage out of emerge: members 7s øpproued by thc Executive Com.mittee. This includes the London membership. Although under the present rules the a) that although there are 7a country to Statementin Support members, members are power to chørge such ødditional subscription as møy be AGM may be held anywhere, in practice it has always been Iondon many of the 'country' living in places like Richmond or Croydon which are d¿tertnined by the branch committee. held in'London, despite the fact that approximately one Since individual members and affrliated organisations have (v) part of London although they do not have a No member of the Society or any branch thereof shall third of the membership live outside London. The Special effectively the right to propose motions to the AGM, it is clearþ Iondon postal code; use the name of the Society or any substantially similar General Meeting held at Leicester in June showed that inconsistent that branches do not have such a right. the number of members in the north is a small name or pledge the credit of the Society, nor hold himself, many out of London members are keen to participate in the b) that Suzanne Bailey, Manchester Branch percentage membership about 75 of a herself or itself out as an agent of the Society without a Society and it is hoped that by stating such a commitment of the whole out of - resolution of the Executive Committee of the Society. and carrying it into practice the image of the Society will total individual membership about 750; (vi) c) that London is by far the most accessible venue for The Secretary of every branch shall keep minltus of gradually become less London centered. the transactions of the branch in such form as may be Christine Dawson, Manchester Branch most members, bearing in mind location and road and rail communications. Branches directed by the Executive Committee, and shall send such minutes to the Executive Committee on request and shall Statement Against RULE 5(vi) comply with the decisions of the Society. present Schedule of individual members At it reads as follows: (vii) The treasurer of every branch shall keep proper This proposal could easily impose an intolerable frnancial entitled send a NORTHERNIRELAND 2 'Any branch of the Society shall be to accounts of all monies received and paid by him or her and and administrative burden on the Society and its oflicers, Executive SCOTLAND 4 delegate being one of its members to the shall generaþ act in conformity with the directions of the and, so long as the greater part of the Society's membership have no to vote IvVALES: North 1. South 5. Committee, but such delegate shall right Executive Committee and of the Treasurer of the Society.' is situated in one part of the country, an unreasonable thereat.' EASTERN ENGLAND: Cambridge 3. Peterborough 2. expense to those of that greater number who wish to The proposed may TOTALs The proposal is that the rule should be amended to read amendments are as follows: attend future AGM's. as follows: Jack Gaster, Vice-president MIDLANDS: Birmingham 4. Coventry 6. Leamington Spa 'Any branch of the Society shall be entitled to send a In respect of Rule 6(ii): That the rule should be deleted so rWorcester 1. Leicester 2. Staffs 2. Wolverhampton 1. 1. 1 delegate being one of its members to the Executive that members of a branch need no longer be members of the Statement Against TOTAL 17 J Committee and such delegates shall be entitled to cast one Society or an affiliated organisation. vote on any matter.' NORTHERN ENGLAND: 1. 1. County 1 The purpose ofthis rule change is to try to increase the Barnsley Cheshire Durham 5. Huddersfreld 2. scope of the Society's activities, and its membership, 1, Hull 2. Leeds 3. Liverpool QUESTTON 5 Manchester 14. Middlesborough 1. Newcastle 6. Notts 7. QUESTTON 4 outside London. I support that aim but I do not believe Oldham 2. Preston 1. 1. Stockport 1. that this rule change will achieve it. Rugby Sheffreld 18. DO YOU 1VANT RULE 6 (ii) TO BE York 1. DO YOU WANT THE RULE TO BE 2 In my view, the way to increase activity and membership TOTAL6T DELETED? outside London is to: AMENDED IN THE FORM SET OUT a) Encourage the formation of regional groups. (Two SOUTHERN ENGLAND: Berkshire 3. Dorset 1. Essex 17. ABOVE? YES / NO groups were formed last year and this year we have Herts 10. Kent 9. Hampshire 3. Middlesex 7. Surrey L4. appointed a Regional Branches Co-ordinator to make Sussex 5. London 450. Outskirts of London (e.g. Richmond, YES / NO Statcmentin Support this task a priority.) Wembley, Croydon) 98. b) Organise conferences and meetings outside London. TOTAL617 Statement in Support Many persons who become interested in the work done by a (In the last six months we have held meetings in local group WESTERN ENGLAND: Bath 1. Bristol T. Cheltenham 1. may well wish to become a member of the group Manchester, Blackpool, Leicester and Brighton and we The Society is presently trying to increase its membership joining Devon 2. Cornwall 1. Oxford 3. but may see little relevance in a national are planning events in Birmingham and Sheffreld.) in order to become a more effective TOTAL 15 campaigning force. It is organisation which is still very much London centred. Such c) Improve our work on a national level by, for example, clear that many would-be members live outside London and people should not be prevented from being branch members more effective parliamentary lobbying and use of the Beverley Lang, Secretary that a major obstacle to recruitment is the image of the and participating in branch affairs and providing much media. Society as London based. The formation of regional needed revenue to the branch, merely because they are not d) Provide the membership with a range of publications branches is therefore a powerful recruiting tool in that national members. Instead the Executive Committee which benefit all members, no matter where they live, socialists working within the law but with little or no should be doing more to ensure that the Society is seen as (During the past year we have published Socialist contact with London may see a benefit in joining a local relevant to persons outside London by organising meetings

14 15 etc out of London. A branch is also in a much stronger QUESTTON 6. lowered by the Secretary ofState). Governors are given the position than the national organisation to know whether an right to 'hire and fire'in respect oftheir budget, though the applicant for membelship is a suitable person. DO YOU WANT THE RULE TO BE LEA or voluntary school governors remain the nominal employers. Christine Dawson, Manchester Branch AMENDED IN THE FORM SET OUT ABOVE? These provisions are likely to give rise to the biggest Statement Against changes on a national scale in the educational system, with governing bodies having enormously increased responsibili- I oppose this proposal for the following reasons: YES / NO ties which one may envisage will be widely delegated to head teachers. Thus the real effect is one of transfer of 1 During the past year we have been having extensive [Explanatory note: this rule change will only be required if power from the LEA to the individual head. Heads will discussions in the Society about ways of expanding our RuIe 6 (iil is deleted. If Rule 6 (ii) is not deleted all members become more akin to the managers of medium-sized membership and our activities in order to develop into a of a Branch wíll have to be members of the Society or an businesses than the traditional professional leaders of national organisation with an office and at least one øffiliated organisation and therefore this amendment will schools. wolker. These developments can only take place with a be otiose. Whether or not you support the deletion of Rule 6 substantial increase of membership and of subscription (ä), please uote on this proposal ON THE ASSUMPTION Schools (or income. We consider that the main potential for an THAT RULE 6 (iÐ HAS BEEN DELETED.] Grant-Maintained School Opt- increase in members is in the major cities and university Out) centres outside London. In order to achieve these aims Statement in Support we should be encouraging people to become national The Bill's provision for schools to opt out of LEA control are members, not finding ways to enable them to opt out of Although a person may then join a branch without perhaps its best known aspect in the public mind after the membership. becoming a national member all branch offrcers and national curriculum; their likely impact is in doubt. committee members should be national members and thus Secretary of State Kenneth Baker foresees only a small 2 Most of our income last year was spent on sending out subject to the sanctions available under Rule 14. This would number of governing bodies seeking to opt out in the early membership mailings, producing Socialist Lawyer and ensure that the branch was conducted in accordance with years; the Prime Minister sees it as the start of a far wider the Workers Charter, and preparing and ciruculating the General Rules of the Society, as its oflicers would be so process akin to the council house sales programme. The submissions on proposed legislation such as the Criminal bound. absence to date of financial incentives to opt out may make Justice Bill, the Civil Justice Review, the Green Paper on Christine Dawson, Manchester Branch one doubtful whether the proposals will have a major effect, trade union law and the Scrutiny Report, In my view, at least initially. more boroughs opt out, and to transfer educational these activities were equally worthy of support by Opting out can be triggered in two ways. First, a functions to the remaining boroughs. A new 'ILEA socialist lawyers in London and out of London. It is true governing body may resolve to hold a secret postal ballot of Residuary Body' would be created. that an out of London member who does not have an parents. Second, such a ballot may be requisitioned by a These proposals are particularly serious; ifboroughs opt In respect (iv): proposal active local branch does not have the benefit of local of Rule 6 The is that the rule number ofparents equal to at least 20Vo of a school's pupils. out the ILEA will be left with the responsibility of should be amended as follows: meetings. However, the subscription rates have been Thereafter, all parents of pupils at the school must be managing and administering an education service almost branch may provide especially geared to cater for this, Londòn workers or 'A for its own members its own rules, balloted; the decision to opt out requires a simple majority certainly comprising the poorest boroughs, and for a including residents pay a subscription of f20 per annum. Out of the right to charge such additional subscriptions ofthose voting. A proposal is then made to the Secretary of geographical area which has no logic in planning terms, but London members pay a reduced rate of f 12. However, as the Branch Committee shall determine. The rules State for the school to be given 'grant-maintained status'. which is the residual and unplanned result ofdecisions by if relating there is a local branch, it can levy a further subscription to Name Object and Membership shall be subject He has a broad power to reject, approve or modify the individual boroughs and the Secretary of State. Moreover, to branch members of up to f,8 to fund local activities, to the approval of the Executive Committee.' proposal. Whilst the Secretary of State will fund opted-out by permitting opting out to take place at the start of any incluäing a public meetings programme. This pattern is schools in the first instance, he may recoup his expenditure frnancial year the Authority faces a chronic period of working very successfully in the Manchester Branch. QUESTTON 7 from the LEA. Thus in effect the ratepayer or poll-tax management instability during which its ability to attract payer will be the compulsory financier of schools over whom and keep staff will be in doubt. One can look in vain for any 3 I appreciate that there may be individuals, or groups of DO YOU WANT THE RULE TO BE no policy control can be exercised; a fine modern example of historical precedent for this form of local government individuals, who wish to associate themselves with the AMENDED taxation without representation. planning blight; the government's pretensions of concern to Haldane Society but do not, for whatever reason, wish to IN THE FORM SET OUT ABOVE? promote high quality education are devoid of any be members. The appropriate status for such groups is Higher and Further Education credibility. the affiliated organisation, not the Branch. A good example of this is the newly launched Nottingham YES i NO LEAs will cease to be responsible for the provision of the Conclusions Society of Socialist Lawyers which chose to to afÏìliate majority of non-university higher education; the control the Haldane Society, rather than become a Branch. Statement in Support over and funding of polytechnics (which will become Overall, the government's educational 'reforms' show a corporations) will pass to a new Polytechnics and College curious combination of laissez-faire, anti-planning and 4 Branches are entitled to send a delegate to EC meetings This amendment would give a branch the right to make its Funding Council appointed by the Secretary of State. A rampant centralism. On the one hand, LEAs have to and the EC has endorsed the proposal that the branch own rules without interference by the Executive Commit- will new statutory duty is to be placed on LEAs to secure the fund schools which have opted out, over which they have no representative should be entitled to a vote. It would be tee. The Society should recognise the ability and integrity provision for their area of'adequate facilities for further say, and which may preclude sensible planning wrong in principle to give a vote on the EC to a group of socialists who may wish to form a branch the of to maintain education', i.e. full and part-time education and training for educational provision. whose rank and file members may not be members of the their own ways of working and organisation On the other hand, the Secretary of without persons over compulsory school age, and organized leisure State is seeking to give himself an enormous number Society. obtaining Executive Committee approval. The fact that of time occupation provided in connection with such edrication new powers to decide matters of frne detail as well as broad Beverley Lang, Secretary Executive Committee approval is required before a branch and training. A power (not a duty) is given to provide local policy, and to control the content and teaching (and is recognised and provided Executive approval is to be higher education, having regard to non-LEA funded therefore the implicit or explicit ideology) of the curriculum. obtained for any change relating Name Object or to provision. Schemes for local financial delegation are also to The government has claimed to be promoting parental Statement Against Membership of the branch means that the branch must still be established for further and higher education institutions choice. In fact, parental choice will be only marginally carry on its affairs within the stated aims of the Society. It funded by LEAs. increased, and in some key areas it is completely ignored. I would invite members to vote against this alteration. It is the day to day running of a branch that it is intended to Boroughs wishing to opt out of the ILEA need not consult would permit persons who are not full members of the keep within the control of its own members. Education in Inner London parents at all; nor can parents of a school which has Society to act in the name of the Society by virtue of Christine Dawson, Manchester Branch opted 'membership' of a Branch, to appoint (inter alia) an out vote to return to their LEA. Whilst greater powers are executive member of the Society, and not to be bound either Probably the most politically partisan provisions of the Bill given to governing bodies, it is very doubtful whether there by the Rules of the Society or to pay the subscriptions which relate to the future of the Inner London Education are tens of thousands of governors wishing or willing to all members are bound to pay, Authority, which is presently the LEA for the twelve Inner become, in effect, business managers of their schools, Jack Gaster, Vice-President London boroughs and the City of London. Each Inner personally liable in the event of mismanagement. Financial London borough is to be given the right, exercisable by a delegation to governors is likely, in reality, to mean more simple majority vote of the council, to apply to the managerial responsibility for heads. The sum total of the Secretary of State to opt out of the ILEA and establish its government's proposals will not be a coherent public own LEA. The proposal must specify 1st April 1990, or lst education service; on the contrary, if implemented, they In respect of Rule 6 (iii): The proposal is that the rule April in any subsequent year, as the transfer date. No will lead to an unstable, unplannable service ripe for should be amended to read as follows: public consultation or secret ballot is required, and only one further 'reforms' which if the present government is public objections is provided. power - 'The members in a branch may appoint their own officers month for to be The Bill returned to - will almost certainly lead to a greater and committee, such offrcers and committee being members contains a further provision, not contained in the public emphasis on market forces and the further dismembering of the Society, and conduct its business in accordance with consultation document which preceded the Bill, giving the of the public, democratically accountable, education the objects of the Society.' Secretary of State power to abolish the ILEA if eight or service.

16 17 T_ -tr

David Geer lesbian identity to a question of sexual practice, it becomes ancillary. Frequently they are treated as raising questions easier for the 'moralists' to assert that the state has a right of the left's commitment to civil liberties ot more vaguely and even a duty to control such activity. If gayness 'fairness'. Treated as such the lesbian- and gay -can be equated with- the pursuit of a particular kind of -community is regarded as just another issue on a list of sexual pleasure rather than with a whole cultural and priorities. How important a priority it is seems to depend political perspective, once the pleasure ofa few is perceived in the eyes of the leadership of the Labour movement on- Gay Rights Matter as a threat to the health of the majority of the population such contingencies as public opinion and political- the state may more easily intervene to police such activity. expediency. Again, by attempting to undermine the notion of a gay and In the 1980s lesbians and gays on the left have begun to lesbian community - by defrning lesbians and gays in recognise the need of the gay community to exert an wholly atomistic terms - the right is able to attack the influence at a national political level as well as at grassroots \ ,, 2 values and perspectives of that community without level. As a result we have seen socialists in the lesbian and appearing to threaten a broad social commitment to civil gay movement developing wider poltical aims. Campaigns liberties. such as 'Lesbians and Gays Support the Miners' and Such a strategy is not in itself new. Looking back thirty 'Lesbians and Gays Support the Printworkers' and'Positive ^ years to the publication of the Wolfenden Report and the Images' are striking examples of the success of the new Ø campaigning that followed from Wolfenden - culminating lesbian and gay perspective. Each of these campaigns has ' The men who in the passing ofthe Sexual Offences Act of 1967 we see involved the decisive rejection of single issue politics in â exactly the same language being used. In part, -however, favour ofa political agenda, based on the recognition ofthe by todaf s discussion set in these termg was more understandable mutual dependency ofall oppressed groups, and designed to since for many of the apologists of reform at the time, meet the demands of these groups. Central to this political þrgon ere homosexual freedom was something to be won by appealing perspective is the belief in the absolute relevance of lesbian to notions of tolerance and common humanity by asking and gay views to any socialist debate. To the activists ofthe descrbed as society to look beyond a sexual 'disabilty'to the- essential '80s gayness is equal in importance to socialism as a term of gty normality of homosexuals in other areas of their lives. political self-description. afe nol What is inexcusable about this kind of reductionist Of course, the lesbian and gay movement will continue to' gay, they afe rhetoric today is that it seeks to turn debate back to fight over single issues perhaps the greatest success for Wolfenden days and to rewrite history without reference to the movement in 1987 -has been the campaigning around homoseruels the enormous political and cultural impact of the lesbian the need for legislative reform. But in the light of mounting and gay movement over the past twenty years. opposition from government, the church and the media the and I o¡ chances ofsuccess on single issues seem very small. bugger!... ' The Left: Tokenistic Commitment? The Haldane: A Challenge

The success of such attacks has been largely due to the In June 1987 the AGM of the Haldane Society voted to set f Lorl CHd Jrdíc¡ [rrr. gay üh l{¡vcrnlcr isolation of the and lesbian communit¡r. TÌre question up a lesbian and gay working party. The working party will ltlt I that remains to be asked is why support from the left has be able to undertake the important work of monitoring the been so half-hearted. In part, such half-heartedness may be way in which the legal system is used to discriminate explained by the fact that the polltical institutions on the against lesbians and gays. It could also have an important left - like all institutions - reflect the heterosexual bias liaising role with other lesbian and gay socialist present in society at large. But part of the blame must also organisations. These are just personal suggestions. be laid at the door of the lesbian and gay movement itself. What is vital is that this opportunity to bring lesbian and Deeply influenced by the feminist movement, lesbians gay political perspectives into the Society should not be and gay men on the left in the late '60s and earþ'70s, squandered. The working party should not become just became engaged in a long ptocess of political self- another way of 'boxing off lesbian and gay issues. The examination. For many this entailed rejecting national setting up of the working party is an important step in the political power structures and jettisoning the belief that Haldane Society in bringing into prominence lesbian and Socialism and equality could be won by campaigning gay political aims and demands. It is, however, a very small through existing political institutions. Following the step in a far more protracted process by which the left must pattern set by the feminist movement, lesbians and gays recognise the challenges posed by the lesbian and gay 'The men who by todøy's jørgon are described øs gøy withdrew from competing to influence national party community. øre not gay,they øre homosexuals and I orbuggers .,,' politics, to concentrate instead on grassroots consciousness- For the lesbian and gay community the twentieth Lord Chief Justice Lane. EthNovember l9Eil. raising. For a movement in its infancy the value of anniversary ofthe passing ofthe Sexual Offences Act 1967 It is very easy to dismiss such comments as examples of consciousness-raising cannot be over-emphasised. By has been a sombre occasion. Rather than a celebration of blind prejudice and bigotry. Yet, in recent years attacks concentrating on personal experiences of oppression and, the advances made over the past twenty years we have such as these have begun to acquire a coherence and have through the exploration of personal power relations, seen those advances checked and the challenge of'new come, moÌe and more, to look like a strategic assault on the lesbians and gay men have been able to develop new forms moralism' gather pace. Now even the limited protection lesbian and gay community. The Lord Chief Justice's of intimacy, community and group identity. afforded by the '67 Act is being challenged. No-one should remark provides just one brilliant example. Such comments However, many of the diffrculties encountered by doubt the strength of the threat to the gay community. No- attempt to reduce all discussion of gayness to a simple feminists have also been experienced by lesbians and gays. Ll(f one should underestimate the long term aims of the so matter of sexual activity what we do in bed. By doing so Of these the most overwhelming difliculty has been that of | \ t. called'New Moralists'. any question ofthe cultural- and political challenge posed by moving from the specifrcity of personal experience to a Over the past twenty years the atittude of the left lesbians and gay men is ignored. Hence, rather than position where it is possible to theorise. Hence, through an towards lesbians and gay men has been highly ambiguous. portraying us as a community distinguished from other excessive concentration on oppression, poltiical aims have STOFI The left has never declared its unequivocal support for the communities by our particular- demands and particular been too narrowly defined. lesbian and gay community. It is time it did so. This would perspectives such comments attempt to present us as As a result it has been possible for the political require a radical reappraisal ofprevailing attitudes on the isolated individuals,- distinct from other people solely on institutions on the left to take a myopic view of the political left towards the lesbian and gay community. It would entail account of 'abnormal' praótices. So, in the Lord Chief relevance of lesbian and gay demands. Like many of the Co DrßfC recognising that the questions raised by the gay Justice's words, we are not gay men forming part of a gay perceptions of the feminist movement and the black and Tof cor4munity reach beyond simple civil libertarian issues. It and lesbian community (and typically no mention is made ethnic communities, the political perspective of the lesbian would mean accepting that lesbians and gay men on the left of lesbians) but 'homosexuals' and / or 'buggers'. The clear and gay community can be 'catalystic' operating to o have a political perspective a perspective relevant to any implication of such remarks is that the lesbian and gay challenge the terms on which power is exercised- on the left / thnv u1 sTolle-â debate on the future of socialism.- In short, so long as the community is to be treated as both culturally and politically and the nalTowness of the interests represented by those ou r left continues to treat the challenges made by lesbians and invisible. By doing so the very right oflesbians and gays to exercising such power, Rarely has real consideration at least on national level been given - " suTporl G^'l F\GHT" gays to the dominant heterosexual community as øncillary assert a community identity is attgcked. a - to such challenges. s+tcjr¡-t to the main questions posed by socialism, the gay The strategy of the 'New Moralists'in treating gayness in Instead the left has been able to practice its own form of community will remain vulnerable. this manner is clear; by reducing the issues of gay and reductionism. Rather than being regarded as part of a central discourse, 'lesbian and gay issues' are viewed as

18 19 I -

insulting' (inflammatory) words or material was too strict. enmity and is greater than racial disharmony or ridicule, ity. As the European Convention for the Protection of J. Dexter Dias The White Paper of 1985a further identifred: vi) spurious which are nonetheless likely to be harmful and to lead to Human Rights states, freedom of expression is limited by defences where inflammatory material was distributed to hatred. the 'protection of the rights and freedoms of others.' anti-racist groups, clergymen and MPs who were unlikely 5 Possession with a view to publishing. This is a new Finally, on a more conceptual level, socialists must argue to be stirred to racial hatred; vii) the diffrculty ofproving a offence. Although this avoids the diffrculty of prouing a that individual freedom is a means of equality; equality 'distribution' by someone possessing inflammatory mate- distribution, it is still needed to show that a distribution being a precondition of true collective freedom and not an A Licence to Hate rial. was intended. $gain, the mischevious excuses can be end in itself. Where individual freedom substantially anticipated; the possession was for'educational reasons' threatens equality, it must be curbed. The 'freedom to be or ttras a 'collection of racist artefacts'. racist' is not so much a freedom as the enslavement of Incitement to racists to a socially destructive ideology, and the The following criticisms were not addressed: subjugation of victims to fear and discrimination. Socialists 1 The AG's consent. One of the biggest obstacles to the rights of those who wish to demonstrate and the interests must argue that intellectual racism not only causes Racial Hatred and of effective use ofthese provisions has been the need for the the wider community . . . the government violence to ethnic groups, but that it is itself a form of believes that the AG's consent. was introduced because of the reasonable exercise of freedom of expression fhis violence against the ethnic community. should be 'political sensitivity' of the offence, and the need for the Public Order protected, however unpleasant the views expressed, and consistency in prosecution policy. The latter has largely has concluded that section 5A should continue A Plan of Action to be based been achieved. The AG has consistently not prosecuted. on considerations of public order.' Act 1986 The AG in 1965 gave an undertaking only to prosecute The Bill was introduced in December The new legislation is clearly inadequate. The amendments 1g85. It contained breaches' law. Further, published The issue of race is fraught with confusion and 'serious of the the deal with form not substance; here is cosy continuity not p prosecutionu an evaluation contradictions. The complexity of the arguments is often criteria for involves of the change. The major obstacles to effective law remain; here is prospects assumption avoided by making the issue peripheral; unfortunately, of conviction and the stated that a code without coherence. socialists and socialist lawyers are not immune from this acquittal is harmful to racial harmony. The zeal and frequency prosecutions attitude. The enactment of Part III of the Public Order Act with which are brought will Socialist lawyers must campaign for and demand: present 1986, concerning incitement to racial hatred, is a case in significantly affect their outcome; at the offence a) in relation to the present law: point. Little attention has been paid to racial hatred by the is considered somewhat anomalous and is regarded with 1 clarifrcation by the AG of his prosecution policy; is really the case government, commentators, textbook writers, and, dare it suspicion. Moreover it that the AG errs 2 a commitment from the AG to prosecute these be said, socìalist lawyers. Part III effectively codifres the on the side of caution in other areas ofpublic order law, offences more frequently and more virorously; damaging general public law relating to incitement to racial hatred. But the ment, considering acquittals to be to 3 greater education forjudges on issues ofrace; order? amendments and additions are conspicuous by their 4 more realistic sentences for convicted racists. 2 Private dwellings and private conversations. Although inadequacies. Not surprisingly, the reverence shown by the ( b) in relation to the future: government for the right to racist expression is in glaring the offences may be committed in either public or 1 repeal of private, private the requirement of the AG's consent; contrast to the cavalier fashion in which civil liberties are The freedom to be racist is not so much a there is an exception for dwellings. 2 repeal of the public order nexus; racist in a private for treated in the rest ofthe Act. freedom as the enslavement of racists to a Where and audience are dwelling, 3 the offence to be called 'incitement to stir racial Given the mounting evidence of increasing racial attacks, example canvassing on a doorstep, the law is disharmony or to state racist views'; socially destructive ideology.¡ inapplicable. addition, abuse neighbour, harrassment and abuse,t and the recent shuflling of In racist of a 4 'threatening, abusive and insulting' behaviour to be government law officers, this article has three purposes: i) distressing as it is, could also be exempt. judged by the standard of a non-racist person. to clarify the issues created by Part III of the Act; ii) to 3 Racist groups in Great Britain. There must be hatred against a racial group in Great Britain. Thus where argue for the more effective enforcement of the existing Changes and Limitations law; and iii) to argue that further statutory change is still there are no, or no sufficient members of a particular required. victimised group in Britain, no offence will be committed. The 1986 Act created six offences concerning the use of (Is there, for example, a'group'of Fijians in Britain?) The inflammatory language or material likely to or intended to effect of this requirement is that some racism wilt be The Historical Context stir racial hatred: the use of words or behaviour, or the tolerated; racism is acceptable if it is not 'aimed at' a display of material; publication or distribution of material; group in Britain. But if racism is a state of mind, a The history of the law of incitement to racial hatred is an the public performance of plays; distribution or playing of perception of superiority, a justifìcation of violence, the unhappy one. With the disuse of the common law crime of recordings; broadcasting; and possession ofmaterial with a concept must be confronted in toto, or not at all. sedition, section the Race Relations Act 1965 was 6 of view to publishing. The Act addressed in form but not in 4 Sentcncing. perceptions of the offences are enacted. Scarman described Judicial Lord it as being 'an substance some of the aforementioned criticisms. The main disturbing. Defendants have been considered irresponsi- embarrassment to the police' and'useless to a policeman on changes were the following: ble or immature rather than socially dangerous. One the street'. was repealed by section 70 of the Race It 1 Creation of a power of arrest. However, this power is judge congratulated a defendant who said of a murdered Relations Act 1976 which'inserted section 5A into the limited to section 18, the provision relating to Asian 'one down, a million to go', on his courage in Public Order Act 1936. [t became an offence: 'to punish or inflammatory words or behaviour, or the display of such publicly stating his views.u Accordingly, the maximum distribute written matter or to use in any public place or material. With the other offences, the police will still two year sentence indictment has rarely been any public meeting words which were threatening, abusive on have to issue a summons. To paraphrase Lord Scarman, invoked. Most sentences of imprisonment are suspended or insulting where hatred was likely to be stirred up the embarrassment continues. and fines rarely exceed f200. References against any racial group in Great Britain'. The Attorney Broadcasting. The 2 offences extend to the broadcasting L See: Home Office Study General's consent was required for a prosecution. racially (frlms, Attacks' l98l; Home of inflammatory material videos and A Conceptual Change Afføirs Comrnittee Report-'Racial on Røciøl Harrassment' From 1976 to 1982 there were 13 prosecutions under the sound recordings). section resulting in 6 convictions. In answer to a rprivate 1985/6; CRE Report'Røcia.l Harrassment on Housing 3 Removal of the association' exception. The an Parliamentary the AG stated that from 1979-86 For the offences to be committed, there must be Estøtes'198I. Question, government could see 'no justifrcation' for retaining this or public (1982) there were a mere 59 prosecutions. There was widespread intention likelihood of stirring racial hatred. This 2 Incitement to Racial Høtred Runruymede Trust P. exemption, believing that preaching to the converted order consequence must be present. As long ago as 1976 the Gordon. criticism of the AG's reluctance to start proceedings. The could lead action. But, paradoxically, them to further government recognised the increasing sophistication of 3 Reuiew of the Public Order Act 1936 and Related Runnymede Trust's Report,' describing the prosecutions as distribution to individuals is still allowed, as individuals 'few and unsatisfactory', agreed with the perceptions of racist propaganda: 'It tends to be less blatantly bigoted, and Legislation Cmnd 7891, (1980). are not 'a section of the public', thus by handing out and both academic commentators and practitioners. Either here purports to make a contribution to public education 4 Reuiew of the Public Order Act 1936 and Reløted leaflets in a series of individual transactions, the law may debate . . . the more apparantly rational and moderate is Legislation, 1986. was a society largely free from racism or else the AG's be side-stepped. the message, the greater is the probable impact on public 5 The Critería Prosecution, note by DPP, Cmnd 8092-1, commitment was less than enthusiastic. Readers are left to The offences for 4 Intention to stir racial hatred. are now opinion.' Yet the Paper continues: 'But it is not justifiable in (1981). decide for themselves. committed there is an intention (as an alternative a if to a democratic society to interfere with freedom ofèxpression 6 R u John Kingsley Reød, 1978, unreported. by likelihood) to stir racial hatred inflammatory use. This except where it is necessary to do so for the prevention of Government Perception of Criticism is a cosmetic change as the real issues are evaded. disorder or for the protection ofother basic freedoms'. There Firstly, the requirement of 'threatening abusive or are three arguments here. The government was aware of some of the criticisms. The insulting'behaviour or material is not questioned. These Firstly, if the government is so concerned with Green Paper of 1980' identified the following criticisms: i) are 'ordinary words' and what is acceptable to the consequences, then by its own admission, 'intellectual' This ørticle is written on behalf of the Race and Immigration no police power arrest; ii) that that there was of summary 'ordinary man' in a fundamentally and institutionally racism will be the most divisive form in the long term. Subcorntnittee of the Haldane Society.It is merely the opening of the the provision did not extend to broadcasting; iii) that there debate. The subcommittee plans to conduct wide ranging and racist society is likely to be deeply insulting and abusive Accordingly, it should be criminalised. Secondly, it can be a of critical enquiry into race issues a socialist perspectiue. was an exemption for material distributed to members a to ethnic groups. For example, ajudge has considered the argued that allowing the propagation of such material from private association; iv) that the AG's consent was required; Dialogue, feedbøck and contributions are inuited clo Derter Dias, words 'wogs, niggers and coons'not be be inflammatory, infringes upon the freedom of ethnic groups to be - v) that the requirement of 'threatening, abusive and Secondly, 'racial hatred' is still required. This means Race and Immigration Subcommittee, 49a Oakmead Road. London considered equal, unthreatened members of the commun- sw12.

20 21 states: legal. The party must have at least 0.5 of the electorate 'Euery øct of a person or o. group which is øimed at (around 35,000 people) as members. The names of all members must be published a dangerous provision in a country where physical harassment- ofall opposition people is common. Members of the security forces and trade uniin leaders may not belong to a political party; the Constitution prohibits any party political activity by trade unions. And, of course, the whole Political Parties Law is subject to article 8 of the Constitution; it provides that, even while a form nal Tribunal may at r the process of forming a responsible for tøking cognizønce of breaches of the is re suspect that it may foregoíng provisions.' s whi The article continues by laying down that, without prejudice to any other punishment, those who have The Restraints upon Parliament carry out any public journalism, teaching, Even after Parliament has been elected, it is to be subjected also lose the right to to severe restraints. A curious provision states: This provision alone precludes the Constitution from being considered democratic. The opinions which it outlaws

penølty will øpply to any Parliømentørian who interuenes in student actiuities in order to øffect their nonnøl developrnent.' The Transitional Period The armed forces and the police are entrusted with the mission of 'guaranteeing the institutional order of the The transitional paragraphs appended to the Constitution Republic'. Their commanders, together with the President under which the supposed and the Presidents ofthe Senate and the Supreme Court, take place. They provide that: form the National Security Council, which can make e Military Junta will remain in power until March 1989. 2 During this period the Military Junta will have power to exercise all legislative poriler, including the power to pass laws interpreting the Constitution. period of 90 days and then be renewed. Thus the Military 3 The President can powers in the Junta would continue under another name, and would case ofeither acts turbing public wield a power which could override the wishes of order or'ifthere is ofthe internal Parliament. peace'. In that event the President can detain people for The powers of Parliament to amend this Constitution are up to five days, or twenty days in cases of serious cumbersome to the point of impossibility. The key terrorist acts; limit the right of assembly; restrict new provisions may only be amended if all of the followinþ publications; expel or prohibit the entry of people who things happen: propagate doctrines 6þ A referred to in article 8; or decree 1 There is a two-thirds vote of both Chambers of internal exile for up to three months, These powers are in Parliament. addition to the Constitutional power to declare a State of 2 The President agrees. Siege or a State of Emergency. They, as well as the 3 The matter is postponed until a fresh Parliament is emergency ked throughout the elected (i.e. in 1997). transitiona sinister of all, the 4 There is a two-thirds majority vote of both Houses of the measures by virtue of this new Parliament. provision are 'not susceptible ofany legal recourse except It should finally be noted that the 1980 Constitution Tony Gifford re-consideration by the authority which effected themi 4 Before March 1989 the Military Junta will propose to the country the name of the person who will, subject to ratification by the citizens, be President for the next eight years, and a plebiscite will be held to confirm their choice. Iftheir choice is not approved, the President and trator, the Provincial Governors, the representatives ofthe Chile's Constitutional Fraud Junta will stay in power a further year and there will armed forces and the police, and representatives of the then be a Presidential and Parliamentary election. If the main public and private enterprises in the Region, with the choice is approved, the President will proclaim Par- private sector being in the majority. Provincial Governors liamentary elections for, at the latest, February 1g90. the Mayors in It will be seen that the whole transitional process is to the Regional take place under the continued rule ofthe dictatorship. The plebiscite will be a yes/no vote for the chosen candidate, To visit Chile today is both an inspiring and an appalling The greatest danger is that the Pinochet regime will seek üi*li who could well be Pinochet. I endorse the comment made by "l:; experience. Inspiring because so many Chileans continue to to legitimise itself by carrying through the spurious 'return the International Commission of Jurists on the occasion of One can find in these totalit echoes resist the Pinochet regime, demonstrating, leafleting, to democracy'envisaged by the 1980 Constitution. This was the plebiscite in 1980 which approved the Constitution: 'No ofthe tendencies ofThatcher's oflocal organising in the townships. Lawyers who act for political adopted by a 'plebiscite'in 1980, a voting exercise carried dictator has ever lost a referendum'. The plebiscite would democracy; the attempt to union prisoners literally put their lives on the line; for to defend out with no electoral register and organised by the junta. take place, as did the 1980 plebiscite, in a the; Ieft can lead to assassination by one of the so-called The contents of the Constitution require careful state offear, with examina- ample opportunity for intimidation clañdestine squads (so-called because everyone knows that tion by lawyers. and fraud, There can be they are security police in another guise.) no free choice for the Chilean people under such Appalling because there seems no early end in sight to Unlawful Acts arrangements. the oppression of the Chilean people. The incidence of torture Political Parties and unexplained killing has increased over the last After proclaiming in article 1 thaL'all men are born free two years. Poverty and unemployment in the 'poblaciones' and equal in digrrity and rights', the Constitution proceeds (Tony Gifford, a Vice-President of the Hald.ane is worse grim evidence ofthe worst effects ofthe Chicago The Political Parties Law recently published imposes tight Society, recently in article 8 to define a whole section of the population who uisited Chile on behalf of the UK Parliamentary Human Righis school of- monetarist economic policies. constraints on registered parties, which alone would be by reason of their opinions are to be outlawed. Article 8 Group.) 22 23 REVIEWS

SPYCATCHER IMMIGRATION LAW AND PRACTICE Peter Wright lan A. Macdonald Viking Penguin, NY, Ê19.00 (by credit Butterworths, 1987. card over the telephone) The law of immigration is a fast developing area of the law \{hen I picked up this book I tried to clear my mind of and, with a new Act on the way, it is essential for everyone everything I had read about it: endless column inches about to be acquaintejd with it. It is no longer acceptable for people the Public's Right to Know, the Integrity of the Secret on the left to mark down immigration problems as a Service, what Dale Campbell Savours had said in the minority issue; they are a test of how far we are a civilised SEX AND RACE DISCRIMINATION IN with continuing to rely upon prophetic guesswork when House, Malcolm Turnbull, horse breeding, funny Austra- society. Judging by the present immigration laws, the compiling statistics. lian hats, Sir Roger Hollis, Sir John Donaldson, Kerry ans\ryer must be, for Britain, not very civilised at all. People EMPLOYMENT My final grumble is that in my experience, and I have no of non-British origin are treated in the most appalling way Packer, etc. . . . The only thing that everyone agreed on was Camilla Palmer and Kate Poulton, reason to believe that it is atypical, where respondents fail that there was an Important Matter of Principle involved. when they arrive at the ports and airports of this country, to supply any or adequate answers to the EOC/CRE But what about the book? and if they are lucky enough to be allowed into the country L.A.G. Law and Practice Guide No. 1S. questionnaire or depart in evidence from the answeïs I'm not going to risk the Bar Council or contempt they are often treated as second class citizens thereafter. Ê14.00 given, the tribunal permits them to do so and declines to proceedings by relating its contents. I'll leave that to braver This is. the second edition of a book which has been draw any adverse inference. The significance of the proclaimed its first edition be the Royce' of people with more money. Actually the style is quite boring in to 'Rolls This is a good book. Your reviewer may questionnaire is thus easily overestimated and I suggest immigration law books. Clearly set out, comprehensive and with entire and sometimes diffrcult for a non-scientist to follow. propriety adopt a chunk of Anthony Lester foreword: that it is overestimated in this book. not afraid of exposing the law for what it is racist and QC's You can see at once why the government are so hopping - Notwithstanding these criticisms I very much like the mad about the book being published. It's quite true that if sexist - it lives up to that label. When Nick Blake reviewed book. I warmed particularly to the passage where the secret service offrcers made a habit of publishing súøúe the flrrst edition of this book for the Haldane Society he said current problem of the role of collective bargaining and secrets (as opposed to their memoirs) then there would be no this: 'A mark of a good immigration book is that it leaves collective agreements as genuine material factor defences point in having a security service leaving aside the the reader smouldering with anger.'I wholeheartedly agree in equal pay cases was realistically addressed. I must also question of whether it would be a good- or bad thing not to and came to the conclusion that Macdonald's latest edition say that the thorough and extensive research which has has lost none of its fire-power. I am smouldering! gone have one. The Soviets would not feel the need to turn anodyne. obviously into the book drew my attention to One of the particularly welcome aspects of the book is the previously British agents in Moscow or London if they could find out all concisely unknown authorities. historical analysis of the development of the law, drawing Thanks, they wanted to know by walking into Foyles. But Peter ll-argued Palmer and Poulton. Wright is far too fanatical a right-wing patriot to tell the on examples from as far afreld as Australia and Canada, Vivienne Gay linked with the explanation of the law of today. Soviets anything they don't already know. In fact the book I have a few quibbles which I will confine to those is largely about what they do know because our people Ian Macdonald does not let the establishment offthe hook told them. - by accepting the argument that any immigration law is I wasn't particularly shocked to read about all the bound to distinguish between 'us' and 'them', instead he naughty things that secret services ofall nations get up to. points to the preferential treatment of EEC visitors and After all, we know all about the Rainbow rffarrior. The settlers in this country to show the racist undercurrent , which permeates all immigration law, .whether im- problem is that governments always think they can gain ¡l'. advantage by spying and they are incapable of agreeing plemented by the Tories or Labour. It's not a question of ì.( among themselves to lay off. Once one state does it then the numbers, it's a question of racism. others have to follow suit or they feel at a disadvantage. This book is a must for the student or practitioner in immigration law what a shame that the price.f.... will Since it's all supposed to be kept under wraps the discrimination cases is addressed but underestimated. How probably prohibit -that from being the case. Serious thought temptation to play dirty is irresistible. In public every state can an advocate know what statistics to compile if s/he does wants to claim that it is clean and that it's someone else ought to be given to a softback cheaper version. not know until the industrial tribunal gives Keir Starmer its reasons doing the nasty things. Hence the need to cover up. This has (often some weeks after the case was argued) what pool will nothing to do with national security and everything to do commend itself to the tribunal . In Kid.d the industrial with loss of political credibility at home and abroad. I tribunal of its own initiative decided upon and set out fully I suppose it could be argued that if MI5 is seen to be for the first time in its reasons a pool which was not ./ incompetent then the CIA and the FBI won't give us their suggested by either counsel (and which Palmer and Poulton stuff. That may be right or wrong, and if right, may help or properly criticise). The EAT said that this problem could be hinder national security; but botched litigation and overcome by having a preliminary hearing to decide the maximum public exposure must surely have done as much appropriate pool. In the only case to my knowledge in which to encourage American reticence as the book itself. this course was proposed the industrial tribunal refused to The 'Important Matter of Principle' in reality boils down inary hearing. The Applicants, to preventing the public from realising that all govern- with applying to use the long- ments lie as Enoch Powell once remarked. resolve the pool and - issue -^:t^¡,,r,.i fim Kerr hearing to another occasion or

24 25 CRIME BOOKS REVIEWED BY have always been grateful to this book for putting into perspective what I consider to be the horrendous experience BLACK MASK of studying law. Scott Turow went on to be an assistant US attorney in Chicago. The blurb says he tried and won a Black Mask is flagging, readers, preparing to give birth to number of important cases involving corruption in the Black Maskette and retire temporarily. So I only managed Illinois legal system. I am therefore including him in my to read three books this time. I was going to read a fourth, very loose left wing category. The book is certainly, among She Came Too Late by Mary Wing, published by the other things, an attack on corruption in the legal system, Women's Press, but every time I was about to start, I found and particularly on an American legal system which is part someone in my household lying on the sofa utterly of the political process. Many American cities elect District absorbed. It was frnally, due to a misunderstanding, Attorneys (here called Prosecuting Attorneys) and Turow spirited away to foreigrr parts by a guest who couldn't bear graphically shows the inherent flaws in having prosecuting not to finish it, and frnd out who done it. I was able to glean and judicial bodies that are not politically independent. from those who read it that it is about an amateur lesbian Firstly, this book is a beautifully written and absolutely detective, and a good read. riveting novel. I will not even hint at the plot, for fear of The first book that I did manage to hold onto is Poetíc giving anything away, except to say that the hero is the JustÍce by Amanda Cross. This is another American chief assistant prosecuting attorney in a big city and the novel, first published in 1970, and I'm not sure if it is murder victim a colleague. No doubt this book is available here. But it is a wonderful example of the genre particularly enjoyable for lawyers because it is an inside being used to make a very particular political point. account by somebody who clearly knows his stuff. I started Amanda Cross is the pseudonym of Carolyn Heilbron, a to think a lot about why no left wing lawyer I know would respected Professor of English at Columbia University in ever prosecute, yet many District Attorney's offìces in New York. Her heroine, Kate Fansler, also teaches English American cities with liberal administrations are frlled with at Columbia and is engaged to a lawyer in the District left wing lawyers. The hero seems to see himself as a public Attorney's offrce. She is an endearing character, undomes- servant rather than as a businessman in a private law firm tic in an era when even feminists are required by their which exists only to make profits. There are many other inventors to make real coffee, pasta and mayonnaise. She meaty topics in this long book for the lawyer to is, however, a stickler for grammar and academic rigour. contemplate. The trial section is terrific, being both funny The story revolves around the murder of a rather and familiar to an English lawyer, and showing all the unpleasant colleague, but is mainly an attack on academic differences in the American legal system. I was especially elitism. I doubt if anyone who, i) was not around Columbia impressed by the fact that all women are referred to University during the strike and sit-ins of 1967 and '68, and formally as Ms. A particular treat is a copy indictment for ii) is not familiar with Columbia's School of General Studies our perusal. So get this book and enjoy. can appreciate this book. Luckily I am part of this tiny Two final thoughts: portion of the world's reading public and enjoyed it 1 I have yet to frnd a left wing detective novel written by immensely. Lovers of W. H. Auden will also have a good an English man; time with this book because his poetry is an inspiration to 2 Is the woman lawyer the sex symbol of the late '80s? Kate and apt quotes head every chapter. It is amusing There have been a large number of popular movies and about life in an elite American university. The English television sho ce Davenport Department is frlled with dotty characters typical 'Wasp with in Hill Street not so young, names like Peter Packer Pollinger. There are other independent, d for success. Kate Fansler novels, which may be less specific and more She was followed by the women in LA Law and a spate of appropriate for the general reader. movie heroines. I haven't seen Legal Eagles but I enjoyed hand, and Scotland, on the other, indicates clearer JUDGING INEQUALITY a I wanted very much to like and recommend Morbid Jagged Edge and the Big Easy which is a terrific movie understanding in the latter jurisdiction of the problems of Symptoms by Gillian Slovo. This is the only English about police corruption. Is this a suitable role model for our Alice Leonard, The Cobden Trust 1987 bringing cases. The idea that tribunals should specialise in novel I could find this time. It is left wing in a more general daughters? I'm not absolutely sure, but beats Charlie's discrimination work, is just it Ê9.95 beginning to come into vogue in way than the others, but there is a lot wrong with it, and it Angels. England. It has apparently been assiduously followed since wasn't readable in the compelling way detective novels Poetic Justice by Amanda Cross, Avon The Equal Pay Act 1970 was introduced at a time when the Acts came into force in Scotland. It is unfortunate that should be. Our detective is a feminist journalist living in Books 92.95. Morbid Symptoms by Gillian Slovo, Pluto Crime f2.95. women's pay was approximately 70Vo that of men's. Nearly the statistics are too small to permit a comparison of the Dalston and her lifestyle, which we all know so well, is Presumed Innocent by Scott Turow, Bloomsbury f,72.95. 13 years on the position has improved very little. Why? This results of England and Wales with Scotland, so that I nicely described. The villains are most suitably South book sets out, not to teach the law, but to'establish precisely cannot know if my feeling that Scottish tribunals have an African but there is also an extremely well mounted attack how and why cases fail in industrial tribunals and what can overall better understanding of the problems, laws and on one of those tedious left wing male collectives made up of be done about it. It is an excellent, depressing work which practices is in fact true. men who despite their political correctness are absolute constitutes a damning indictment of the way equal pay and Leonard concludes that it is not only lack of a specialist pigs when it comes to human relations. This is the best part sex discrimination cases are resolved. It is the result of a tribunal which is to blame. Lack of specialist representation of the book and I really enjoyed the heroine's feminist piece of extensive research by Alice Leonard and it will be is also a fault, both at solicitor/barrister level and where contempt for these creeps. The style is crisp and useful reading to all those involved in frghting industrial representation is by a trade union offrcial. She suggests Chandleresque with lines like, "He'd shaved his mouse tribunal equal pay or sex discrimination claims: your that any lawyer or trade union representative could become brown beard off, and now his disappearing chin had chance to improve your technique by identifying the a specialist, and that only such people should handle sex nowhere to go and nowhere to hide." The problem is the plot common errors of those before whom you appear. discrimination and equal value cases. The section which and especially the characterisation. I'm not sure ifthe plot A couple of examples suffrce to establish how the book discusses the role of trade unions as both producing and is either too simple or too complicated but it doesn't move works. Chapter 2 deals with what goes wrong during the resolving problems is a good statement of the present quickly enough. There are no clues planted to either adjudication ofclaims. In the section discussing legal errors position, especially as we now face growing difflrculties in encourage or mislead the reader. I was never tempted to a good balance is achieved between explaining the fairly the area of equal value cases when employers rely upon a flip ahead to flrnd out what happens next. There are so complex legal issues and illustrating the types of errors history of collective bargaining as establishing a genuine many characters that we lose track of them. Although which industrial tribunals make. Another section deals material factor defence. there are a number of grotesque cameos which are very with the application ofincorrect legal standards, highlight- The layout of the book leaves quite a bit to be desired. nicely drawn especially a particularly repellent grand old ing that the legal responsibility for justifying discrimina- Perhaps in an effort to reduce costs, the sub-headings are man of the left- the main characters seem flat. When we tion. in order to escape liability should rest upon the not numbered or cross referenced and neither the many finally find out -who did it, I didn't much care because the employer. Leonard's researches reveal an appalling over- useful tables nor the text are indexed, character was so thinly sketched that I had no real feeling eagerness on the part of the industrial tribunals to permit The full effect of the book will not encourage optimism in of a personality with the passion to commit such a crime. justifrcation and thus to perpetuate injustice, even where those who represent women before tribunals. Perhaps we It's a shame but this book misses the boat. may hope that now Alice Leonard is deputy legal adviser of the so-called justifrcation is itself based upon discriminatory Presumed Innocent by Scott Turow is a real novel, the Equal Opportunities Commission she be a reasons, as for example the assumption that women cannot will in which happens to be a sort ofdetective story. The author is position to implement some of the iecommendations do heavy work. which a lawyer who wrote a very readable account year she puts forward. ofhis first The section concerned with the differences between the at Harvard Law School called One L. Harvard Law makes (Blach Mash Vivienne Gay is Beth Prince and she would like any approach of tribunals in England and Wales, on the one our otryn dear College oflaw look like a nursery school and I suggestions for suitable books to review.) 26 t 27 =Y_ not¡ceboard Haldane Society of Socialist Lawyers

THE EMPI0YMEI{T LAW BUILETII{ is a highly successfut quafterly iournal published by the Employment Law Committee of the Haldane Society. lt has a wide circulation among Trade Unions, movement affrliates. Trades Councils and labour lawyers. Each copy of the ELB costs PUBLIC MEETINGS The the Haldane Society carry out the Society's most Ê1.00. lf you wish to subscribe, the annual rates (four issues) are Subcommitteee of as follows: important work. They provide an opportunity for members to develop areas 1-4 subscriptions Ê5.00 per sub. of special interest and to work on specific projects within those areas. Aìl the PROGRAMME 5-9 subscriptions Ê4.00 per sub. Subcommittees are eager to attract new members so if you are interested in 10+ subscriptions 13.00 per sub. taking a more active part in the work of the Society please contact the prices All include postage. Convenor and s/he will let you know the dates and venue of the meetings. Please send orders with payment to: Julian Webb, Flat 5, 13-15 Baring Road, Londbn SE12. Wednesday 17th February 1988 (Cheques payable to Haldane Society.) THE EMPLOYMENT BILL Speakers: Arthur Scargill, John Hendy SUBCOMMITTEES CLASSIFIEDS Wednesday z4thFebruary 1988 Pam Brighton, 111, Fortess Road, THE CRIME SUBG0MMITTEE is holding a public CRIME LondonNWS. AIDS _ THE LEGAL IMPLICATIONS meeting on the WORKINGS AND PBACTICE 0F THE Speakers: Peter Tatchell, Jane Hickman and Adrian PUBLIC ORDER ACT; an oppofiunity to exchange Fulford information, ideas and experiences relating to the Fiona L'Arbalestier, 83 Ward new Act. To be held on Saturday 13th February 1988 EMPLOYMENT Point,2 Hotspur Street, London Wednesday 16th March 1988 at the London School of Economics, 2.00pm- SE11 5.00pm. Everybody welcome. (The B.B.C. has THP EDUCATION BILL asked to film this meeting). Speakers: Brian Simon, Jeremy Smith cAY AND LE sB IAN .*.d;1, Further speakerç to be announced ållå,îXËlfJ"t; lXfff The Haldane Society is hoping to publish a joint RIGHTS All meetings at 7.15pm at the London School of document on N0 FAULT LIABILITY with the General Economics, Houghton Street, London r#C2. Municipal and Boilermakers' Union (GMB) in the near future. A special subcommittee of the 50p to non-members. Elen Owen, Southwark Law Employment Committee is working on the Haldane's HOUSING contribution to this document. lf you are interested Project, 29-35 Lordship Lane, in finding out more about no fault liability or would London SE22. like to contribute please contact Andrew Buohan, 1 Dr Johnson's Buildings, Temple, London EC4. Jeremy Smith, 177, Holland Road, MANCHESTER INTERNATIONAL LondonNW6. LAWYERS AGAII{ST APARTHEID are organising a BRANCH picket of the South African Embassy on THURSDAY 4lh FEBRUARY 1988 between 6pm and 7pm. The SERVICES Kate Marcus,96, Chichele Road, picket is being held on the 16th anniversary of the LEGAL LondonNW2. imposition of the State of Emergency in Namibia. Rhys Vaughan, 382, Dickenson The MANCHESTER BRANCH of the Haldane Society Lawyers' pickets of the South African Embassy have rvVednesday Road, Longsight, Manchester M13 meets on the 2nd of every month at 6.30pm in been held in 0ctober 1985 and January 1986. 0n 0wQ. the Manchester Town Hall, Albert Square, Manchester. those occasions over fifty lawyers turned out to Contact the convenor Alison Cantor, 97 Claude Road, voice their opposition to the South African regime. Chorltonville, Manchester M21 2DE for further details. Given the continuing and increased repression in MENTAL HEALTH Andrew Buchan, 1, Dr Johnson's Telephone 061 205 1568 (day) or 061 881 4017 (evenings). South Africa and Namibia, we hope this time to Bldgs., Temple, London EC4. succeed in mobilising even greater numbers.

Jane Ramsey, 49a Oakmead LEGAL PR00F READER seeks part or full time work. 14th January 1988 RACE AND Road, Please write c/o Heather Williams, 1, Dr Johnson's Balham SW12. GAYS AND THE LA\ry Bldgs,, Temple EC4 and we will forward. IMMIGRATION Speakers to be announced llth February 1988 THE HALDANE SOCIETY is looking for ollice RECRUITMENT Ben Emmerson, 35, Wellington topic to be decided premises in central London at a modest rental. lf you Street, London WC2. have a spare room please contact BEVERLEY LANG 1988 on 01 353 9328. ,-ANNUAL llth March \ryOMEN Barbara Cohen, 27, Churchill GENERAL MEETING Road, London NW5 1AN. venue to be decided I{OTTINGHAM SOGIETY OF SOCIATIST TAWYERS Contact Barrie Ward c/o Hawley & Rodgers, 2, Clarendon Street, Nottingham NG1 5J0. Tel: (0602) Meetings are open to all socialists involved in the law 419772. whether members or not. Cartoons (except for page 5 ) by: Joh Delahunty Designed by: Alphaset, Petra Pryke, 36e Monmouth Road, London W2. Tel:01-243 1464. Printed and typeset at: Aldgate Press, 84b Whitechapel High Street, 28 London El Y-

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