Lawyer Socialist £3 Magazine of the Haldane Society of Socialist Lawyers n Number 59 l October 2011

Inside: LOOK IN INTERVIEWS: AL-SKEINI & KADER ASMAL THE MIRROR: LEN McCLUSKEY AL-JEDDA: LAW CLINICS ENGLAND & GEOFFREY ‘HUMAN RIGHTS ZAMBRANO RIOTS 2011 BINDMAN IMPERIALISM’ and more... Haldane Society PO Box 64195, London WC1A 9FD Website: www.haldane.org The Haldane Society was founded in 1930. Contents It provides a forum for the discussion and analysis of law and the legal system, both nationally and internationally, from a socialist perspective. It holds frequent public meetings and conducts News & comment ...... 4 educational programmes. New network, Tower Hamlets defeat for EDL, Dale Farm and more The Haldane Society is independent of any political party. Membership comprises lawyers, Obituary: Kader Asmal ...... 12 academics, students and legal workers as well as Richard Harvey and Michael Seifert pay tribute trade union and labour movement affiliates. President: Michael Mansfield QC Law clinics ...... 14 Vice Presidents: Donald Nicolson asks if they help to create progressive lawyers for the future? Kader Asmal, Louise Christian, Tony Gifford QC, Tess Gill, John Hendy QC, Helena Kennedy QC, England riots 2011 ...... Imran Khan, Kate Markus, Gareth Peirce, Michael 16 Seifert, David Turner-Samuels, Frances Webber Camila Batmanghelidjh takes a look in the mirror and Professor Lord Wedderburn QC. Chair: Liz Davies ([email protected]) Interview: Len McCluskey ...... 18 Vice-Chairs: Kat Craig (katherinec@ Michael Goold meets a refreshing trade union leader christiankhan.co.uk) and Anna Morris ([email protected]) Al-Skeini and Al-Jedda ...... 22 Secretary: Chris Loxton Daniel Carey and Phil Shiner on vital European Court of Human Rights judgments ([email protected]) Socialist Lawyer Editor: Tim Potter The groundbreaking Court ...... 26 ([email protected]) Jon Robins gives a glowing report for The Family and Drug Court Treasurer: Declan Owens ([email protected]) Same as the old boss? ...... 28 Membership Secretary (job-share): Victor Figueroa looks at Colombia, one year after the election of a new president David Renton ([email protected]) with Deborah Smith ([email protected]) International Secretary: Bill Bowring ([email protected]) Executive Committee: Hannah Rought-Brooks, John Hobson, Richard Harvey, Azam Zia, Rheian Davies, Margaret Gordon, Mike Goold, Owen Greenhall, Carlos Orjuela, Ripon Ray, Kezia Tobin, Marcela Navarette, Brian Richardson, Russell Fraser, Marina Sergides, Simon Behrman, Dirghayu Patel, Sophie Khan, Majida Bashir, Yoshihiro Bartlett-Imadegawa, Joanna Gilmore, Robert Atkins, Martha Jean Baker, Angus King, Omar Khan, William Dooley, Stephen Knight, Saleh Mamon, Sarah Collins and Jacob Bindman

SocialistLawyer Number 59 – October 2011 – ISSN 09 54 3635 Editor: Tim Potter Thanks to: Russell Fraser & Liz Davies Picture: Gemma Hall / www.gemmahall.co.uk Picture: Cover picture: Jess Hurd (Report Digital) Many thanks to all our other contributors, ...... readers and members who have helped with Interview: Geoffrey Bindman 30 this issue. Owen Greenhall speaks to a pioneering knight Printed by: The Russell Press The EU after Zambrano ...... 34 Adrian Berry analyses recent judgement on EU rights of residence

Film and book reviews...... 37 Maria’s Story, Give up Tomorrow, Ashes & Sparks, and Tactical Questioning.

2 Socialist Lawyer October 2011 from the chair

Active solidarity

esistance to the cuts is a multi-faceted movement. The In solidarity with our comrades defending human rights across the next big protest is the Pensions Justice Day of Action, globe, The Haldane Society is holding a conference ‘Defending on Wednesday 30th November 2011, called by the Human Rights Defenders’ on Friday 24th February 2012 in Central TUC. As I write, public sector unions are balloting their London. We will focus on supporting activists – lawyers, trade members for action and we encourage all Haldane unionists, journalists, NGO workers, and political campaigners – who members in the public sector to vote to defend their risk their lives for their commitment to social justice and human rights. pensions and public services. The Haldane Society will We have invited delegations from Colombia, Palestine, the Rbe providing practical solidarity to workers on strike in defence of Philippines, Swaziland and the Caucasus region. We hope that the public services. audience will include members of an even broader range of national Len McCluskey in this issue calls for industrial action, and protest and international campaigning organisations and solidarity on the street – the oldest form of democracy. He voices support for UK movements. More details are on the back page. Uncut and for the student protests, and opposition to the police tactics Defending Human Rights Defenders will be a fantastic of kettling and other forms of containment. We agree with McCluskey opportunity to provide practical support and solidarity to comrades that what is needed is resistance at all levels and across all groups. facing death threats for standing up for human rights. Please circulate Riots may not be a political tactic, but they certainly reflect the the event widely, and contact Haldane Vice-Chair Anna Morris at sheer desperation and alienation experienced by poor young people [email protected] if you can offer practical assistance in the in urban environments. They have seen their access to higher organisation of the event. education snatched away from them – through the increase in We are sad to report the death of Haldane Society Vice-President university fees and the abolition of the EMA – they regularly find Professor Kader Asmal in June 2011, and we are proud and themselves subject to heavy policing, they are at the sharp end of the privileged to have been associated with him. Kader Asmal was a cuts to welfare benefits and indeed legal aid, and in August 2011 it all South African lawyer, stalwart of the freedom struggle and long- just snapped. Connor Johnston, from Young Legal Aid Lawyers, gives standing Haldane member, who worked while in exile principally at a vivid account of observing the Hackney riots from his window and Trinity College, Dublin. Besides representing the ANC in Ireland, he remarks on the ‘near impossibility of escaping poverty’ for many found the time to champion human rights in Northern Ireland, chairing young people. an inquiry into the British Army and RUC’s shoot to kill policy and Meanwhile, the Tories have stepped up the attack on the Human helping to found British Irish Rights Watch. On his return to South Rights Act. The insidious propaganda against it relies on xenophobia Africa, after the fall of the apartheid-regime, he helped to write South and right-wing ‘law ‘n’ order’ type rhetoric: rights are appropriate for Africa’s Bill of Rights and proposed setting up the Truth and law-abiding British citizens but immigrants, criminals, travellers and Reconciliation Commission, as well as serving as Minister for Water others are demonised. This rhetoric deliberately misses the points that and Forestry Affairs and then as Education Minister. Richard Harvey rights are rights no matter what. The whole point of human rights is and Michael Seifert share their memories of Kader. that they should not be determined by political expediency or popular Kader told the ANC’s National Executive Committee in 1993, prejudices. when some members were anxious to excuse human rights Human rights are under attack all over the world. Colombian trade abuses committed by their own organisation: ‘Human unionist, human rights defender and academic Liliany Obando has rights are human rights, they belong to all human been detained, without charge or trial, for over three years. Whilst the beings, whoever they might be’. Wise words, which new Santos government in Colombia promised that his Government the ANC was right to accept, and which we need to would have ‘a firm and unwavering’ commitment to human rights, on repeat whenever Theresa May, The Daily Mail average one Colombian human rights defender is murdered every and David Cameron try to whip up three days. xenophobia and hatred. l Liz Davies, chair of the Haldane Society of Socialist Lawyers [email protected]

Tuesday 8th November(nearest tube Haldane Annual GeneralGoodge Meeting: Street) following6.30pm Geoffrey at the Bindman’s College oflecture: Law 14 Store Street, London WC1E 7DE News&Comment

Genoa conference: solidarity in action

n 20th July 2001 Carlo bring together progressive lawyers Giuliani, a 20 year old in most European countries, are anti-globalist, was shot working ever more closely Odead by a police officer together. during the demonstrations against The Conference took place in

the Group of Eight summit that the magnificent Palazzoi Ducale in / reportdigital.co.uk Jess Hurd Picture: was held in Genoa, Italy. Genoa. There were more than 100 Since that tragic event, attacks participants, with simultaneous on fundamental rights, especially translation into English, French, the rights to associate and Italian, and Spanish – a truly demonstrate, have intensified international event. across Europe. One such attack The Haldane Society was well came from an unexpected represented at the Conference. In direction. On 24th March 2011 addition to the named speakers, the Grand Chamber of the Carlos Orjuela of the Haldane European Court of Human Rights Executive participated. dismissed the complaints brought Sarah McSherry of Christian by Carlo’s mother and brother. Khan Solicitors made an engaging The Court was however deeply and passionate contribution to the Some of the 35,000 trade unionists demonstrating outside the Tory Party conference divided, by 13 votes to four on round table panel entitled ‘The some issues and 10 votes to seven Status of Rights in Europe: The featured speakers with equally on others. A number of the most Evolution of Repression Against Union high profiles in the field: Len highly regarded judges of the Social Movements and the McCluskey (General Secretary of Court, including Judges Rozakis, Response of Lawyers in Different Unite) and Sally Hunt (General Tulkens, and Zupancic, held that Countries.’ She was joined by leaders Secretary of UCU). Italy should have been condemned radical lawyers from Italy, France, The current assaults on for violations of the procedural Germany, Greece, Catalonia, ‘refreshing’ workers, such as reductions in aspects of Article 2 (Right to Life) – Belgium, Switzerland and the public sector pensions, formed the the State’s positive obligations. Basque Country. In a keynote ongress House was a basis of much of the discussion. The issues have not gone away, address, Tony Bunyan of fitting setting for the Both McCluskey and Hunt also not least the scandal of kettling in Statewatch gave a chilling and event ‘Standing up for expressed their concerns over anti- Britain. The Haldane Society lucid presentation on Ctrade union rights: past, union rhetoric from those in played an important role in ‘Transnational European present and future’, jointly hosted Government and whether the organising the Genoa Conference Cooperation Between Police by The Haldane Society and the labour movement in this country entitled ‘Ten Years of Attacks on Forces: Techniques for Control of Institute of Employment Rights could survive any further Fundamental Rights: The Role of Popular Protest Demonstrations’. (IER), in May 2011. This was the tightening of anti-union laws. Lawyers’. The Conference was Papers given at the Conference second year running that Haldane McCluskey adopted a more also jointly organised by the are published on the ELDH and IER had organised an forthright tone, suggesting that ELDH (European Lawyers for website: www.eldh.eu. employment law event at the TUC unions will have to take the fight to Democracy and Human Rights) The next ELDH Executive headquarters, following on from the Tories if we are to effectively and the EDL (European takes place in Berlin on 26th last year’s successful event with resist their assaults on employment Democratic Lawyers), led by the November 2011, to plan events for former Labour Party General rights and try to overturn some of Italian lawyer Gilberto Pagani. the next period. All are welcome! Secretary Jim Mortimer and Lord the anti-union laws that had failed The two organisations, which l Bill Bowring Wedderburn QC. This year’s event to be overturned during 13 years July 5: British judge Sir Nicholas Bratza is 7: The long-awaited judgments in Al- 13: The Supreme Court rules that the 13: The Government announces plans appointed President of the European Skeini and Al-Jedda are delivered by Government could not rely on the to criminalise squatting. The move Court of Human Rights and succeeds the Grand Chambers of the European common law to use secret evidence in came as the Government’s own impact Jean-Paul Costa when he retires at the Court of Human Rights. The Court held the case of al Rawi & others. The Court assessment said the proposal could end of November 2011. that both situations fell within the United said it could not order a closed increase homelessness and worsen Kingdom’s jurisdiction, and it found procedure in the absence of a statutory conditions for those already suffering violations of the procedural duties under framework. from mental health and related the right to life in the first case and of the problems. right to liberty in the second one.

4 Socialist Lawyer October 2011 On the picket line Are employment judges biased against claimants?

he answer you will get years ago, has written that the One case in the news this depends on who and how calibre of judges has improved summer for example concerned a you ask. The Tribunal dramatically in that time, as has worker who had the misfortune to Tsends the parties feedback their understanding of sue a celebrity businessman. questionnaires; their answers are discrimination law in particular. The case against the collated in a periodic Survey of Bias appeals are rare. They are businessman was struck out at an Employment Tribunal fact-sensitive; they follow the interim hearing on the basis, in Applications. The majority of general principles of the common part, of criticisms of the way the claimants say that they received a law, that a fair trial is impossible worker had pleaded the case, and fair hearing. Satisfaction levels are when there is actual or even mere in part on the basis of factual similar among claimants and apparent bias. To give two findings in a case where there was respondents. examples: neither oral nor written evidence There have been qualitative Where a Judge expressed a view before the Employment Judge. studies of claimants, in which they of the merits of a case, after the The Judge went on to make a are asked to do more than merely evidence but before closing costs award in favour of the tick a series of boxes. In these submissions that was not apparent celebrity, suggesting that the studies, a substantial minority of bias. Apparent bias was made out claimant could reasonably be Tribunal claimants complain that however where a Judge had been expected to pay amongst other their Judge was hostile to them from refused employment with a things the full fees of the counsel the start of the hearing. This sort of particular solicitors’ practice, and who had represented the celebrity, in Manchester in September. detailed empirical study is usually on failing to be appointed, which were £1,000 per hour. One only carried out among intervened in his next case firmly hour of the celebrity’s barrister’s of Labour rule. He argued that for discrimination claimants. Their against a client represented by the time was equivalent to three weeks the moment the Labour Party still complaints are perhaps same firm. of the claimant’s gross monthly provided the best available unsurprising; claimants in The above cases are relatively salary. This was a striking decision, opportunity to make that fight, discrimination cases fare noticeably old; there have been very few in what is usually a costs-free and that unions should be worse at full merits hearings than reported bias appeals in the past jurisdiction. focussing on winning Labour back their counterparts in other types of decade. The case against the to the side of working people. employment claims. A reason for their absence is that businessman being struck out, Hunt, on the other hand, noted In the 1970s and 1980s, a the EAT rules discourage bias there remained a live case against with trepidation the comments number of academics suggested appeals. There is a specific the employing company which the from those such as London mayor Tribunals were subject to procedure for such appeals, businessman was to close down in Boris Johnson, who have called institutional pressures which additional documents may have to any event shortly after the hearing. for further restrictions of the right favoured respondents. Few be filed, and permission to appeal is The Judge, being criticised for to strike. Over the next five years academics consider the question less likely to be granted save after a their interim decisions, agreed to unions would be doing well to today. preliminary hearing. take no further part in the case. simply hold their own and avoid A book published in 1983 Paragraph 11.6.2 of the Practice After the hearing however the further erosion of employment described the experience of one Direction records that ‘The EAT Judge declined to record this rights, let alone any attempt to Asian claimant who asked for an recognises that employment Judges recusal in their note of the overturn current restrictions. adjournment after being ambushed and Employment Tribunals are judgment; and then when Both McCluskey and Hunt by his employer at the final hearing themselves obliged to observe the challenged about this omission, seemed refreshingly aware of the of the claim with reasons for his overriding objective and are given issued a further judgment in which dangers ahead and the vital role dismissal which had never been put wide powers and duties of case the Judge denied using the very unions must play in confronting to him previously. The Employment management so appeals in respect words which, the claimant’s those dangers. Tribunal Judge awarded costs of the conduct of Employment representatives complained, the l Michael Goold against the Claimant. The EAT Tribunals, which is in exercise of Judge had spoken in recusing overturned the costs awarded on those powers and duties, are the less themselves. appeal but not without criticising likely to succeed.’ An appeal was issued. The the claimant for seeking the Paragraph 11.6.3 of the Practice Respondent however agreed not to 13: An inquiry into the phone adjournment. Sir Ralph Kilner Direction continues: ‘Unsuccessful enforce the costs order, making the hacking scandal at the News of the Brown suggested that the claimant’s pursuit of an allegation of bias or appeal academic. The appeal was World is announced. Lord Justice inability to meet a case he had not improper conduct, particularly in ultimately withdrawn and will Leveson is to chair the inquiry which expected was ‘somewhat typical of respect of case management therefore never be reported. What will examine the culture, practices the oriental mind’. decisions, may put the party raising cases such as this one make clear and ethics of the press. It will also consider the effectiveness of current Michael Rubinstein, who has it at risk of an order for costs.’ however is that, despite the relative media regulation powers. been reporting industrial law cases While the rules discourage bias absence of reported cases, bias since the Tribunal took on the appeals it is clear that bias is an issue in remains a live issue in Tribunal unfair dismissal jurisdiction 40 a large number of unreported cases. proceedings. n

Socialist Lawyer October 2011 5 News&Comment

Network hopes to help energise the left

he left in Britain, Hendy QC, Nick Toms. Nick whether the trade Wrack and Gordon Nardell QC. unions or the broader John McDonnell outlined two Tleft, has so far failed ‘shouldn’ts’ – no new formal either to repulse the neo-liberal organisation and no democratic onslaught of the ConDems, or to centralism. Two ‘shoulds’ were a pull the Labour leadership to the network with no fetishism left. On 7th September 2011 over concerning membership, and the 50 activists gathered at Birkbeck emphasis on participation; and College to hear and debate approaches to network people. proposals by John McDonnell John called, as an example, on MP (Labour Representation Greg Philo of Glasgow University, Committee). All participants were who has been gaining significant clear that the objective was not to publicity for his proposals for a create a new political party or Wealth Tax, and privatising the even a new political think-tank, national debt. but rather to build a dynamic and The blogger Dave Ostler spoke creative network of socialists. on how to use the new media, The Haldane Society Executive while Peter Tatchell called for had already decided to give full propagating simple ideas on support to the Socialist economic democracy. Helen Shaw Policy Network, and Haldane of Inquest gave her own example comrades present included John of a small organisation with big One of many of the left’s positive actions – Uk Uncut’s angry demo against the NHS Legislators in Europe and US could learn a lot from Ecuador

uring the evening of American embassies in London, including as Foreign Secretary. of topics from an Ecuadorian and 28th September 2011 a which is testament to the high The talk was billed as an Latin American perspective. He large audience pulled regard with which Dr Falconí is exploration of Ecuador’s spoke of post-neoliberal Dthemselves away from held. inclusive policies, progress economic models developing enjoying London’s Indian Dr Falconí obtained both his achieved in the expansion of across many of the now left- summer to listen to a compelling masters degree and doctorate in democracy and poverty leaning countries in Latin seminar delivered by Dr Fander Ecological Economics at the eradication, Ecuador’s green America and of Ecuador’s Falconí at the Ecuadorian Universidad Autónoma de model of development and its constitutional commitment to the Consulate by Trafalgar Square. Barcelona. He occupied role in Latin American regional environment. Dr Falconí cited as Amongst the audience members ministerial posts in the integration. a leading example of Ecuador’s were most of the ambassadors Government of Rafael Correa in True to the billing Dr Falconí environmental policy the nation’s from the respective Latin Ecuador between 2007 to 2009 engagingly covered a wide range approach to the Yasuní national July 13: Julian Assange’s appeal hearing 18: Sir Christopher Rose, a former ‘I greatly appreciated and 20: Goran Hadzic, a leader of the against extradition to Sweden appeal court judge, is appointed to enjoyed our wide-ranging Serbian insurgency in Croatia during concludes in the High Court. The lead an inquiry into claims the CPS conversation’ the Yugoslavian wars, is arrested by Swedish authorities want him to face suppressed evidence relating to the Tony Blair, in 2008 to Libyan Serbian authorities. Hadzic is the last of accusations of rape, sexual undercover police officer Mark dictator Colonel Gaddafi 161 suspects wanted for alleged war molestation and unlawful coercion Kennedy. The inquiry will consider crimes during the 1990s. The arrest following complaints by two women. whether prosecutors in the Kennedy ‘Yours ever, Tony’ followed two months after that of case met the fundamental obligation How Blair signed off his secret genocide suspect General Ratko of disclosure, to give lawyers for the letters to Gaddafi Mladic. accused any evidence that could assist their defence.

6 Socialist Lawyer October 2011 News&Comment

impact. The film-maker Ken Loach gave his support for an A chance to buy some umbrella organisation, but warned that there are no open doors in the mass media for modern Cuban art – and socialist ideas. Mike Phipps of Iraq Occupation Focus gave the support the Miami Five example of his newsletter, but spoke of a crisis of representation. Gordon Nardell argued for the ith the exception of 5. To this end, the exhibition will need for an infrastructure for the Socialist Lawyer include works by two of the

Picture: Jess Hurd / reportdigital.co.uk Jess Hurd Picture: Socialist Policy Network and gave and information Miami 5 – Antonio Guerrero and as an example the Left Economic Wfrom the Cuba Gerardo Hernandez. It is Advisory Panel. Solidarity Campaign, the British expected that members of the Clare Solomon gave her views media has been silent on the case families of the Miami 5 and two on how to get to the youth, using of the five Cubans who were of the artists exhibiting will be her 20 year old son as an imprisoned for monitoring accompanying the exhibition. example, through YouTube – and terrorist acts against Cuba. For 12 Prestigious British artists who cited her own organisation, years these five Cubans have been are supporting the event include Counterfire. Dave Green of the held in the US in confined spaces John Byrne, Alasdair Gray and Fire Brigades Union insisted on with minimal opportunities for Richard Deacon. Further eminent the need to win arguments for contact with the outside world. patrons have been drawn from example with FBU members who To challenge this media silence, the worlds of Art, Medicine, Law, had voted for the Coalition. London and Glasgow will host a Literature and Theatre. By Robin Handforth, a sixth form ground-breaking exhibition, supporting the exhibition, these student, added a view from his showcasing the work of up to 30 patrons are highlighting the own generation. of Cuba’s most established artists. significance of Cuba in today’s Overall, the mood of the Beyond the Frame: world and the necessity to meeting was positive and Contemporary Cuban Art is set campaign for the freedom of the enthusiastic, and next steps are for 23rd to 28th April 2012, at Miami 5. Central to the event will eagerly awaited. Gallery 27, Cork Street, London. be the sale of the art so that reform bill in London in October. l Bill Bowring It will draw together a wealth of proceeds can go to their defence. styles which reflect the richness of It is hoped that legal firms and cultural life in Cuba today and individuals who work in law will will also include work by eminent be inspired to attend and support. British artists. The exhibition will Funding of the exhibition is a move to Glasgow in May 2012. priority and can be done in the Produced in collaboration following ways: sponsorship by park in the Amazon. Rich in oil spoke of the strength of with the Visual Arts Council of companies, organisations and and other natural resources, the Ecuador’s democracy in fending Havana and co-ordinated by the individuals; and the purchasing of area is ripe for exploitation. off the attempted coup against Cuba Solidarity Campaign, art works. However the Ecuadorian Rafael Correa in September Beyond the Frame will be a There will be access to a preview Government has sworn to 2010. dynamic addition to the cultural on 24th April 2012. For all those protect the Yasuní park from In these turbulent economic calendar. It will be the most who are interested donations will such exploitation and mineral times this lecture was a pertinent encompassing exhibition of be gratefully received at extraction as an example to the reminder that there is much that Cuban art to be displayed in the www.cubabeyondtheframe.comor world of another way of legislators in Europe and the US UK to date. It will furthermore be via the Cuba Solidarity Campaign. approaching environmental have to gain from ideas a campaigning tool, intended to If you are interested email policy beyond endless emanating from Latin America. foster awareness and active [email protected] consumption. Dr Falconí also l Tim Potter support on the issue of the Miami l Jo Hillgro ve August

21: Four Kenyans win the right to sue 4: The Guardian reports that it has 4: The Gibson Inquiry suffers a blow 12: The Independent Police the British Government for seen a top-secret document which after lawyers and human rights group Complaints Commission (IPCC) compensation over their alleged reveals that MI5 and MI6 officers were announce they will boycott its admits it may have inadvertently torture by colonial officials and soldiers encouraged to use information from hearings. The move came after the misled journalists into believing that during the Mau Mau insurgency in the prisoners being tortured overseas. The Government said key sessions would Mark Duggan had fired at police. 1950s. The UK Government had policy instructed senior intelligence be held in secret and that the cabinet Duggan was killed by police in argued that it should not be officers to weigh the importance of the secretary would have the power of veto Tottenham on 4th August 2011 which answerable for abuses from that time information being sought against the over information available to the public. sparked several nights of disturbances and that the responsibility now lay with amount of pain a prisoner should in London and other cities. the current Kenyan Government. suffer.

Socialist Lawyer October 2011 7 News&Comment

‘They are separating families and ruining so many lives here, and for what?’

he story of Dale Farm programme, which had a stated has received an aim of creating new, permanent, astonishing amount of sites, to ‘tackle the inequalities Tinternational support experienced by Travellers … one and recognition. Supporters cut of the most disadvantaged across the political spectrum [groups] in the country’ led to the because this eviction is unlawful, building of just four new sites, unfair and morally unjustifiable. with a total of 37 pitches. 62 new In 1994, the then Conservative pitches were created on existing Government overturned a legal sites and 178 pitches were requirement for local authorities refurbished. Rather predictably, to provide adequate sites for the Coalition Government has Travellers and Gypsies. This since scrapped the grant and shortage of sites, coupled with the provided only half of the funding extremely low success rates of to provide sufficient sites. planning applications made by In the Dale Farm case, Travellers and Gypsies, has Basildon’s response to such a resulted in the gradual erosion of shortage was not to offer enough their way of life. The new suitable traveller sites to preserve Localism Bill, which has been put the traditions of this evicted group forward by a Conservative MP, of people, but to offer ‘bricks and will further compound this mortar’ accommodation in a problem. It promises to outlaw number of different areas. retrospective planning permission, The obligation set out by which had been virtually the only Europe and the United Nations to way Gypsies and Travellers have recognise the needs of Gypsy and managed to get sites approved. Traveller communities has been The Gypsy and Traveller Sites completely ignored. The UN Grant launched in 2008 provided Committee on the Elimination of funding for local authorities and Racial Discrimination has registered social landlords to condemned the Dale Farm create new sites and refurbish eviction as ‘unwise and immature’. existing sites. The grant The UN was joined by Thomas Photos of traveller children, from a project with photographer Jess Hurd, are held August September 17: Concerns are expressed at the 30: Bolivia’s highest court convicts five 1: Statistics reveal that of the 1,560 1: Sheffield City Council appeals severity of sentences given to those former top military commanders of suspects brought before the courts to the Supreme Court over the guilty of offences during the riots. ‘We genocide for an army crackdown on for riot-related offences, 66 per cent Court of Appeal’s decision that it know the courts are swamped with riots in October 2003 that killed at least have been remanded in custody. In paid thousands of female cases and handing down hurried and 64 civilians. Those convicted are given 2010, only 10 per cent of those employees less than men doing overly punitive sentences [that] will custodial sentences ranging from 10 to appearing in Magistrates’ Courts comparable jobs. A three-day result in many criminal appeals which 15 years. Two former Cabinet ministers were refused bail. hearing will take place in October will act as a further drag on the system,’ were found guilty of complicity in the 2011; the first time the Supreme said Andrew Neilson, from the Howard killings and were sentenced each to Court will have examined the League for Penal Reform. three years. issues of equal pay.

8 Socialist Lawyer October 2011 News&Comment

Hammarberg, the Council of removed. He held that the council Europe’s Commissioner for must tell residents on a plot-by- Human Rights, who warned there plot basis what enforcement was a great risk of human rights measures are proposed. violations if 86 families and 100 On 3rd October 2011, the date children were forcibly removed. of this article, Mr Justice Edwards The UN proposed a peaceful and Stuart ruled that most of the appropriate solution in which caravans at the Dale Farm negotiations would take place Traveller site can be removed. between all parties. This would Basildon now has permission to include identifying culturally remove 49 out of 54 plots but,

Picture: Jess Hurd / reportdigital.co.uk Jess Hurd Picture: appropriate accommodation, with because of the wording of the full respect for the rights of the eviction notice, it cannot remove children and families involved. the walls, fences and gates. The According to the Equality and Council’s stated hope of ‘clearing’ Human Rights Commission the the site and returning it to life expectancy of Gypsies and greenbelt land is not, therefore, Travellers is 10 years lower than possible at the moment. the national average, while With the number of Court mothers are 20 times more likely hearings in September 2011 and a to experience the death of a child. legal battle going back to 2002, In August 2011, the Travellers when the eviction notice was failed in their attempt to win a drawn up, it is unclear where the last-minute injunction in the High fate of Dale Farm lies. The Court, in an attempt to halt the permission to evict granted on 3rd eviction. The case largely hinged October 2011 cannot begin on the circumstances of an immediately, as Travellers wait to occupant of Dale Farm, 72 year- hear about three separate judicial old Mary Flynn, who had suffered reviews concerning the legality of a serious deterioration in health. the eviction. If the Dale Farm However, the Judge was told by residents’ application for a judicial the council that this fresh material review into the legality of the would be considered before entire eviction fails, Basildon proceeding against her. The Judge Council must then decide whether ruled that the planning system had to spend £22 million on a partial been efficient and fair. eviction Basildon Council set 19th In response to Mr Justice September 2011 as the date for the Edwards Stuart’s decision, Dale eviction of residents of the Dale Farm resident Kathleen McCarthy Farm site. However on that very said: day the High Court granted the ‘This will leave Dale Farm as a Travellers an emergency patchwork of concrete and fences, injunction restraining the Council not the greenbelt the Council are from clearing structures on the site claiming it will be. Where are we pending a further hearing at the supposed to go? They are High Court. The crux of the separating families and ruining so Judge’s decision was that the many lives here, and for what? To residents had not been sufficiently turn Dale Farm into a scrapyard informed about what was allowed again. It’s ridiculous’. by residents of Dale Farm on the eve of eviction by Basildon Council in Essex. on each pitch and what must be l Marina Sergides

8: The long-awaited findings of the 14: A panel of Scottish judges set 15: Activists protesting against the 20: The Metropolitan police drop their Baha Mousa public inquiry are up by First Minister Alex Salmond to Government’s plans to criminalise much-criticised attempt to order The published. Sir William Gage found review the Supreme Court’s powers squatting climb onto the roof of Justice Guardian to reveal sources relating to that British soldiers had inflicted upholds the Court’s right to overrule Secretary Ken Clarke’s home in Oval. the phone-hacking scandal at the ‘violent and cowardly’ assaults on the the country’s judges. The panel was One protestor unveils a mock six- News of the World. The Met had tried Iraqi civilians which had been created following the Supreme month eviction notice. to rely on the Official Secrets Act to gratuitous. Gage said the soldiers did Court’s decision to overturn the force the newspaper’s hand but not know what was permitted in conviction of Nat Fraser for murder backed down after what was widely handling prisoners of war. after it said significant evidence was condemned as an attack on press withheld. freedom.

Socialist Lawyer October 2011 9 News&Comment

Tower Hamlets defeats the EDL

n 3rd September 2011 contrast to what people have the English Defence come to expect from the League (EDL) made yet Metropolitan Police. Indeed, another attempt to coming so shortly after the recent O / reportdigital.co.uk Jess Hurd Pictures: intimidate Muslim and ethnic riots, the anti-fascist minority communities with a demonstration was conspicuous planned march through Tower for its lack of violence from either Hamlets in London’s East End. protesters or police, and was a Stated targets of the EDL included prime example of a community the East London Mosque and united in response to the EDL’s Altab Ali Park, named after the attempt to spread violence and victim of a racist murder a street hatred. The Haldane observers away. In response Unite Against witnessed no arrests and an Fascism (UAF) called for a large- extremely small number of stop scale counter-demonstration and searches. Furthermore, in nearby. The Haldane Society sent defiance of the ban a march of a team of legal observers at the sorts did take place with minimal request of UAF in order to obstruction by police. monitor the policing on the In contrast, the EDL’s counter-demonstration. demonstration was by all accounts Shortly before the march was a drunken and violent affair. due to take place the Home Denied the ability to assemble near Secretary, Theresa May, banned the East End by the RMT’s refusal all marches within Tower to allow them to use Liverpool Hamlets, the City, and four other Street Station, and then again London boroughs for a period of frustrated by RMT action at King’s CWU members join the protests against the EDL in Tower Hamlets. 30 days from 2nd September Cross, the EDL’s assembly near 2011. This affected both the EDL Aldgate was delayed and Tower Hamlets. If it was not for noticeably smaller number of and UAF marches, although it did fragmented. They were never able the presence of the counter- people on this demonstration not include static demonstrations. to make their way into Tower demonstration the EDL could than previously, means that the It appears that several other Hamlets to attack the communities easily have been permitted to 3rd September 2011 must surely marches have also been affected, which they had intended to target, rampage through the heart of be marked as a defeat for the including demonstrations against as the static demonstration was London’s multicultural East End. EDL, which hopefully indicates a Government cuts to public contained within a large police However, it was not organised decline in their fortunes. services. Notwithstanding this kettle. Despite this kettling of the anti-fascist resistance which If the fascists within our fact, the marching ban provoked a protest though, the police did physically prevented them society are to be defeated, it will great deal of jubilation within clearly facilitate the EDL’s entering Tower Hamlets, but not be through anti-fascists some sectors of the anti-fascist assembly and protected them from rather the 3,000 police on duty pandering to the State, politely community. anti-fascist resistance. that day. requesting that marches are On the day the policing of the Organised anti-fascist The failure of the EDL to banned and organisations UAF demonstration was relatively resistance clearly played a role in achieve any of their aims, and the outlawed. The State is as likely to light-handed, in very clear stopping the EDL from entering fact they managed to bring a use these powers against those September October 27: The Court of Appeal criticises the 30: The Communities Secretary, Eric 4: Three out of 20 retired members judge Andrew Gilbart QC, the Pickles (pictured right), announces of the Salvadoran military agree to Recorder of Manchester. Its rebuke that the Government will make a appear by video-link at Spain’s came after Gilbart had made £250m fund available to help local Audiencia Nacional on 8th comments on the sentencing of councils retain or restore weekly bin November 2011. Spain is seeking offenders in the wake of the riots. The collections. The figure represents 70 the extradition of the 20 former Court was particularly concerned that per cent of the amount which the military men from El Salvador for the his comments had extended to government intends to remove from assassination of five Spanish Jesuit offences which were not before him. the legal aid budget. priests, their housekeeper and her daughter in 1989.

10 Socialist Lawyer October 2011 Young Legal Aid Lawyers This regular column is written by YLAL members. If you are interested in joining or supporting their work, please visit their website www.younglegalaidlawyers.org For many young people there is, simply, no way out

peculating on the one to listen to them or speak for meaning that this is something causes of the August them. The trendy young Labour they are not prepared to spend riots and what they say councillors elected last year to money on. But lack of aspiration Sabout our society is a Hackney Council – an island of is not the problem. In the last risky business. As Aditya red in a sea of blue – were year I have come across young Chakrabortty put it in The conspicuously absent on people from the most difficult Guardian, the riots have Clarence Road. backgrounds who have aspired provided ‘a kind of grand The third, was the dawning to be doctors, architects or to run Rorschach test in which comprehension of the reality of their own businesses. What holds members of the right and left… having nothing. It came several them back is not the lack of a peer into smouldering suburbs days later, visiting a fourteen- dream or self-belief, it is a dearth and shopping streets – and see year old client. He was living of practical help and guidance. precisely what they wanted to with his Grandmother looked- Yohanes Scarlett, a 20-year-old see’. after, in the loosest sense of the politics student from Ladbroke On this note of caution, there phrase, by social services. Their Grove with friends who took were three things that struck me two-room flat was devoid of part in the riots, points out that in the wake of the riots. furniture but for two chairs. He for his generation there is very The first, watching the scenes sat on the lino while we talked. little training in basic skills below my flat on the Pembury ‘He is getting better’, his needed for employment or Estate in Hackney, East London, Grandmother says. ‘He does not further education. ‘One of my was the overwhelming sense of ask me for things which we favourite lessons at school was inequality; the stark division cannot afford anymore’. ‘I still Citizenship – the teacher explains between the ‘haves’ and the want them’, he says in a little what being a good citizen is, you ‘have-nots’. Before the arrival of voice, screwing up his face and learn about politics and society. scores of police first on foot, looking at the floor. ‘I just know It makes you feel, oh, OK I like batons banging on riot shields, we can’t afford them so there’s having these conversations, I like and later on horseback, there had no point asking’. debating. A lot of young people been little in the way of violence. Through each of these like that but it is not really The notable exception was when disparate problems there seems emphasised.’ a twenty-something cyclist had to be a common thread. A lack of It is with this in mind that opposing fascism as against the pulled up among the assorted social mobility or to put it YLAL over the next year is fascists. Neither will it be solely protagonists and onlookers; his another way, the near planning to renew its work on through violent action on the expensive fixed-wheel bike, impossibility of escaping poverty. social mobility. Until now our streets, which does nothing to skinny jeans and Tour de France For many young people there is efforts have largely focused on change the sense of ostracism that style cap immediately setting him simply no way out. In the context researching the causes and effects many working class people rightly apart. He was quickly singled of the legal profession this lack of of social-immobility within the feel. The only way to overcome out, youths zoning in on him social mobility strikes deep. As legal profession and using this as the threat of fascism is to work from opposite ends of the crowd, law traditionally feeds into a tool to lobby Government. within the working class pulling his rucksack from his politics and, by definition, the Over the next year our intention communities which are side-lined back and throwing him to the judiciary, it risks creating an is to change the focus of our by our society in order to build an ground, his bike on top of him. establishment too quick to write work to start providing more organised and political socialist He cycled off to shouts and jeers, off the youth of today as a ‘feral practical help to those from resistance both to fascism and to shaken but unharmed. The underclass’. On a more day-to- poorer backgrounds. Speaking in the capitalist state. feeling of resentment at the day level, it means that lawyers schools, mentoring, and

l Stephen Knight / reportdigital.co.uk Jess Hurd Picture: privilege which he represented do not reflect those who they providing practical advice – these was palpable. represent. I often meet young are the things that we have in The second, later in the people involved in the criminal mind. evening, was the sinking justice system who have not Perhaps, in the wake of the 4: Theresa May uses her speech at realisation that these young men understood much of what their riots, we are just seeing what we the Tory party’s annual conference in and women had absolutely no- lawyer told them at trial. This want to see. But if that makes us Manchester to claim that an illegal one to represent them. Aside can only serve to fuel their sense change things for the better then immigrant was granted permission to from one youth worker from of disenfranchisement. perhaps that does not matter. remain in Britain because he owned a Tottenham, his face covered, Government policy on social l Connor Johnston is a cat. Subsequent enquiries revealed that the reasons for the man’s legal there was no one among them in mobility, both under the current paralegal at the Howard League victory were more complicated. Cue any kind of position of and previous administration has for Penal Reform and an executive days of feline puns in the broadcast responsibility taking the time to focused on ‘raising aspirations’; committee member of Young news. talk to these young people; no- dynamic sounding shorthand Legal Aid Lawyers

Socialist Lawyer October 2011 11 uprising in 1976. Not even The Guardian had been interested in our detailed report. Kader suggested filing it at the United Nation’s Special Committee Against Apartheid, which we did. Over the following years Kader often testified at the Committee’s hearings. In 1979, Kader invited me to Dublin to represent The Haldane Society at the first conference on the EEC and apartheid, where he introduced me to Oliver Tambo, the ANC President who was to lead the liberation struggle to the brink of success, dying shortly before his law partner, Nelson Mandela, emerged from prison to take the movement to its final victory. Kader was there every step of the way. In 1980, when The Haldane Society undertook its first investigation into the operation of non-jury courts in Northern Ireland and the Irish Republic, Kader made his rooms in Trinity available to us and helped us set up interviews with the Presiding Judge of the Special Criminal Court and leading Senior Counsel. In 1984 when the shoot-to-kill policy of the British Army and RUC in the North was targeting unarmed people who were not engaged in any form of criminal activity, I flew to Dublin hoping to persuade Kader to work with us. I had prepared an elaborate preamble, saying of course I would never ask VIVA KADER him to engage in anything that might interfere with his ability to represent the ANC in Dublin. I realised issues concerning Northern Ireland were considered controversial by ASMAL! VIVA! many in the Republic. He cut me short: ‘What do you want me to do?’ ‘Well,’ I said, Chair an A salute to The Haldane Society’s late and inquiry?’ ‘Of course I will,’ he said. ‘It’s about time I did something on human rights in great Vice-President, who died recently Ireland. Now, who’s sponsoring it?’ I told him The Haldane Society, the Brehon Law Society If you ever knew Kader Asmal you could leading spokesperson, activist and of New York, the IADL, the National never forget him. If you did not, then let us theoretician of the ANC in exile. Conference of Black Lawyers (US) and the introduce you to one of the greatest of At a demonstration against the banning of National Lawyers Guild (US). ‘Fine, now, let’s revolutionary lawyers. the ANC in 1960, two of his friends were have a glass of whisky and see who else we can Senior Lecturer in Law at Trinity College, arrested. Kader promptly turned to the get to do it. How about Geoffrey Bindman?’ Dublin, chair of the Irish Anti-Apartheid National Council for Civil Liberties, now We were off. Movement, Minister for Water and Forestry Liberty, for help. The phone was answered by In 1989, following the murder of Belfast Affairs under Nelson Mandela and one Louise Parkinson. Thus began a human rights lawyer Pat Finucane, I arrived at Education Minister under Thabo Mbeki, friendship and later a marriage lasting almost the Finucane family home at the same he was also Professor of Human Rights at the exactly 50 years. moment as Kader and was welcomed by 16 University of the Western Cape, one of the In 1978 I flew with Kader to an anti- year-old Michael Finucane who has since chief authors of South Africa’s post- apartheid conference organised by the gone on to become a noted human rights apartheid Bill of Rights and the man who International Association of Democratic lawyer in Dublin, succeeding Kader as Chair originally proposed setting up the Truth and Lawyers in Baku, Azerbaijan, then in the of the Irish Council for Civil Liberties. Kader Reconciliation Commission. Soviet Union. I was to report on an IADL always remained a passionate supporter of the One of the greatest honours our Society mission to the Front Line States of Angola, international demand for an independent has ever received was that he accepted an Mozambique and Zambia. We talked about judicial inquiry into Pat’s murder. offer of vice-presidency. how to publicise the evidence collected of the Later in 1989 Kader delivered the D.N. He was born just outside Durban in 1934 apartheid regime’s mass murder and torture Pritt Memorial Lecture to The Haldane and died on 22nd June 2011. By the time he of student leaders in the wake of the Soweto Society, entitling it: ‘If Law is The Enemy’. He arrived in London aged 24 in 1958, Kader challenged British lawyers, saying we cared had already angered the apartheid regime by more about human rights in South Africa than chairing a packed public meeting to which he about the denial of rights in Northern Ireland. had invited the African National Congress’s He called on us to do more to combat abuses President, Chief Albert Luthuli, as guest for which our own Government was directly speaker. responsible. He came to read law at the London School After the lecture, Kader was asked whether of Economics, where one of his teachers he thought there was scope for a London- based NGO focused solely on human rights warned him against joining The Haldane Kader died before his Society, saying: ‘Some of them are known autobiography Kader issues resulting from the Irish conflict. He communists, I believe.’ Kader promptly Asmal: Politics in My supported the idea and so helped to found one joined. In London he helped found the Anti- Blood was published – of the most effective NGOs to arise out of the Apartheid Movement and rapidly became a it is out now. conflict; British Irish Rights Watch (BIRW).

12 Socialist Lawyer October 2011 Kader became a lifelong sponsor, together proposal will need far more time than you n Kader was a totally engaged political with Haldane President, Michael Mansfield envisage.” I suppose some of them imagined thinker and activist when I first met him QC and fellow Vice-President, Helena this was some kind of stunt or, worse yet, a in December 1960. We were in a student Kennedy QC. personal favour. I dug in my heels and canteen and I was sounding off in a brash In 1991 I made my first trip to South insisted: “Not only will these instructions be teenage way about how the Soviet Union Africa. The ANC had been ‘un-banned’ by the carried out speedily but I want you to tell me was a staunch ally of the poor and apartheid regime just a few months earlier and the date and time when I will be able to go in oppressed worldwide while the United its first conference inside the country was held person to turn on her water supply.” I States always backed the rich and privi- that year in Durban. Kader and I sat night remember with great pleasure the day I visited leged. Someone said you ought to meet after night after the formal meetings were the small house where Nokukhanya Luthuli that guy over there – he has the same over, talking about the rapid-but-too-slow lived, to perform this simple action. It was at views as you only he is less dogmatic and changes that were taking place. One night we the same time profoundly symbolic to the noisy. were joined in the bar by a group of young officials in my department and to the people Although not dogmatic Kader was comrades who had just returned from the they were employed to serve.’ completely committed to the ANC, bush, where they had been members of MK, Through such symbolic acts Kader although at that time only black South the ANC’s armed wing. They were so excited effected a massive transformation of South Africans could be members. The vital and to meet Kader and explained to me that as part African life. Millions of people, mainly tireless work and total commitment to lib- of their training they had read many articles by women, no longer have to walk for miles, eration of people such as Doc Dadoo, Joe him in which he had set out the legal basis carrying great containers on their heads, just Slovo and Kader meant that by the 1970s under international human rights for the to get one of life’s basic necessities for their under the brilliant leadership of Oliver legitimacy of the armed struggle. It was an families. As he wrote: ‘When I was a boy, the Tambo a tough internal battle was won to extraordinary moment for him to meet those family toilet was situated at the far end of the open membership of the ANC to anyone who had turned his theory into practice. yard. Getting there was dark and unpleasant who proved their loyalty to the liberation The conference ended with Kader being and scary. This is not particularly unusual for struggle regardless of race or creed. This elected to the ANC’s National Executive a South African, even now, but when I joined had a profound effect on the success of the Committee (NEC). The next three years were a anti-apartheid struggle and in shaping the whirlwind of law and politics, negotiation and future non-racial South Africa. debate as he helped to write South Africa’s new Over the years Kader committed him- Constitution with its ground-breaking Bill of self to the struggle against apartheid and Rights. One remarkable contribution Kader the wider struggle for a more equitable made is described by Albie Sachs in The and just world. He also understood to his Strange Alchemy of Law and Life. In 1993, fingertips the need to work with a broad shortly before the first democratic elections, range of people. An early member and the NEC was in deadlock over what to do treasurer of the Anti-Apartheid Move- about violations of international humanitarian ment (AAM), Kader on his subsequent law committed by some ANC guards in MK’s arrival in Dublin to teach law was instru- camps who had tortured people suspected of Pictured with mental in founding the Irish AAM and the spying for the regime. Some wanted a Mary Robinson Irish Council for Civil Liberties. Small commission set up while others sought to and Nelson wonder that Seamus Heaney, who wrote a excuse the ‘excesses’ committed by young Mandela. eulogy to Kader, would smile broadly at untrained freedom fighters. Pallo Jordan rose the mention of his name. to say: ‘Comrades, I’ve learned something very the Cabinet as Minister responsible for water, Kader’s high intelligence, total integrity interesting today. There is such a thing as my early experience of sanitation resonated in and limitless energy meant that it was regime torture, and there is ANC torture. And every policy I established.’ always a pleasure as well as a challenge to regime torture is bad and ANC torture is good; Kader’s second portfolio, under President work with him. He would consult me, as thank you for enlightening me!’ When he sat Thabo Mbeki, was Minister of Education. the English lawyer for the ANC and the down, as Albie recounts it: He had spent most of his working life as a AAM if any of his South African projects ‘It was at that moment that Professor teacher. He fought long and hard, if not or campaigns impinged on English law: Kader Asmal stood up and said: what we need always successfully, for the budget necessary from the nuts and bolts of sorting out in South Africa, the only answer, is a Truth to create an education system responsive to internal problems in SANROC to the Commission. Only a Truth Commission can the needs of all the people of South Africa. higher profile campaign to persuade the look at all the violations of human rights on all His door in the Ministry bore a sticker with Red Cross and Red Crescent to recognise sides from whatever party. Human rights are the words: ‘If you think education is the ANC as the legitimate representative human rights, they belong to all human expensive, try ignorance.’ of South Africa. beings, whoever they might be. Any torture or I will end with the emotional first A final example of the dependability of other violation has to be investigated on an paragraph of the prologue to Kader’s Kader came at the height of the miners even-handed basis across the board, not just memoirs: strike when the attacks on the NUM by one political movement looking at itself, ‘The day that South Africa convened its involved legal battles abroad including in but on a national level, with national first, democratically elected, non-racial Ireland. Kader unhesitatingly gave vital resources and a national perspective.’ Thus Parliament, 9th May 1994, was one of the technical and moral support to the miners was born the Truth and Reconciliation most important days of my life. As I sat at my – as ever he was unequivocally on the side Commission. desk on the leather-covered benches of the of people engaged in a just struggle. Following Mandela’s election, he asked Government side of the National Assembly in I last spent serious time with Kader Kader to take the Ministry for Water and my old suit and Trinity College Dublin tie, I some three years ago when he stayed with Forestry Affairs. Trevor Manuel, South saw the order paper was titled ‘First Session, us during his visit to London for Mike Africa’s Finance Minister, was to say Kader First Parliament’. It was as if the previous 300 Terry’s 60th birthday party at the South was the only person Mandela could possibly years of illegitimate, illegal state oppression African High Commission. In spite of the have chosen to turn Water Affairs into a ‘sexy had melted away at the hand of an astute brilliant successes and bitter defeats of the ministry’. As Kader told me when I visited him parliamentary officer with a keen sense of intervening years our discussions – late at the Ministry: ‘One of the first instructions I history. I wondered who had arranged for this into the night – showed that Kader’s ideas issued as Minister was to order the re-ordering of history on the order paper.’ were as fresh, his optimism and humour department to install water at the home of As they say in South Africa: Viva Kader as infectious and his idealism as untar- former ANC president Albert Luthuli’s Asmal! Viva! Hamba Kahle Kader. nished as 50 years before. widow. “Minister,” I was told, “such a l Richard Harvey l Michael Seifert

Socialist Lawyer October 2011 13 Picture: Jess Hurd / reportdigital.co.uk Jess Hurd Picture:

Donald Nicolson asks: Do Law Clinics help to create progressive lawyers for the future?

cademics on the left have an fact, however, research at least in the US, likely to lead to an uncritical acceptance of important role in the fight for albeit not confirmed in two very small UK law’s underlying values as neutral and social justice. Most obviously studies, suggest that left-learning legal objective, and the belief that law is justice. their research and writing can academics might do well merely to None of this is helped by the increasingly expose injustices in law’s encourage incoming students to retain their competitive nature of legal education in content and problems altruistic and political motivations. This is terms of admissions, results and obtaining Aregarding access to justice, as well as make because any impact legal education has on employment echoes the competitive suggestions for reform. They may even join student attitudes seems to be more in the individualism celebrated by law. Similarly, and advise political organisations mounting direction of dampening down altruism and the increasing expense of a university reform campaigns. Less obviously, but de-politicisation than the opposite. This education encourages students to see it as a equally importantly, academics can help seems plausible given the nature of what is short-term investment for long-term inspire new generations of lawyers to devote often called the hidden curriculum, namely financial gain. The channelling of students their skills and knowledge to redressing the unarticulated values assumptions, which into lucrative law careers rather than those injustice. Unfortunately, the dominance of supplement and may be as powerful as those devoted to helping the vulnerable is the careers market by the large law firms and contained in the formal curriculum, and reinforced by the preponderance of law cuts to Government funding of law centres which are communicated by example, by subjects involving the interests of the rich and civil legal aid means that there are only curriculum choices as to what courses are or and powerful, by large law firms’ dominance limited opportunities for graduates to pursue are not taught, at what level and for what of the recruitment process, and by informal careers orientated towards making changes credit points, and whether they are messages about legal careers provided by to law and society such as through public compulsory, and by student culture and staff and fellow students. However, while interest litigation or helping those most in contacts with the legal profession. many academics may portray a career in need of legal services. Consequently, many Thus, notwithstanding the shrinking large law firms or at the Bar as the height of progressive lawyers of the future might have dominance of black-letter scholarship and ambition, others may engender student to make do with campaigning or providing the growth of ‘law and…’ courses, most cynicism by openly disparaging lawyers as pro bono assistance in their spare time. legal education probably remains focused on mindless form-fillers and grubby money Nevertheless, whatever the exact level of teaching ‘the law’ and ‘how to think like a seekers. This leaves little space for the available opportunities for combining a legal lawyer’. The low visibility of issues of justice conception of lawyer as hero, bent on career with political goals – and here it and the role of lawyers in furthering justice seeking justice and helping those in need. should be remembered that the legal services or indeed injustice imparts a subconscious It is clear then that left-leaning academics landscape is never static – there will always message about their lack of importance. need to ensure that issues of justice and be a need for new generations of lawyers Moreover, this separation of law and justice, access to legal services are raised whenever with a social conscience and hence a role for and the relegation of the latter to ‘soft’, and relevant, and especially in classes which academics in helping to produce them. In often optional, subjects like jurisprudence is prima facie do not lend themselves to such

14 Socialist Lawyer October 2011 discussion or which traditionally have been injustice and the need for pro bono services. Also important to reflection on career taught in ways which hermetically seal them Compared to those students without Law choice were the role models provided by the from issues of politics, morality and justice. Clinic experience they seemed far less academics and practitioners involved in the However, unless such issues are linked to complacent about the supposed justice of the Clinic. Thus one of the practitioners who career choice, there is a danger that they are current legal status quo. works as a legal aid lawyer and has seen as appropriate for pursuit only by More reliable, however, are the comments established an environmental law centre academics or those who turn their backs on made by students in weekly dairies kept for a showed one student that she ‘can work in legal careers. Consequently, left-leaning class for clinic students. This is because they private practice and still achieve her ultimate academics need to ensure that they also were not responding to specific questions, aim of helping others’, whereas another highlight the positive role that progressive but chose the topic for discussion themselves declared that she had acted as ‘a positive role lawyers have played throughout history and in writing a weekly dairy for the class in model to students’ and been ‘inspirational to that the opportunities for combining a legal which they were required to reflect on their me for my own career’. And lest it be career with a desire to ensure justice are ongoing clinic experiences. Analysis of the thought that the above comments were publicised and valorised, through, for diaries of around 50 students, reveal that merely cheap talk or even cynically designed example, having representatives to speak to they were frequently stimulated to reflect on to curry favour with academic staff, their students and at law fairs. One of the biggest their personal values and ethics, and how authors have all gone on to match words challenges for academics and indeed they might play out in practice, with many with deeds. Indeed, one now works with a practitioners on the left is to explode the admitting to not having previously major pro bono organisation and another idea that the ‘best’ law graduates go into the considered their motivating moral values and has just been appointed to the access to most highly paid jobs and the rest do legal even the justice of the legal system. Many justice committee of one of the professional aid, law centre and high-street work. reflected on and were influenced in their bodies despite only just qualifying. However, it is generally recognised by attitudes to career choice, and some were For those involved in running student educational experts that the most promising prompted to question and even change their Law Clinics there is little need to wait for the way to reinforce if not engender pro-social decision to join a commercial law firm or to sort of statistical evidence of the impact of a attitudes in law students is through university confirm their desire to help those in need Law Clinic on student attitudes that will law clinics. Helping flesh and blood clients once qualified. make the case unanswerable – if indeed that imparts an immediacy and provokes an Feelings of satisfaction at helping others is possible. My recent study shows that a engagement with issues of justice which were especially important in encouraging sizeable group of students commence their didactic and even interactive forms of students to think about pursuing careers in studies with a desire to help others and make teaching like tutorials and seminars cannot which they could help others. One stated a difference to society. Law clinicians are replicate. Where learning experiences are that by exposing her ‘to the wide variety of sure that clinics can have a positive impact in realistic, and relate to the fulfilment of future options other than commercial law’ the Law helping to maintain such commitments social roles, educationalists argue that Clinic helped her to discover a ‘social notwithstanding legal education’s current learning is more profound. Engaging with conscience’ She went on: ‘I didn’t start my hidden curriculum. And where, like the actual clients, particularly on an emotional law degree to “make a difference”, my goal Strathclyde Law Clinic, the needs of clients level, may evoke feelings of empathy which was simply to earn enough money so I can and the community take precedence over are so important to the development or afford some of life’s luxuries and have no educational goals and where, because clinic reinforcement of a commitment to justice. financial troubles. However, having seen the involvement is wholly or primarily voluntary Moreover, feelings of satisfaction at helping positive effect my time and effort has had on in nature, it lasts longer than the time taken clients may, as with my experience as a clients… now my ultimate goal is to find a to gain credit for a clinical class. I am also student during apartheid South Africa, instil a job that provides both financial security and convinced that Law Clinic experience can life-long desire to use one’s skills to make a a chance to help communities or less even help persuade some without such an difference. Pro bono is addictive as many fortunate individuals.’ Similarly, another initial predisposition to develop the desire to find! admitted that before his Law Clinic use their skills and privileges to the benefit Law clinics have other advantages. experience he imagined a career in a large for those most in need and for society as a Because of their perceived expertise, clinic law firm and ‘hadn’t really considered the whole rather than those who can afford the supervisors may function as influential larger ideal of social justice.... Now I find it fees of City lawyers and top QCs. While moral exemplars, modelling an altruistic impossible not to.’ resources prevent all law students commitment to the community. Finally, undergoing such an experience, it is clinics reveal the extent of unmet legal need, probably better that the 50 or so who join and social and legal injustice, that legal the Clinic every year and who may remain practice can involve helping others, and that members for up to five years gain an this can be rewarding as well as intellectually intensive and lengthy ‘apprenticeship in challenging. altruism’ than all law students, including Thus far evidence of this predicted ‘clinic those with no inclination other than to effect’ has been confined to anecdotal pursue their own self-interest, have a brief reports. More recently, however, I have and probably patchy exposure to the sort of begun to uncover more convincing experiences which if longer and more supporting evidence. Thus a recent survey of complete will have a positive impact on less second year University of Strathclyde cynical students. students revealed that their experience of “Helping flesh and taking on cases had led many Law Clinic Donald Nicolson is a professor at the members to become more sceptical about blood clients imparts an University of Strathclyde, founding Director of law’s justice and fairness, and current levels immediacy and pro- the University of Strathclyde Law Clinic and of access to legal service, though also more erstwhile founding Director of the University of convinced about its value in redressing vokes an engagement Bristol Law Clinic with issues of justice which even interactive forms of teaching like tutorials and seminars cannot replicate” Socialist Lawyer October 2011 15 A look in the mirror England riots 2011

ritain’s riots this summer presented as a by Camila surprise to the general public. However, for those of us working at street level it was simply Batmanghelidjh a moment where the ongoing rot endured by vulnerable inner city communities was made visible. David Cameron rightly responded robustly, achieving calm. Between the Bpoliticians and the media a consensus emerged describing the riots as manifestations of public greed. Those who stole plasma TVs and trainers were paraded for humiliation. Any suggestions of a class divide were eroded by ensuring that the millionaire’s daughter, the teacher and the hoodie were equally sanctioned and ridiculed. The riots, as manifestations of consumerism gone mad, were paradoxically reassuring. Everyone can imagine their desire being potentially out of control, so those who were not involved assumed a moral high ground, legitimately chattering about the immorality of “The erosion of those involved. Privately, the politicians know that the riots have a more humanity always sinister genesis. It is acknowledged that they were led by criminal groups which attracted into the momentum other begins with the participants. powerful and is Fundamentally there were three groups involved. The initiators, whose criminality and rage had reached the reflected back by extreme. They don’t care what happens to them and they have enough fury to shatter windows and set buildings the powerless” alight. The imitators, predominantly young teenagers, followed the initiators partly in admiration and partly in fear. Once the rage among these two groups was evacuated the opportunists followed taking goods including a vast amount of food, nappies and children’s clothes. Just as much food was stolen as expensive goods but the media played down the theft of food because suddenly ‘greedy risked looking like needy’. It’s not about blaming any one political party. Labour did a great deal to support vulnerable children but they left out the most high-risk because they cost too much and their problems are entrenched. When the Coalition came into power the teenagers were telling me ‘the Government hates us, Camila’, because all they could hear was narratives of sanctions, withdrawal of benefits, descriptions of them as lazy scroungers who need to be knocked into shape. It felt as

16 Socialist Lawyer October 2011 Pictures: Jess Hurd / reportdigital.co.uk Jess Hurd Pictures:

if Downing Street had nothing positive to offer young people. using security guards, immune to her crying. It’s the housing This is in the context of nearly one million young people office leaving the family in a flat where damp has created a being unemployed. gaping hole in the floor and children have to walk around it In the meantime, the risk levels in the ghettos of Britain for fear of falling through. It’s the GP receptionist who tersely have been escalating. Repeated surveys carried out and turns the patient away and doesn’t bother to notice that years suppressed capture fear among children and young people. of dirt have accumulated on the broken toys in the waiting Children are describing horrific levels of violence in their area. It’s the police who are too overwhelmed and give you a neighbourhoods with drug dealers and gangs running the crime reference number when you’ve been robbed and the estate. Shootings and stabbings have become a perverse norm thief has defecated on your bedroom floor. It’s the asylum with young boys feeling that they have no choice but to carry centre where human beings are lined up like cattle ready for a weapon and young girls giving in to sexual assault because deportation. It’s MPs and their expenses scandal. It’s fighting could potentially risk their lives. Human life has humanitarian invasion of other countries disguising an become so cheap that as part of gang initiations kids are appetite for their oil. It’s powerful manufacturing industries forced to torture and abuse others in order for over using steamy ghetto kids to advertise their products and then familiarity with violence to become a norm. The police are making the products too expensive for them to buy with paralysed as they cannot get the witnesses to give evidence. benefits of £42.50 a week. It’s sitting in the dark when you Privately, a Borough Commander explained ‘there is a new don’t have enough money to top up the gas and the electric kind of kid on the block. He shoots and doesn’t even bother meter. It’s Christmas time when you’re guaranteed to be alone to run away. I’ve told my officers not to run into incidents in your dangerous hostel when the plasma TVs do family anymore. Years ago we could rely on them running away. gatherings and the latest toys. Really, it’s about shame, about Now they have a firearm and they don’t care.’ feeling so profoundly trashed that those who don’t help are Ask yourself what have we done that such large numbers excused as you believe yourself to be unworthy of their care. of children and young people are presenting with greater With the personal notion of worthlessness comes the capacity to cause harm. How sad that they turn to the very logical conclusion that other human beings must be equally drug dealers they’re terrified of for protection and sustenance, disposable. Human life need not be cherished. It becomes so perceiving social care agencies to be cold and ineffectual. much easier to stab, kill, sexually assault, burn property, and Simply describing the problem as manifestations of mass steal from a fellow human being as life is deemed worthless. criminality misses the point. 1.5 million children are being maltreated in Britain. We rank Violence is a public health problem. It spreads like a virus bottom of 21 wealthiest countries in the world for the as victims aspire one day to have the potency of the wellbeing of children. Why? While Governments throw the perpetrator. Among the disenfranchised the capacity to cause searchlight onto problem families, it would do well to harm acquires a high status with young people vying for scrutinise its own decision making process. The erosion of elevated personal credit rating by enhancing their quota of humanity always begins with the powerful and is reflected violence. Just as middle class Britain preoccupies itself with back by the powerless. The riots of the summer were an designer handbags and cosmetic surgery, ghetto Britain seeks opportunity for Britain to look in the mirror without image credit rating through harming others. It’s savage, while the management. Truth hurts but it’s a prerequisite for perversion can be easily identified in those causing visible reparation. I hope our decision makers will have the moral harm; the genesis of it is more hidden. It begins paradoxically courage to do the right thing and find ways to reintegrate with the decisions made by civil society. those who have nothing left to lose rather than suppress the Sinisterly, our young people are getting the message that message the riots unveiled. Britain’s crying out for it. human life is not worthwhile. The messenger is the social work department who turns away their pleading mother Camila Batmanghelidjh is the Chief Executive of Kids Company.

Socialist Lawyer October 2011 17 Picture: Jess Hurd / reportdigital.co.uk Jess Hurd Picture:

18 Socialist Lawyer October 2011 Socialist Lawyer interview MICHAEL GOOLD speaks to Unite general secretary LEN McCLUSKEY. Pictures by Jess Hurd

‘Students were out on the streets while trade union leaders were still huffing and puffing...’

What made you want to become a Then in 1989/1990 I was asked to apply for union man in the first place? a national officer’s job and I came down here to I come from Liverpool which is a very trade London. Ultimately as we moved into merger union-oriented city and I went to work on the with Amicus to create Unite I was made an docks there after leaving college in 1968. The Assistant General Secretary and then last year I day I started work on the docks I became a ran for the General Secretary-ship, again with member of the Transport and General Workers the support of the left as I’ve never gone for any Union. I intended to leave to go to Birmingham position in the union unless it had the backing shortly after, to train as a teacher, but I liked the of the left group in the union to which I docks and I got caught up with the whole belonged. essence of what was happening down there. I The way you describe it, it sounds like became a shop steward a year later at the age of / reportdigital.co.uk Jess Hurd Picture: one thing just led to another. Were 19 and it just went on from there really. there ever times in previous years Through the seventies I sat on a number of when you had your eye on the General committees in the Transport and General Secretary spot? Workers Union until in 1979 I was asked did I It’s interesting that you should say that, one want to become a full-time officer. Thatcher thing leading to another, because that’s exactly got elected soon after and the devastation of how it was. I’ve never had any ambition to Thatcherism, especially on Merseyside where I hold any particular office other than shop was based, was incredibly acute and very LEN McCLUSKEY was elected on 21st steward – they were the happiest years. traumatic. Right through the eighties there was November 2010 as General Secretary of the union Everything just flowed from there. an almost kind of political maelstrom that I Unite. He has been a trade unionist since 1968, I worked closely with Tony Woodley when was involved in. I’ve always been political on when he was a dock worker in Liverpool. He he was General Secretary of the T&G, the left from my early days, so throughout all became a shop steward aged 19 and was a developing our vision of the left within the this period I was actively involved in left campaign organiser for the TGWU in Merseyside during the 1980s after becoming an officer of the union, but I never set out to complete this politics, both internally in the union and career structure. It just simply happened. union in 1979. s externally. What would you say in response to

Socialist Lawyer October 2011 19 s what we often hear from Government members, and also from some sectors in the public, that unions are outdated and not relevant today? Trade unions are as relevant today as they have ever been. Of course the media and ruling elite would try to create a different image as they see organised labour as the only real obstacle stopping them running the nation the way they really want. When Thatcher embarked on her philosophy, which was effectively to destroy

communities and conduct criminal sabotage of / reportdigital.co.uk Jess Hurd Picture: our manufacturing base, she knew that the only people who could get in her way were the trade unions and that’s why she set out to kerb their power. I think exactly the same is the case now. You’ll note that there are a few backbenchers on the Tory side that are now raising the whole question about shop stewards’ facilities. The reason they have is that they know that as we go through this financial crisis, where working people are being asked to pay the price for their greed, the only people that will speak up against are the trade unions. I think these attacks are the simple answer to your question, ‘are we relevant today?’ Well yes we are, because if we weren’t then they wouldn’t be attacking us. But as trade unions we’ve got to make ourselves more relevant to what’s happening in people’s lives now. Back in November, 60,000 students were out on the streets of London while trade union leaders were still huffing and puffing in a room about what we should be doing. So we’ve got to keep up with the times. What’s the point in trade unions if we can’t stand up and defend our members’ jobs and living conditions and communities when we’re faced with this type of vicious attack? You’ve mentioned the destruction of Thatcherism. How do you think the cuts agenda of the current Government compares to the Thatcher years? about economic growth which then deals with Well, it’s similar. The current Government are “We have to put the deficit that we do have. Once ordinary, embarked on an ideological attack that, in a forward an alternative. working people realise that, ‘hang on we’ve way, even Thatcher couldn’t have been sold lies here, there is an alternative’ then contemplated. They’re using the financial crisis You can’t just say no to that’s when that anger and that frustration and to make people afraid and push that horrible, that disillusionment that exists out there can be sinister Thatcher mantra of ‘there is no cuts. We’ve got to channelled in a way to bring about either a alternative’. They are pushing it again because change in direction of this Government or even they see opportunities to dismantle the NHS, expose the lies that are a change of Government. attack comprehensive education and attack the Does it surprise you how successful the welfare state. These are fundamental attacks being peddled by this Government’s argument that these on the fabric and architecture of our society Government” cuts are necessary has been and that which has stood us in good stead for sixty-odd there hasn’t been more of a reaction years. from working people? What role do you think that the labour It doesn’t surprise me at all, because every movement and unions specifically will single newspaper every single day has been play in fighting the cuts? selling people this mantra that ‘there is no We have to put forward an alternative. You alternative’. Even Labour is arguing that the can’t just say no to cuts. We’ve got to expose cuts are necessary; they just say that the Tory the lies that are being peddled by this Government is cutting too deep, too fast. What Government. The Government would have does surprise me is that the argument hasn’t everyone believe that we’re in such a dire been more successful. I think that initial straight that no one should be sleeping each opinion polls had about 60 per cent of people night, whereas in actual fact servicing the debt agreeing there did need to be cuts. Given the is lower than at any time between 1945 and media position, I was surprised that it was so 1997. low. Interestingly enough those opinion polls We’ve got to explain to people that there is are starting to move and it’s up to us to get an alternative. Instead of killing communities across the message that there is an alternative. we should be investing in them, putting people We’re battling against a media world that is ahead of profit and making certain that utterly and totally dominated by the right investment in our manufacturing base brings wing, so the trade unions have a serious task in

20 Socialist Lawyer October 2011 Where do you think this momentum is leading? The possibility of a general strike seems to be being discussed seriously. Well, the TUC have been discussing coordinated strike action as opposed to the sloganising of a general strike. As a lawyer you will know that the legalities of that are very complex and difficult. The TUC are attempting to control and coordinate a way forward with different unions that have different histories and different natures of members. The prospect of coordinated industrial action, in particular in the public services, is very realistic, but the idea of that extending to a general strike doesn’t look likely at the moment. Although we’re moving into uncharted waters so you can’t rule anything out. These are extraordinary times and sometimes you must take extraordinary action. You mentioned earlier the student demonstrations. Does Unite plan to work with students and other organisations that are fighting the cuts in other ways? Absolutely, in fact we already are. UK Uncut is a fantastic organisation. We’ve met them on many occasions now, trying to figure out how we can assist each other. The students have been fabulous and of course we want to work with them. But in terms of the cuts there needs to be a coalition of resistance. We need to bring together student organisations and all kinds of community organisations to form this coalition of resistance against the Government. The history of our labour movement, the history of the world even, tells you that when working people come together anything is possible. You’ve only got to look at what’s happening all over the Middle East at the moment; people power bringing down tyrants. So that’s what we have got to do: build that coalition of resistance and make it so that people are confident and getting that message across but I think we’re affect people in a way that I believe will create from that confidence comes the power to change. doing that. more anger and who knows how that will In a speech you made following the In relation to the recent riots, much of the manifest itself. student demonstrations, you said that national media has adopted the Government’s I think the left and trade unions have got to ‘the police can keep their sleazy hands ‘pure criminality’ argument. Do you think identify with that community spirit again and off our kids’. What made you say that? that’s also why that has been largely supported give people a voice because if they don’t have a Well, exactly what I had seen. The usage of by the public at large? voice anything can happen. That’s why Unite is kettling and the tactics the police used against Well here’s where the left is always in danger starting a community membership. For 50p a our young people who had come out onto the of losing the feel of ordinary people. Ordinary week anyone without a job; students, retired streets to exercise the oldest form of working people were appalled by the violence. people, the unemployed, can now join Unite democracy: coming out on to the streets to The idea that people were scared to go out and we’ll have community branches right protest. My remarks were not made off the onto the streets, and that small businesses that throughout the UK and Ireland. We want to be cuff. I wanted to spark a response and my serviced the community were destroyed, is the voice of the community as well as workers. message was clear. If our young people want to something that is alien to the values of On 30th June 2011 we had the biggest come out onto the streets then the streets community which are best illustrated in the mass strikes in the UK for decades. Do belong to them. I wasn’t having any sleazy working class. So I have no truck whatsoever you think they were a success? Metropolitan Police chiefs and their ilk, who for the rioters or their apologists on the liberal They were undoubtedly a success, because of represent the establishment and elite, misusing left. course it captured the headlines and raised the their power and thinking they could do what Where I absolutely disagree with the consciousness of ordinary workers and their they like to young people. I think it was a Chief Government is their response that this can confidence. PCS workers, all the teachers’ Constable in Manchester recently who was simply be put down to criminality because it unions that were involved, all of them will have complaining about the cost of policing a can’t. It illustrates alienation, especially had their confidence boosted by that enormous demonstration and even questioned whether or amongst young people within our inner cities, collective action. Of course it doesn’t make the not people should have the right to from those that govern them. That alienation is Government suddenly change its mind – it demonstrate! That was really what was at the something that is extremely toxic and doesn’t work like that – but it did very core of what I was saying. This is our right, this dangerous and if you don’t deal with it in then successfully highlight the anger felt by those is our kids’ right, and I was letting it be known there’s no doubt that there will be riots again. workers and it was a shot across the bows. It that organised labour had a strong eye on The truth is that the riots were not necessarily continued the momentum after the magnificent anything that the police and security services the result of cuts as the cuts haven’t really March for the Alternative on 26th March this were up to. So yeah, I wanted to side with started to bite deeply, but they will. This time year and I’ve no doubt that there will be other young people. Believe it or not I remember next year the cuts in communities will begin to strikes and disputes as we go forward. being young myself once.

Socialist Lawyer October 2011 21 The cases of Al- Skeini and Al-Jedda

On 7th July 2011 the Grand Chamber of the European Court of Human Rights (ECtHR) handed down judgments in the cases of Al- Skeini and Al-Jedda, over seven and six years respectively since they were issued at the High Court in London. It was worth the wait. Together, the near-unanimous judgments represent a fundamental and irreversible exertion of human rights protections in wartime. In Iraq, it was a war that cost the lives and well-being of hundreds of thousands of Iraqis, and the lives of 179 British soldiers.

by Daniel Carey and Phil Shiner

22 Socialist Lawyer October 2011 The Accountability Vacuum The conduct of military hostilities and occupation was regu- lated by international treaties long before modern human rights conventions. Those treaties have done much to curb the worst excesses of war. Common Article 3 of the four Geneva Conventions prohibits ‘violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture…outrages upon personal dignity, in particular humiliating and degrading treatment’. Article 31 of Geneva Convention IV goes even further in an interrogation context, prohibiting even ‘physical and moral coercion’. In doing so, it arguably goes beyond even the protections afforded by of the European Convention on Human Rights (ECHR). But, and it is a big ‘but’, there is no court to which victims of breaches of International Humanitarian Law (IHL) may turn. Outside the criminal law context, only those principles of IHL which can be said to have attained the status of cus- tomary international law may be relied upon in domestic courts. The International Committee of the Red Cross po- lices the conventions, but its inter-governmental reports re- main confidential to the perpetrators themselves. In Iraq, it was only when a single Red Cross report was leaked in May 2004 that breaches of IHL by UK and US forces were ex- posed to public scrutiny. In the absence of human rights law, all that remains is criminal sanction against individual perpetrators. Whilst the International Criminal Court has yet to initiate an investiga- tion, still less a prosecution, against any actors from a ‘West- ern’ state, British soldiers may be prosecuted in the UK un- der the Geneva Conventions Act 1957 and International Criminal Court Act 2001. However, such prosecutions have been few and far between. They are reliant upon internal in- vestigations and prosecutions by military personnel. And even a successful prosecution falls far short of achieving Governmental accountability or the positive assertion of rights. Indeed, criminal investigations often actively suppress evidence of responsibility in the upper echelons of military and civil power in their quest to demonstrate that those re- sponsible – usually the lowest ranking soldiers – acted with- out authorisation. One need look no further than the Baha Mousa court martial, which collapsed in 2007 when the prosecution was forced to acknowledge that senior officers had authorised the hooding, stressing and food and water deprivation of prisoners as an aid to interrogation.

The Search for Accountability Baha Mousa’s father was one of the six claimants in Al- Skeini. Baha died on 15th September 2003 in a Temporary Detention Facility (TDF) in Basra as a result of the mistreat- ment that he received. He had 93 separate injuries. That these facts are by now well known is a testament to the val- ue of the human rights-focused public inquiry into his death that was obtained as a result of Al-Skeini. In Al-Skeini, the domestic courts unanimously found that Human Rights Act jurisdiction extended to the military detention facility in which Baha Mousa was held. As a re- sult, the UK was under a duty to carry out an effective, in- dependent and public investigation into his death under Ar- ticle 2 ECHR. Lord Bingham summarised the benefits of such investigations in the House of Lords in Amin: ‘to ensure so far as possible that the full facts are s

Parliament Square installation by anti-war artist David Gentleman, March 2006. Each drop of blood represented the estimated 100,000 lives lost in Iraq until then.

Socialist Lawyer October 2011 23 The cases of Al-Skeini and Al-Jedda s brought to light, that culpable and discreditable conduct The question of extra-territorial jurisdiction was even is exposed and brought to public notice, that suspicion of more vexed. Relying upon the decision of the ECtHR deliberate wrongdoing if unjustified is allayed, that danger- Grand Chamber in Bankovic – a case concerning aerial ous practices and procedures are rectified, and that those bombing in the former Yugoslavia – the UK Government who have lost their relative may at least have the satisfac- claimed that the ECHR was confined to the espace ju- tion of knowing that lessons learned from his death may ridique of the Council of Europe States; that jurisdiction save the lives of others.’ should only extend to fill a ‘vacuum’ within that juridical Daoud Mousa, Baha’s father, now has the benefit of area; that rights cannot extend unless the State in question such an investigation. But Baha Mousa’s death was not the is in a position to secure all convention rights and that only death in British custody in Iraq. In fact, the Baha therefore jurisdiction should be confined to military prisons Mousa Inquiry heard evidence that at least eight other only. In the Court of Appeal, Lord Justice Sedley described deaths in custody had occurred in the first two months Bankovic as a ‘road-block’. The domestic courts were un- since the commencement of hostilities. And beyond the willing to move Human Rights Act jurisdiction outside mil- gates of British detention facilities, hundreds of Iraqi civil- itary prisons. All six claimants applied to Strasbourg fol- ians had been killed or mistreated at the hands of British lowing the House of Lords decision in 2007. troops under cover of complete and impenetrable impunity. The Grand Chamber’s treatment of extra-territorial juris- The other five claimants in Al-Skeini were representative of diction of the ECHR in Al-Skeini has demolished both their plight. Hazim Al-Skeini was shot dead by British Bankovic and the reasoning of the House of Lords. It found troops along with his friend at a funeral ceremony. Al-Skei- that all six claims in Al-Skeini were within the UK’s jurisdic- ni was the first case that sought to extend accountability to tion, confirming two different circumstances where there will these victims. be ECHR jurisdiction anywhere in the world. Firstly, in the Al-Jedda concerned the unlawful detention of a British ‘State agent authority’ scenario where State agents exercise citizen in Iraq, held for over three years in British military authority and control over an individual wherever they may prisons without criminal charge. Those who think that be. Secondly, when a State has effective control of an area ‘as there could never be a British Guantánamo have over- a consequence of lawful or unlawful military action’. Thus, looked that in Mr Al-Jedda’s case, it has already happened. as the UK had been exercising ‘public powers’ and/or been Here was a British citizen, held incommunicado overseas by ‘engaged in security operations’ and had caused deaths, or the British military, interrogated at length by British intelli- indeed ill-treatment, then there was a ‘jurisdictional link’ be- gence services about matters of domestic security, and pre- tween the UK and the deceased. The fact that it was formally vented by the UK Government from asserting his entitle- in occupation no doubt weighed heavily, but it was not de- ment to due process. terminative – wherever foreign armies invade, they must now be presumed to take their human rights ‘values’ with them. The UK Government’s Response The response of the Government to both cases was one Reflections with current resonance: to withhold the Human Rights While the tone had been set by Public Interest Lawyers’ EC- Act’s protections from the very persons most in need of tHR victory in Al-Saadoon in 2010, the comprehensive and them. It erected a series of ‘deflection arguments’ to avoid far reaching implications of the two Grand Chamber judg- accountability: (i) extra-territorial jurisdiction under Article ments cannot be overstated. On the basis of Al-Skeini and 1 ECHR; (ii) the conflict between the power to intern under Al-Jedda, the thousands of victims of British human rights UN Security Council resolutions and the right to liberty un- breaches in Iraq now have recourse to effective reparation. der Article 5 ECHR; and (iii) the issue of attributability. The core of these cases was bringing into judicial account- ability the actions of the British armed forces. They exposed The Grand Chamber Judgments a very ugly truth, that though it may pay lip service to hu- The question of attributability – the argument that the ac- man rights values, our Government was prepared to fight tions of UN-mandated troops should be attributable only tooth and nail, to contort itself into ever more bizarre argu- to the UN – arose from the European Convention on Hu- ments, in order to prevent the extension of those protec- man Rights (ECHR) case of Behrami concerning the ac- tions to the victims which it had created, even, in the case tions of UN forces in Kosovo. The Ministry of Defence’s of Smith, to its own soldiers. If human rights are to truly (MoD) attempts to extend the principle to British troops in matter, then they must protect persons when they are at Iraq were dismissed domestically and have now been re- their most vulnerable. The Concurring Opinion of Judge soundingly rejected by the Grand Chamber. We hope that Bonello in Al-Skeini, who retired after giving this judgment, Government lawyers will never have the cheek to raise is the most stirring piece of judicial reasoning we have ever them again. read. It is worth leaving the last word to him: In contrast, the MoD’s argument that a UN authorisation ‘Jurisdiction flows not only from the exercise of democ- to intern trumped the right to liberty under Article 5 ECHR ratic governance, not only from ruthless tyranny, not only was accepted by all of the domestic courts. It is only now in from colonial usurpation. It also hangs from the mouth of a the Grand Chamber judgment in Al-Jedda that much-need- firearm... It ill behoves a State that imposed its military im- ed clarity has been given to this issue. The ECtHR has gone perialism over another sovereign State without the frailest as far as it can in asserting the pre-eminence of human rights imprimatur from the international community, to resent the law even over the competing norm of UN Security Council charge of having exported human rights imperialism to the (UNSC) resolutions. It ‘read down’ the Security Council res- vanquished enemy. ...For my part, I believe that those who olution in question, applying a principle of construction that export war ought to see to the parallel export of guarantees UNSC resolutions should, where possible, be read to comply against the atrocities of war. And then, if necessary, bear with human rights law. Accordingly, there was no conflict, with some fortitude the opprobrium of being labelled hu- and Mr Al-Jedda should have been afforded his rights under man rights imperialists.’ Article 5 ECHR. In reaching this conclusion, the ECtHR has fashioned an important manner of exerting a human rights Daniel Carey and Phil Shiner are Solicitors at Public Interest review of UN Security Council resolutions. Lawyers

24 Socialist Lawyer October 2011 Haldane Society of Socialist Lawyers

Human-2012 2011 Rights Tuesday 8 November 6.30pm: Lectures Sir Geoffrey Bindman QC: All lectures at the College of “Unrepentish leftish lawyer” Law 14 Store Street, London followed by the Haldane Society AGM WC1. Free admission. £10 charge to practitioners Tuesday 6 December 6.30pm: requiring CPD points “Guilt by Association” Tuesday 17 January 2012 6.30pm: “Extradition and Human Rights” Tuesday 7 February 2012 6.30pm: “Lawyers going the extra mile” Wednesday 14 March 2012 6.30pm “Right to privacy and freedom of expression” Further information from www.haldane.org JointheHaldane Society of Socialist Lawyers n I would like to join/renew my membership of the Haldane Society Rate (tick which one applies): n Students/pupils/unwaged/trade union branches/trades councils: £20 n Practising barristers/solicitors/other employed: £50 n Senior lawyers (15 years post-qualification): £80 n Trade unions/libraries/commercial organisations: £100

Please cancel all previous standing orders Name (caps) ...... StandingOrder to the Haldane Society of Socialist Lawyers Address ...... Please transfer from my account no: ...... Name of Bank ...... Sort code nn/nn/nn ...... Address (of branch) ...... To the credit of: Haldane Society of Socialist Lawyers, Account No 29214008, National Girobank, Bootle, ...... Merseyside G1R 0AA (sorting code 72 00 05) The sum of £...... now and thereafter on the same date each month/year* until cancelled Postcode ...... by me in writing (delete where applicable) Email ...... Signed ...... Date...... Please send this form to: Membership Secretary, Haldane Society, PO Box 64195, London WC1A 9FD Jon Robins reports on The Family Drug and Alcohol Court FDAC: ground- breaking Court

couple of years ago I spent a finding new homes for vulnerable children day at the groundbreaking more speedily than through conventional Family Drug and Alcohol care proceedings. According to the Court (FDAC) with District evaluation, over one third (39 per cent) of Judge Nick Crichton, the mothers coming before the Family Drug and pioneering judge who Alcohol Court were reunited with their kids lobbied for the creation of a compared to just over one in five (21 per cent) ACourt that would be a radical attempt to break in ordinary care proceedings. with, in his words, ‘the intergenerational cycle’ The FDAC pilot scheme is co-funded by of self-destructive behavior. the Department of Education, Ministry of The judge offered a memorable but bleak Justice, Home Office, and Department of view from the bench as to the failure of the Health as well as three London local ordinary Courts to deal with drug addicted and authorities – Camden, Islington and alcoholic parents. ‘We are sometimes Westminster. It works with parents, social removing the fourth or fifth child and workers and rehabilitation staff to combat sometimes the seventh or eighth child from the addictions and, if possible, keep families same mother for exactly the same reasons,’ he together. The same judge presides told me. ‘Nothing changes and nothing has throughout the life of a case and mothers are been done to help them achieve change’. required to reappear before the Court on a Drink or drug problems represent a regular basis. significant factor in up to two-thirds of care What is so different about his Court? Crichton cases. The idea behind the FDAC pilot was draws an analogy with Weight Watchers: ‘If you recognition of the failure to address addiction know you have to come back every two weeks through ordinary care proceedings. The new and answer for the last two weeks to the same Court set out to deal with the lack of co- person, there is an enormous incentive to stay ordination between adult and children’s on track – particularly if everyone who is around services; late intervention to protect children; delay in reaching decisions; and the soaring cost of proceedings. A new approach Crichton referred to one psychiatric report where the mother said ‘every time they The Family Drug and Alcohol Court remove a child the only way that I can deal (FDAC) is a new approach to care with the pain of the loss is to get pregnant proceedings in cases where there are again’. ‘I’ve had women scream at me across the Court: “If you take this one away from me significant drink or drugs problems. I’ll go on having children until you let me keep The pilot began in January 2008 and one”,’ he said. runs until March next year. Research by Brunel University published earlier in this year (see below) revealed that It is funded by the Department for this groundbreaking Court is making a real Education, the Ministry of Justice, difference in keeping troubled families the Home Office, the Department of together and, where that’s not possible, Health and three London authorities – Camden, Islington and Westminster. It is the first Court in England and Wales to take a problem-solving approach to care proceedings. The Court is supported by a multi-disciplinary team of practitioners provided by a partnership between the Tavistock Portman NHS Foundation Trust and the children’s charity, Coram.

26 Socialist Lawyer October 2011 Findings The Brunel University study followed all cases, 55 families with 77 children, entering FDAC in its first 18 months and compared them with ordinary care cases involving parental substance misuse heard during the same period – 31 families, with 49 children. It was possible within the research timescales to follow 60 cases, 41 FDAC, 19 comparison, in relation to the final order. • Of the 41 FDAC mothers 48 per you is interested in what you do and want you to cent (19) were no longer misusing succeed. It puts a smile on your face to come back and stand on the scales and say “I’ve lost substances by that time – compared another three pounds or I’ve stayed clean for to 39 per cent (7 of 19 mothers) in another 14 days”.’ the non-FDAC group. In relation to The research reported that it took on average eight weeks longer for children fathers, 36 per cent of FDAC fathers coming through FDAC to be reunited with their (8 of 23) were no longer misusing parents. The researchers called this a substances - no comparison father ‘purposeful delay’, allowing families to get stopped misusing. derailed lives back on track. It’s also significant to note that it took on average seven weeks • Of the 41 FDAC mothers, 39 per less for FDAC children to be placed in a cent (16) were reunited with their permanent alternative home (51 compared to children by the final Court order, as 58 weeks) when things don’t work out. FDAC has funding for another year. There opposed to 21 per cent (4 of the 19 has to be a question mark over its future mothers) in the comparison group. under a coalition government that has • FDAC parents accessed substance already announced a sweeping court closure programme. The Nuffield researchers weren’t misuse services quicker, received a asked to conduct a cost benefit analysis of broader range of services in the first FDAC identifying costs savings to the six months, and were more taxpayer further down the line (foster care, successful at staying in treatment. court and care proceedings, rehab etc) but such savings must flow. They did find that the • The average length of cases was average cost of an FDAC case was £8,740. If the same. The FDAC cases where ministers do turn their gaze to FDAC, there parents and children stayed together needs to be some consideration of both those savings as well as the human misery at final order took about eight spared by effectively dealing with addiction weeks longer than similar cases in and keeping kids within their families where the comparison sample. The possible. To read the full results of the Brunel researchers called this ‘purposeful University report go to www.brunel.ac.uk/ delay’, to help consolidate recovery research/centres/iccfyr/fdac and safe parenting. • It took on average seven weeks Jon Robins is a journalist who writes widely on access to justice. His work was recognised less for children to be placed in a earlier this year when he won the top award for permanent alternative family when Outstanding Achievement at the Legal Aid parents could not control their Lawyer of the Year awards. He runs the website substance misuse. www.thejusticegap.com • The average cost of the FDAC team per family is £8,740 over the life of the case. • FDAC reduced costs in other ways: through shorter care placements (£4,000 per child less); shorter Court hearings and less need for legal representatives at hearings, saving local authorities £682 per family; and fewer contested cases.

Socialist Lawyer October 2011 27 One year after the election of a new president, Victor Figueroa evaluates SAME AS THE

resident Juan Manuel Santos took according to the victims’ organisation President Juan Manuel power in Colombia last August MOVICE, the law does not recognise Santos: has he been any promising far-reaching changes. the State’s role in many abuses yet different to ex- He promised a Government of ‘State crimes were not isolated actions president Alvaro Uribe? national unity, one that could or the responsibility of a few rotten overcome poverty, inequality and apples in State institutions, rather Pviolence. The rhetorical difference with his they were part of a systematic predecessor Alvaro Uribe was stark – critics strategy of extermination, designed such as trade unionists and human rights and executed at the highest level.’ defenders went from being accused of Furthermore, the law does not terrorism to being described as partners in a provide any mechanism to ensure healthy democracy. Sterile confrontation justice for victims – the Victims’ law would be left behind and a new Colombia recognises victimhood, but not the would be built, in democracy and prosperity. existence of perpetrators. It is thus a half This stoked expectations both at home and measure, the essence of which is to act as a abroad that Colombia would now take the smokescreen and perpetrate the myth that path of dialogue and a constructive approach the State is a helpless bystander to the to resolving its chronic social, political and abuses. economic problems. One of President Santos’ most lauded reforms was the Land and Victims’ Law, which ostensibly allowed for the return of stolen lands to peasants and provided restitution for victims. However, victims’ groups have serious criticisms of the law, which was drawn up without their participation, noting that it recognises some as victims yet arbitrarily excludes others. Victims’ organisations have also been critical of how the law allows for stolen land to be retained by current occupiers if it is judged to be of local economic interest. Since much stolen land is now used by large plantations or mining concerns it is unlikely that these will be returned. They have also criticised the failure to include any enforcement or protection mechanism in the law, in effect meaning that victims will have to risk their lives in order to seek restitution. Since 2005 more than 40 displaced persons’ leaders have been assassinated, five of them since Santos came to power. Furthermore,

28 Socialist Lawyer October 2011 whether Colombia has taken the necessary steps to fulfill peoples’ hopes E OLD BOSS?

A similar process can be seen in the concerned at the proposals. In recent years the defenders, indigenous activists and others. Intelligence law passed by Congress earlier judiciary has been something of a thorn in the Several are leaders of displaced people this year. The law was widely hailed as side of the legislature, the executive and the fighting to return to their lands. Many more placing the intelligence services, known as the armed forces. Its investigations into continue to report threats from paramilitary DAS, under civilian control and making paramilitary links to the State have led to the groups, and others the use of what they call illegal hacking impossible. The law was a sentencing of dozens of former legislators, as ‘judicial set-ups’, whereby activists are reaction to DAS scandals in which it was well as military personnel. The Supreme Court accused of catch-all charges of ‘rebellion’ or revealed that the DAS had illegally intercepted also blocked several reforms and agreements, ‘terrorism’ and imprisoned. They can remain opposition communications and another which provoked the ire of then President imprisoned for months or even years without which recently resulted in former Uribe Uribe, who accused the Supreme Court of being sentenced, as in the case of Liliany golden boy and DAS Director, Jorge Noguera, falling for a ‘terrorist trap’. Critics of Santos’ Obando, who has been jailed since August being sentenced to 24 years in prison for reforms claim that they are focused on 2008. Recently six members of the collaborating with paramilitary groups. The hobbling the independence of the judiciary FENSUAGRO agricultural workers’ union Colombian opposition is critical of the law, and further concentrating power in and two members of the Colombian which on the one hand makes it illegal to Presidential hands. The reform would also Communist Party youth were arrested on hack into communications without a court affect one of the most positive elements of the these charges in just one region of the country. order, but at the same time legalises the 1991 Constitution, the right for any citizen to Despite his talk of peace Santos has also interception of all communications within a place a ‘writ for protection of fundamental pursued a similar course as regards what the given geographical area. According to Carlos rights’. The reform proposes that in some social organisations call the ‘armed social Lozano, editor of Colombian weekly cases this writ would have to be placed by a conflict.’ Instead of offering negotiations or a newspaper Voz, this means that ‘what was lawyer, fundamentally changing what has been dialogue aimed at achieving peace he has done illegally before, will now be done called ‘the heart of the 1991 Constitution.’ permitted the armed forces to bomb civilian legally.’ Nor does the law contain any It is clear that President Santos’ legislative homes from where they perceive guerrilla enforcement mechanisms that could oblige agenda has in some ways sought to build attacks to have come, he has also announced the intelligence services to cease targeting the upon Uribe’s legacy of actions that benefit the creation of new units, an injection of over political opposition and others deemed economic elites, limit the scope of operation $800 million USD for the military and a threats to national security. Worryingly, in the for the opposition and strengthen further blurring of the difference between the light of recent revelations that DAS agents authoritarian tendencies within Colombia. military and the intelligence services which have sold intelligence databases to the highest At the same time this could all be seen as his cannot bode well for the political opposition. bidder, opening the potential for their use by democratic prerogative if it were not for the Perhaps this is when it is useful to remember paramilitaries, the law contains clauses that continuing repression of those critical of State that Santos was Uribe’s Defence Minister and would allow the sub-contraction of actions and Government policy. his words during his inauguration where he intelligence work to private firms. The law Conditions for the political opposition and paid ‘special tribute, a homage from the also severely punishes those who leak those involved in social activism have not bottom of my heart to a man who will shine information deemed in the national interest, changed. Since Santos took power the tragic in history as the man who gave Colombians and forces media to reveal their sources. litany of assassinations has continued. On hope in tomorrow once more, and the Opposition media and human rights average one social activist has been killed possibility to travel our beautiful country organisations say that this will prevent them every three days, about 110 in total. Among without fear: Alvaro Uribe Velez.’ from reporting abuses committed by the them are 23 trade unionists, one judge armed forces. investigating the torture, rape and murder of Victor Figueroa works for Justice for Colombia, a Santos is also seeking to reform the three children by army troops and one lawyer UK-based NGO established by the TUC that judiciary. While some reform of the inefficient representing trade unionists in Cali. Others campaigns for peace and social justice in judicial process is necessary, the opposition is are neighbourhood activists, human rights Colombia

Socialist Lawyer October 2011 29 Socialist Lawyer interview OWEN GREENHALL speaks to GEOFFREY BINDMAN Pictures by Gemma Hall

‘I was interested in helping sort out people’s individual problems’

What do you see as the greatest the main urban centres and our house was challenges in the proposed legal aid situated in a deprived mining community. My cuts? father practised entirely on his own from after I think the fundamental problem is the denial to the Second [World] War, which he served in as people who are faced with legal problems of the an army doctor for six years. I was 12 when the legal advice and representation they need. That war ended and so my memories of my later is the fundamental issue and it goes back to the childhood and adolescence are of my father principle that in any legal system which claims working in the community in which we lived. to seek justice you have to have equality of arms As a youngster I got to know a lot of his patients and a level playing field. It could be argued that very well. The practice was in the house where if you got the right judges, for example in a we lived and the patients were around all the continental-style inquisitorial system, it would time. So I was very much aware of what was be possible for the judge to investigate and to going on in the sort of practice where one get at the facts without necessarily relying on professional person is advising and caring for a legal representation. But, in our system, proper large number of people with one-off problems, representation is essential to fairness. or maybe continuing problems, who come for We have always had deficiencies in that help. Although I wasn’t particularly conscious respect. Probably the very best legal system is of it at the time, when I eventually went into the not going to achieve equality between the rich law I wanted to have those sort of personal and the poor, because the rich will have an relationships with my clients. I was interested in advantage through being able to pay for better helping to sort out people’s individual lawyers and through their own educational problems. I wasn’t interested in corporate law background. So you are not chasing perfection. or grand schemes. That I think influenced me a But, it seems to me, absolutely contrary to the lot in the direction I eventually took. GEOFFREY BINDMAN qualified as a solicitor demands of a democratic system, and of a fair Did the fact that your father was running in 1959 and has practised in London since 1960. system, not to have legal representation in cases his surgery as a sole practitioner He founded the law firm Bindmans in 1974 and that need it. influence your decision to set up your throughout his legal career has specialised in You grew up in Gateshead and your own firm? civil liberties and human rights issues. He is a father was a GP, were there any I have rarely reflected on the connections and Visiting Professor of Law at University College London and at London South Bank University, influences from your early childhood on the influences were as much subconscious as an Honorary Fellow in Civil Legal Process at the your later career? apparent. But I do think that my career has s University of Kent, and a Fellow of the Society of At that time coal mining extended very close to been quite individualistic. Although Advanced Legal Studies.

30 Socialist Lawyer October 2011 Picture: Gemma Hall / www.gemmahall.co.uk Picture:

Socialist Lawyer October 2011 31 s Bindmans the firm has grown to quite a were people of great intellect and erudition, but considerable size I was never particularly what they were talking about had very little to interested in establishing a large organisation. do with real life. I mean, with an Oxford law I was perfectly happy doing more-or-less what degree you were not a lawyer in the sense of a came along and my focus was always on the practising lawyer. The two things were chalk clients rather than on administration and and cheese. organisation. I have always been immensely Did you always want to be a solicitor? fortunate in my colleagues who have managed When I first started my career I intended to be a to keep the show on the road in some very barrister and had been offered a pupillage, but difficult times. I was diverted by a solicitor from Dees and I have also always been a generalist. I have Thompson, a firm in Newcastle which is now always believed in a kind of homogeneity in part of Dickinson Dees. I met Collingwood legal practice that is not always recognised. If Thompson, the senior partner in the firm, at a you get used to seeing a number of different party and he persuaded me to give up the Bar branches of law in practice and you get used to and become a solicitor. I was already worried dealing with whatever turns up, a pattern about the financial difficulties in starting out at emerges which somehow gives you the ability the Bar, so I was amenable to other suggestions to do any kind of law. It would be regarded as and I agreed to join his firm. I knew that their eccentric by many people today, but I’ve always clients included the local aristocracy and believed that and I did put it into practice, landed gentry, which, surprisingly, hadn’t put particularly when I started on my own by me off – though perhaps it should have done. opening an office in Kentish Town in 1963. My uncle, a solicitor in London, was surprised Where there any other experiences by my decision and asked me: ‘does he know before starting practice which you’re Jewish?’ Then, when I went to influenced your later career? Thompson’s office about a week before I read law at Oxford, then I did the starting articles he told me that, while I could postgraduate BCL degree and was interested in do my articles there, I could never be a partner an academic career. While ultimately I don’t in the firm because their clients wouldn’t wear think I was ideally suited to being a full-time it. So I left straight away. That was an academic, I did spend a year as a teaching immediate reaction. It would have been fellow at Northwestern University Law School intolerable to remain in the building. in Chicago. I was there in 1959 and 1960. It Did this early experience of anti- was before the civil rights movement in the Semitism influence your later career? United States had really got started, but a very Yes, I’m sure it did. It made me feel strongly interesting thing happened to me which hostile to discrimination and very angry about became more significant later on. racism in any form. At that time, Willard Wirtz was the professor As someone who has been involved in of labour law at Northwestern and also a anti-discrimination issues throughout partner in Stevenson, Rifkind and Wirtz – the your career, do you think that we still live law firm of Adlai Stevenson who was Governor in a racist society? of Illinois and had been Democratic candidate I’m not keen on that sort of terminology, but I for President. Through Bill Wirtz, the teaching have no doubt at all that there is a lot of racism fellows had access to part-time work in the firm in society and there are a lot of racist and I was assigned to a case that was highly assumptions made by a lot of people and the celebrated in Chicago at the time: the Deerfield effects of those assumptions are to create case. The issue was racial discrimination. A discrimination on quite a large scale. property developer client of the firm wanted to What role do you feel the law should be build a multi-racial housing estate in the all playing in this area? white suburb of Deerfield. The local authority I have always advocated from my first “I’ve always felt uneasy used its compulsory purchase powers to acquire becoming aware of this subject that there the land for a public park and thus prevent the should be legislation to challenge about the way lawyers development. The reason given was quite discrimination in anything that impinges upon spend their spare time blatantly a pretext to stop blacks coming into any public area. I think there are good grounds their area. The decision to acquire the land was for excluding legislation in the private sphere. I mixing with other challenged and the case eventually went up to was very heavily involved in the first anti- the Supreme Court. Though we were discrimination laws and the general lawyers and going to unsuccessful as it turned out, it was an framework of anti-discrimination legislation I important step in the struggle – and a wonderful very strongly support. It has developed quite events with other training ground for someone who was going to well in my view and the framework of the law be involved in anti-discrimination law in Britain. is sound, though I think enforcement is lawyers all the time. There was nothing like it happening here at the inadequate in many respects. Even purely on a social time. Our first tentative Race Relations Act did It all started very slowly with the Race not arrive on the scene until 1965. Relations Act in 1965. I was very fortunate level. You can get You were interested in an academic because although I probably knew very little career and you have subsequently held about it in those early days, by a series of institutionalised within academic positions. Do you feel that it is accidents I was appointed to be the legal particularly valuable for the profession adviser to the Race Relations Board when it the legal profession.” to have connections between practising was established. At that time I was a partner in lawyers and academics? a firm and I took it on on the basis that I would Oh yes. I think that academics have been far only spend two days a week working for the too remote from practice. Thinking back to my Board. It eventually became three days a week, own legal education, at university there were but I did not give up my partnership at the people who were teaching that one held in awe. firm. I was an independent lawyer and the They were deserving of it in many ways, they Board was simply a client.

32 Socialist Lawyer October 2011 right. But, I think that if one’s talking about a lawyer should provide for their clients? right to equality then there are a whole lot of I don’t think so. A lawyer ought to be someone areas that are not covered by the law at all at that a person can talk to about anything, the moment. There’s a long way to go though a lawyer would be very foolish to especially if you start thinking in terms of attempt to advise someone on a subject economic equality. without knowing anything about it. I think It’s also going to take a long time to that part of the lawyer’s stock in trade ought to determine how equality and human rights fit be a certain level of worldly experience and together and to work out the right balance, wisdom which comes from getting to know a because the most obvious analysis would tell lot of clients with a lot of different problems you that equality is one among many human and learning from that experience how people rights. Of course the inclusion of human rights can improve their situation. Now, it sounds as in the role of the Equality and Human Rights if that may be a job for a doctor or a

Picture: Gemma Hall / www.gemmahall.co.uk Picture: Commission is important, but this was really psychiatrist as well, but I think that the good an add on because of the failure of the lawyer has to have a range of experience and Government when they introduced the Human be willing to confront the whole client, Rights Act to set up any sort of commission or otherwise the advice and help is not going to means of educating the public about human achieve the desired result. rights. It was a missed opportunity in 1998. Do you think that the concept of a Do you see any limitations in a rights- campaigning lawyer is a departure from based jurisprudential approach? that traditional conception? The Convention and the Human Rights Act That is an interesting question, because I’ve reflect the fundamental value of human dignity always felt a certain tension between doing a and the human personality which underlies our lawyer’s job with an individual client and being whole democratic system. However, I think a campaigner for a cause. In America they have there are issues around the emphasis on the term ‘cause lawyer’ which means a lawyer individual rights as opposed to the good of the with a political agenda. I’ve done a lot of community and collective rights. That is an campaigning and yet I’ve always been very issue that troubles some people on the left and cautious in bringing a political agenda to bear certainly troubles people in the trade union on my work as a lawyer. I’m not against movement. There are people who are opposed lawyers being activists – they should be to the Human Rights Act on the basis that it activists – but one has got to be rather careful gives too much prominence to individual rights to keep the two things separate as far as one and to lawyers and judges in determining can. After all, your client may not have your people’s rights. political views and your client’s interests may Do you think that the broadening scope be selfish and opposed to those of society or of judicial review and the ability to use opposed to your political aims. How do you public law challenges is of wider cope with that? It’s a real question and it’s significance for the place of law in worried me. society? I have the same feeling about too close I do. I think it’s a very fruitful way for the association between lawyers. I’ve always felt individual to challenge the State. Although I’ve uneasy about the way lawyers spend their talked earlier about my own interest in helping spare time mixing with other lawyers and individual clients to solve their personal going to events with other lawyers all the time. problems, I’m also very conscious of the way in Even purely on a social level. You can get which the law can be used to deal with wider institutionalised within the legal profession. problems and the mechanisms by which the Now that you’ve reached the end of your In terms of recent developments in anti- law enables wide social problems to be dealt legal career do you feel that you have discrimination law, the Equality Act with are of very great importance. I believe in the freedom to be more politically 2010 is coming into force. Do you see being pragmatic to the extent that if one sees a active? that as a significant development in the problem one looks around for whatever means I suppose I’ve got the time, but I don’t have the law? are available to try and solve it. Sometimes, if energy. It’s a wonderful idea that you reach the I think the Equality Act is much more you get a group of people who are affected by age of 75 or whatever and you don’t have to go important in institutional terms rather than in an issue then the only way you can help them to work so you can spend all your time terms of the law itself because of the fact that effectively is by some kind of collective changing the world. The inclination is there, the various commissions have been challenge. but the flesh is weak [laughs]. incorporated into one body. Anti- What is the most significant public law You received a knighthood in 2007 and discrimination law covers several different case that Bindmans has been involved said at the time that it would ‘give you grounds of discrimination and, possibly, we are in? the confidence to be yourself’. Has this seeing the emergence of a generalised legal I would put the Pinochet case, in which we happened? right to equality, which I’m all in favour of. were acting for Amnesty, very high. That is a In most ways it has hardly had any effect on me However, we haven’t got much further than case which has had quite dramatic, worldwide at all, but I do feel it gives me more freedom to where we were before in terms of the content consequences in opening up the possibility of express my opinions. I am still the same person of the legislation. bringing dictators and heads of state to justice. but there is a sense that perhaps some people Picking up on the idea of a legal right to You recently described the work of a will take my views more seriously. Overall equality, obviously the European lawyer as follows: ‘[T]he kernel of the though, I don’t think it is important at all and it Convention doesn’t have a free-standing legal vocation to which I remain may have been a mistake to accept it. When right to equality, but has Article 14 committed has not changed. It is the I’m asked why I did so, I usually reply ‘because instead. Is that something you see as a help that people need to confront the it annoys my Tory neighbours’. shortcoming of the Convention? vast range of problems which cannot be Do you have political reservations about I think it is a weakness, but the Court itself has solved without specialist knowledge the honours system? tended to give Article 14 rather more strength and understanding of the legal and Yes, of course I do. I regard it as a kind of a than it would seem naturally to have because it administrative structures of our society.’ joke and it’s even more of a joke when people was never intended to create any independent Are there any limits on the help that a take it seriously!

Socialist Lawyer October 2011 33 European Union citizenship: after Zambrano by Adrian Berry

n 8th March 2011 the Court of Justice of the European Union (CJEU) handed down judgment in the case of Zambrano v Office national de l’emploi (ONEm), Case C-34/09. The judgment marks a step-change in the development of the Court’s case law concerning EU Ocitizenship under article 20 of the Treaty on the Functioning of the European Union (TFEU). It is an unambiguous statement that EU citizenship is a status deserving of protection across the Union, regardless of whether or not free movement rights have been exercised by a person moving from his or her EU Member State of nationality to another Member State, and in particular that EU citizenship may be relied on by a person in their own Member state.

EU citizenship: after the Treaty of Lisbon Following the entry into force of the Treaty of Lisbon on 1st December 2009, EU citizenship is provided for by article 20(1) TFEU, which states that: ‘Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.’ As was the case prior to the Treaty of Lisbon, EU citizenship is a derivative status conferred on persons holding the nationality of a Member State. It is an additional status. The States themselves define the criteria for acquisition and loss of their own respective nationalities, subject to any emerging requirements of EU law. At present, no-one who lacks the nationality of a Member State may be an EU citizen, so persons who are lawfully present on the territory of the EU Member States, even as a consequence of international obligations owed by Member States such as the 1951 Refugee Convention or the 1954 Statelessness Convention, cannot be EU citizens absent acquisition of the nationality of a Member State. However, it is clear following Zambrano that persons who are not EU citizens may derive a right of residence and a right to work in an EU citizen’s own Member State where required for that EU citizen’s ‘genuine enjoyment of the substance of the rights’ conferred by virtue of his or her status as an EU citizen.

The rights of an EU citizen By article 20(2) TFEU EU citizens enjoy the rights and are subject to the duties provided for in the EU treaties. Among other things, these include (i) the right to move and reside freely within the territory of the Member States, (ii) the right to vote and to stand as candidates in European Parliament elections and municipal elections in the Member State of residence (on the same terms as its

34 Socialist Lawyer October 2011 own nationals), (iii) in a country law. The Belgian employment tribunal hearing the case outside the EU where their State of then referred questions to the CJEU for a preliminary nationality is not represented, the ruling. In essence Mr Zambrano sought to rely on his right to enjoy diplomatic and consular protection children’s status as EU citizens to derive a right to reside from any Member State on the same conditions as and work in Belgium. nationals of that State, and (iv) the right to petition the The CJEU held that national measures that European Parliament, to apply to the European have the effect of depriving EU citizens of the Ombudsman, and to address the EU institutions and genuine enjoyment of the substance of rights conferred advisory bodies. These rights are to be exercised in by virtue of their status as EU citizens are precluded. It accordance with the conditions and limits defined by the stated that a refusal to grant a right of residence to a EU treaties and by the measures adopted under them. As non-EU citizen (third country national) with dependent can be seen only (i) and to some extent (ii) relate to free minor children in the Member State where those children movement rights within the EU. Rights under (iv) plainly are nationals and reside, and the refusal to grant a work require no movement within the EU. permit to that person, has such an effect. The Court reasoned that ‘it must be assumed’ that refusal to grant a Zambrano right of residence would lead to those EU citizen children In Zambrano two Colombian nationals, husband and having to leave the territory of the EU in order to wife, sought asylum in Belgium but were refused asylum accompany their parents. Equally, if a work permit and refugee status. However the relevant Belgian Court were not granted to such a person he would risk not Order included a non-refoulement clause on the basis that having sufficient resources to provide for his family, they could not be returned to Colombia on account of the which would result in those EU citizen children civil war there. During their time in Belgium the couple having to leave the EU. Thus, EU citizens sought permission to remain lawfully without success. would be unable to exercise the substance of the In this period two children were born to them. rights conferred on them by virtue of their status Colombian law required Colombian national parents who as EU citizens. sought Colombian nationality for their children born Two points should be noted about the Court’s outside Colombia to take steps to enable Colombian reasoning. First, this was not a case about free movement nationality to be acquired by those children. As the and in particular no reliance was placed on Directive parents did not take those steps the children did not 2004/38/EC, known colloquially variously as the citizens’ acquire Colombian nationality at birth or thereafter. directive, residence directive or free movement directive. Under Belgian law at the time, a strong anti-statelessness Second, the Court was not concerned to protect the right provision provided that children born in Belgium, who to respect for family life for EU citizens, per se, or to set while minors were otherwise stateless, acquired Belgian out a rule regarding a right to family re-unification for EU nationality. In this way the children acquired Belgian citizens, but rather to decide the case by reference to what nationality and, additionally, EU citizenship. was required so that the genuine enjoyment of the During this time in Belgium Mr Zambrano worked substance of the rights of an EU citizen, conferred without permission and paid social security contributions. by virtue of his or her status as an EU citizen, was not By virtue of his work, his family were self-sufficient. When impaired. he was found to be working without permission his Such rights as the Zambrano parents have under employment was terminated. He sought unemployment EU law derive from the need to give effect to and benefit and was refused on the basis that he had not had protect the rights of their EU citizen children under EU permission to work and reside in Belgium during his law. However that begs the question, what rights do EU period in work. He challenged this decision relying on EU citizens enjoy under EU law? From the judgment it appears that under article 20 TFEU they enjoy, among other things, the right as EU citizens to live and reside in their EU Member State of nationality and not to be driven out of the territory of the EU as whole by the need to be with their parents who look after them. In effect EU law recognises that EU citizens have a right of abode in their EU Member State of nationality, which EU law will protect from being rendered ineffective because they are EU citizens who are accorded certain rights under the TFEU by virtue of holding such status. A national of an EU Member State automatically s

Socialist Lawyer October 2011 35 “EU citizenship is not citizenship in the sense of nationality, i.e. a person’s international identity as belonging to a sovereign state, but it increasingly displays incidents associated with nationality” s acquires the additional status of EU citizen and may EU Member State may nonetheless be subject to judicial rely on rights acquired thereby against his or her own EU review under EU law where EU citizenship is also in issue. Member State of nationality where required to save him or her from being driven out of his or her country of After Zambrano nationality and thereby the territory of the EU. After Zambrano the CJEU handed down judgment in the case of McCarthy v Secretary of State for the Home Member State nationality and citizenship Department Case C-434/09, 10th May 2011. In that The judgment in Zambrano is further evidence of the case, where a dual national British/Irish/EU citizen who development of EU citizenship. It is a status conferred had always remained in the UK and who had never been under EU legislation, the TFEU, and applied by the CJEU economically active or self-sufficient sought recognition across the EU increasingly – although unevenly – as if the of an EU right of permanent residence in the UK for Member States were one territory. The reference in herself and – more importantly – for her unlawfully Zambrano to the EU citizen children having to leave ‘the present non-EU citizen third country national spouse by territory of the Union’ is particularly interesting. The EU reference to her right of abode in the UK, the CJEU held has no ‘territory’ of its own. Rather its territorial scope that refusal of a residence permit to her and therefore a extends to the territories of the states who are parties to residence document to her husband did not oblige her to the Treaty on European Union (TEU), subject to the leave the territory of the EU, otherwise interfere with the modifications made by the TFEU (see article 52 TEU, genuine enjoyment of the substance of her rights as an article 355 TFEU). However the approach of the CJEU in EU citizen conferred by virtue of that status, or impede Zambrano is to consider EU citizens’ rights in the context the exercise of her right of free movement and residence of a territory to which they may be said to belong, the within the territory of the Member States. Thus there EU. was no violation of her rights as an EU citizen as This approach recognises that by and under the EU protected by the TFEU. treaties the EU had been allocated and performs While McCarthy is a case of some complexity, one supranational functions across the territories of its difference between Zambrano and McCarthy is that in Member States, in a context where nationals of those the former case the non-EU citizens, third country States enjoy rights and are subject to duties created as nationals, enabled the EU citizen children to live in their part of the same legal order. EU citizenship is not EU state of nationality and thus the territory of the EU by citizenship in the sense of nationality, i.e. a person’s looking after them. By contrast, notwithstanding the international identity as belonging to a sovereign state, spousal relationship between Mr McCarthy and Mrs but it increasingly displays incidents associated with McCarthy, the former’s presence in the UK was not nationality. This can be seen in the provision made for considered to be a requirement for Mrs McCarthy to live consular and diplomatic protection under article 20(1) in the UK. If nothing else the judgment in McCarthy is an TFEU as well as rights of entry and residence for an EU indication that in cases where there is an absence of the citizen and his or her family members into other Member exercise of free movement rights and where the EU citizen States and, now, in Zambrano the emphasis on a right of remains in his or her EU Member State of nationality, the abode protected by EU law in an EU citizen’s own right to respect for family life and family re-unification Member State of nationality and across the territory of principles may play no meaningful role in circumstances the EU. where his or her right of abode in the EU Member State The increasingly complex inter-relationship between of nationality and his or her presence in the territory of holding the nationality of an EU Member State and the EU as a whole is not considered to be impeded. holding the additional status of EU citizen had been At present no-one who is not a national of an EU considered in the earlier judgment of Rottman v Freistaat Member State may be an EU citizen. It would require Bayern Case C-135/08, 2nd March 2010, prior to revision of the EU treaties for it to be otherwise. Zambrano, where, in a case concerning deprivation and However, non-EU citizens may derive rights, including loss of the nationality of a Member State and thus of EU rights of residence and permission to work, from the citizenship, the quickening of EU citizenship rights absent rights accorded to EU citizens by virtue of that status. free movement rights, can be detected prior to the delivery The full plenitude of these derivative rights remains to be of the judgment in Zambrano. In some respects Rottman explored. is even more important than Zambrano for it makes it clear that the conditions governing loss of nationality of an Adrian Berry is a Barrister at Garden Court Chambers

36 Socialist Lawyer October 2011 Reviews

Testimony to everyday struggles

Maria’s Story: A Documentary intimacy and loss, struggle, and Portrait of Love and Survival in survival that are a part of the war. El Salvador’s Civil War The film is carried by the Documentary film directed by incredibly charismatic persona of Monona Wali and Pamela Cohen María, a practical and inspiring (1990, rereleased 2010), DVD, PM thinker who motivates not only Press, 60 mins. her own family to get involved in the struggle, but many others as n June 2009, Mauricio Funes well. The family story is took office as El Salvador’s first somewhat romanticised with the Ileftist president. With more happy reunion of María, José, and than 51 per cent of the popular their two daughters in San José de vote, Funes won the election as the las Flores for the first time in three candidate of the Farabundo Martí years. However María’s retelling National Liberation Front of the death of Ceci, her middle (FMLN), the political party that daughter killed in an army was once a federation of guerrilla ambush in 1987, returns viewers armies that fought the Salvadoran to the horror of the war, which has State to a bitter stalemate in the affected every family. After 1980s. María’s Story, a retelling how Ceci was killed, documentary filmed 20 years María adds that soldiers split before Funes’ historic election, open her body. She doesn’t blame records a nationwide military and them for killing her daughter political offensive undertaken by ‘because we are making a war,’ the FMLN in late 1988 and 1989. but ‘these are things that no one This ‘final offensive’ was a crucial can be prepared for,’ she says, step on the path to the peace referring to her daughter’s accords signed in January 1992, mutilation. ending the Salvadoran civil war. The film begins in a guerrilla While many have heard the war’s camp catching up with 39-year- gruesome statistics – which old María, who explains that they include more than 70,000 people are planning a military offensive killed, most of them by the in order to ‘defeat the enemy Salvadoran military – few have militarily, politically, and had the opportunity to see what diplomatically’ in order to build a the war was like up close and new society built on ‘food, personal. The power of María’s schools, and health’ for all. Story, now available on DVD on Shortly thereafter we meet 13- the occasion of its 20th year-old Minita, María and José’s anniversary, comes from the FMLN fighters. Salvador (South End Press, 1994). youngest daughter, who tells us particular story of FMLN guerrilla María’s Story, is a valuable Both are compelling and moving that she likes being close to her leader María Serrano and her documentary and teaching tool testaments of the passion with mother. ‘If we had stayed in our family, as well as the film’s that will inspire audiences to which FMLN-aligned women house,’ she explains, ‘they would innovative techniques. discuss U.S. foreign policy, the struggled politically, militarily, and come and kill us.’ This matter-of- The filmmakers spent two reality of war, gender politics, and personally in the Salvadoran civil fact statement underlines the fact months in a provisional FMLN shared values of what constitutes war and the atrocious strategies of that she has been on the move camp, capturing the day-to-day justice and basic human rights. I repression that multiple since she was three years old. We experience of the war as María have shown it about a dozen times Salvadoran governments used then meet José, Maria’s husband, and other guerrilla soldiers went to undergraduates, usually as a between 1975 and 1992 to remain who works in supplies. They have from town to town. Under fire part of a general class on race, in power. been married for 21 years. from bullets and mortars, the class, gender, and politics in Latin A family story – that of María, The next scene leads us across filmmakers used solar-powered, America. I often pair the film with her husband, José, and their two the Sumpul River, the site of small-format video cameras to María Teresa Tula’s book, Here living daughters – provides the film various massacres, including a document the everyday struggles, notorious one in 1980, when My Testimony: María Teresa with a conventional lens, bringing s violence, hope, and courage of Tula, Human Rights Activist of El out the experiences of love, family the Salvadoran military

Socialist Lawyer October 2011 37 Reviews s massacred more than 300 non- from US and European outside of the country – estimates combatants in 1980 as they tried committees that were crucial in range from 14 per cent to 40 per Convicted of to flee into Honduras. We follow helping it to rebuild and resist cent of the population. María, José, and Minita into their further military incursions. There, The new DVD version marks hometown of Alcatao, where they María gives a short inspirational the passage of time by providing crimes they visit José’s father. A town speech and meets up with her viewers with short updates on the originally of 10,000, only 1,000 husband and eldest daughter, film’s main characters. María ran couldn’t have people remain. Here, María takes Morena, who tells us how she for and won a congressional seat us to the house where she arrived went into health work when she in 1997. After serving one three- as a newlywed, gave birth to her was 13 with a strong push from year term, she got fed up with committed children, and worked as a rural María. The last portion of the film national politics and went to housewife and for a campesino provides an upbeat assessment of school. In 2002, she got her Give Up Tomorrow union. the final offensive the FMLN was bachelor’s degree in social studies Directed by Michael Collins While in her hometown of preparing in 1989. and since 2005 has worked as an Alcatao, María takes viewers on a What might be billed as almost elementary school teacher and n 1997 Paco Larranaga was tour of the old National Guard a music video within the film education advocate. José returned arrested at his college in headquarters, which is not far features shots of guerrillas to their home in Alcatao to work IManila in relation to the from her former home. In 1979, preparing bullets, bombs, on their small farm while Minita, kidnapping and murder of two Alcatao was taken over by the Molotov cocktails, and other the youngest daughter, finished a young women 350 miles away in military, which detained and weapons to the tune of a catchy degree in 2006 to become a nurse his hometown of Cebu. tortured people in the ballad about insurrection and practitioner. Morena is a teacher Confident of his innocence and headquarters. María and her revolution. María provides a in Chalatenango. Now a sure that 35 of his classmates family left in 1979 and, as they stirring narrative that compares grandmother, María has a could vouch for his presence in explain in the film, have not lived ‘the insurrectional moment’ to granddaughter, Carmen Aída, Manila on the night of the alleged there since then. María explains ‘giving birth to a baby.’ The next who finished a bachelor’s degree crimes, Paco boarded a plane to that she joined the FMLN in 1987. shot moves us into an intimate at the University of El Salvador. Cebu to clear his name. So begins Many people who fled Alcatao look at one small piece of this Thus all of the women and girls a Kafkaesque story of corruption, were living in the mountains of plan as María’s guerrilla group featured in this documentary have injustice, and a family in crisis, Chalatenango, where guerrillas moves into a town and attempts completed higher education culminating in the Philippines with the Peoples Forces of to hold it overnight after running degrees and become professionals ‘trial of the century.’ The film Liberation (FPL) – the largest of out a group of government – a remarkable achievement for follows the trial of the ‘Chiong 7’ the five FMLN guerrilla groups – soldiers after an intense firefight. people who survived 10 years of during which it is revealed that were also operating. Since they We witness a young girl related to fighting on the civil war’s front the bodies of the victims were not shared daily necessities in the same one of the guerrilla soldiers in lines. the missing girls, the State's star place, María explains, it just made María’s unit getting hurt in the While María and her daughters witness was tortured to confess sense to join up. effort. The army retreats, and the are pursuing traditional paths for and the judge was found dead in a From there the film moves to evening is marked by an inspiring women – in teaching and nursing – hotel room in suspicious an improvised guerrilla camp display of FMLN troops who their legacy is to help people on a circumstances. where there is strong anticipation shout slogans like ‘Revolution or daily basis in concrete ways that of Christmas celebrations. An Death’ and ‘Chalatenango can change their personal FMLN soldier who looks about Heroico.’ The parting shots of the situations. As such, the update 13 years old at most can be heard film pan over nature scenes as provides us with hope that many Sparks fly talking excitedly about the milk, María reads a poem she wrote more young women will be able to bread, and tamales that will be about her rebirth through the make such choices and others given out on Christmas Eve. But a revolutionary movement and its without the decade of pain this Ashes and Sparks: Essays on surprise mortar attack ends the relationship to the changing family went through. At a larger Law and Justice by Stephen anticipated festivities. ‘Open your seasons. level, the update puts the film back Sedley. Cambridge University Press, mouths when the mortals fall,’ Viewing the film 20 years after into a space of hopefulness and 446pp, £19.99 María tells the filmmakers, since it was made offers an interesting anticipation with the first FMLN Tactical Questioning, Scenes the pressure can cause eardrums to optic on where El Salvador is now president taking office. Let us from the Baha Mousa Inquiry, burst. On the run again, María’s and where it has been since the hope that he can help to make Tricycle Theatre edited by Richard guerrilla unit finally sleeps and peace accords. A series of right- María’s dream of food, health, Norton-Taylor then walks into San José de las wing presidents who endorsed a and education for all a reality in El Flores, a repopulated FPL neoliberal political and economic Salvador. here are some sparks of community that has managed to agenda have left El Salvador with lLynn Stephen is director of the freedom in the minds of construct houses, plant and ongoing inflation, increasing Center for Latino/a and Latin ‘Tmost, which ordinarily lie harvest corn, and begin to plan problems with violence linked to American Studies, University of deep and are hidden in the dark as things like schools and health the expanding activities of Oregon. This review first a spark in the ashes.’ So wrote John clinics. Sister cities with Mexican drug cartels and gangs appeared in the September/ Warr the Leveller pamphleteer Cambridge, Massachusetts, San vying for control of trafficking October edition of NACLA and is whom Stephen Sedley so admires José was an important focus of routes, and a large portion of the reprinted here with the kind and whose words lent the book its solidarity work, receiving support country’s 6.2 million people living permission of the author. title. It charts Sedley’s thoughts on

38 Socialist Lawyer October 2011 Reviews

Paco and his co-accused were to comply with its obligations in not allowed to give evidence in international law to protect the their own defence and had their right to a fair trial? How could own lawyers thrown into jail for they fail to respond to the UN contempt of court. All seven Human Rights Committee when young men were convicted of they told them that Paco had crimes they could not have suffered a ‘flagrant denial of committed. All seven young men justice’ and should be freed within were sentenced to death. 90 days and how set against that Small mercy came in 2005 background can Spain continue to with the abolition of the death detain him and claim to protect penalty in the Philippines and his rights under the European following a long campaign by Convention on Human Rights? NGOs, including Fair Trials Shown in an edited form on International and Reprieve, BBC4 in April 2011, the film had Paco's transfer to his father's its cinematic premiere at the homeland of Spain in 2009. Tribeca Film Festival in New However, Paco remains in prison York, where it won the audience in Spain to this day unable to be choice award. It has gone on to released on parole until he admits also win awards at the Sheffield his ‘guilt’. Doc Festival and Michael Give Up Tomorrow, directed Moores' Traverse City Film by Michael Collins and festival where it won best activism produced by Marty Syjuco film. All of these awards are a exposes some of the truths reflection of the emotional behind a case that has enraged reaction this film incites in its and enraptured the Philippines audience. Few can leave the for the past 14 years. It also auditorium without demanding presents a simple yet powerful how can this happen and how can story of a family, torn apart by we help? Find the answer at the incarceration of a son and www.justiceforpaco.com as the brother. It draws out the campaign continues to set him dramatic struggle between two and the Chiong 7 free. mothers as they fight to Give Up Tomorrow continues exonerate or execute Paco. to be shown around Europe, for For lawyers, the film raises more details see questions such as how the www.giveuptomorrow.com. Philippines could completely fail l Anna Morris history, law and justice over 25 voices and the sharpest elbows’. Home Secretary’s time, along with Thomas Wheatley, begins with years. It is instructive and The essays which follow set out his checking the accuracy of some of soldiers and Corporal Donald entertaining in equal measure gradual acceptance of a domestic her recent assertions, would be Payne, played by Dean Ashton, including Sedley’s Laws of human rights instrument, though well spent reading this book. who by the time of the inquiry Documents. With its references to not without caveats, not least in As if to underline Stephen must have recounted the events a Dworkin it aims for a universal the defining of human rights and Sedley’s concern for the victims of thousand times. However, under legal and philosophical idea of the battles between the ‘polarities excessive power and State questioning he is mass of anxiety: justice, though, Sedley concedes, he of universalism and relativism’. oppression, it was with him in the unable to sit at ease; taking short, only ‘[does] micro-justice’. It turns And it is surely not as certain as he audience that I took my seat for shallow breaths; eyes avoiding his out that he had initially believed his claims that were the convention Tactical Questioning the latest questioner and darting around the ideas would deprive him of a being written today, rights to basic ‘verbatim theatre’ production by room as though vainly searching judicial career, being ‘much too left food and shelter and access to Richard Norton-Taylor and the for an unguarded exit. The wing to be considered’. healthcare would be among those Tricycle’s Nicholas Kent which enormity of what is described The 1992 essay Human rights – included. have also included the arms-to- builds until it is shattered by the who needs them? in the London In considering whether those Iraq, Lawrence and Saville evasions and prevarications of Review of Books sets out Sedley’s who transgress deserve inquiries. It echoes Bloody Sunday those in authority. There are laughs misgivings about incorporating the fundamental protections, he is in its direction and production. In from the audience but they are European Convention on Human clear: ‘Any legal system can protect both, the awful events are narrated easily identifiable as the sounds of Rights into domestic law. He the law-abiding and reward the for the audience as each witness incredulity. It is an incredulity feared its adoption would benefit virtuous. What tests its integrity is takes the stand to answer the which will endure while those only the powerful and those ‘with whether it can accord due process questions of counsel to the inquiry. responsible escape accountability. the longest purses, the loudest to the vicious and the devious.’ The George Elias QC, played by l Russell Fraser

Socialist Lawyer October 2011 39 Haldane Society of Socialist Lawyers at the Amnesty International Human Rights Action presents a one-day conference Centre, London Friday 24 February 2012 Defending

and international campaigning humanorganisations and solidarity movements. defendersThe conference will provide opportunities for human rights defenders from a myriad of countries to make contacts, publicise their struggles and for British lawyers and activists to murdered in the offer real, practical Philippines. Palestinian solidarity. activists face assassination, death-threats, arbitrary detention. The Russian state is accused of complicity in the murders rightsof campaigning www.haldane.orgAcross the globe, human journalists. The lesser- rights defenders face known struggle in assassination, arbitrary Swaziland is a campaign detention, death-threats, for basic democracy, threats to their families, against a feudal monarchy. arrest, house arrest and These are just five restrictions on travel, challenging civil societies communication and where activists daily risk expression. In Colombia, their lives for their one human rights commitment to human defender is murdered rights and social justice every three days under a and we welcome government which delegations from these Further information from professes unwavering countries. We will also be support for human rights. joined by members of a For expressions of interests or Lawyers, journalists and broad range of national offersthe to assistconference,contact in organising xxxxxxxxx please trade unionists have been