Spring 1987 No.2

Stephen Sedley on Judical Review Nick Blake on the U.K. and Refugees Employment Discrimination in Northern lreland by Paddy O'Connor Roundtable on Local Authority's Powers and Tenants' Rights Peter Thornton on the Public Order Act Haldane News Reviews and Letters

and much more . . .

Haldane Society of Socialist Lawyers _-

Haldane Society of Socialist Lawyers HALDANE NEWS s0crAlrsT LAWYER EXECUTIVE COMMITTEE JAMES WOOD has resigned as Treasurer and the EC r News has appointed PAULINE HENDY replace him, lReports to Pauline's appointment has created a vacancy on the EC Public Meeting Programme .....,.,,. 1 PRESIDENT: John Platrs-Mius e.c and the EC hopes to co-opt another member on to the EC Haldane News .1 to help with the workload. Wapping Legal Observers, ANNUAL GENERAL MEETING VICE Kadar Asmal; Fennis Augustine; Jack Gaster; lnterim Report ...... r...... 2 PRESIDENTS Tess Gill; Jack Hendy; Helena Kennedy; Dr The AGM is on SATURDAY 20th JUNE at 2.00pm in Paul O'Higgins; Stepen Sedley Q.C.; Michael Lawyers Against Apartheid 3 the Vera Anstey room at the London School of Economics, Houghton Street, London WC2. Seifert; David Turner-Samuels Q.C. ; Professor Rent Decontrol Press Release ....,. 4 Lord Wedderburn Q.C. \ryRITTEN RESOLUTIONS must reach BEVERLEY Disqualification of the Liverpool LANG at 1 Dr. Johnson's Buildings, Temple, London EC4 City Councillors ...... 4 NO LATER THAN SATURDAY s0th MAY 1987. \ryRITTEN NOMINATIONS for the posts Chair, Joanna Dodson, of CHAIR: Secretary and Treasurer and for 12 places on the Execu- Barristers' Chambers, tive Committee must reach BEVERLEY LANG at 1 Dr. 35 Wellington Street, Features Johnson's Buildings, Temple, London EC4 LondonWC2 NO LATER THAN SATURDAY 23rd MAY 1987. Candidates are owen Davies ...... ,..,. Judges v The Bomb 6 invited to submit a biography of up to 50 words. The Criminal Justice Bill THE EXECUTIVE COMMITTEE is responsible for the Beverley Lang, SECRETARY: Heather Williams and Mark Studdert . . . . , . , ...... 7 organisation of the Society. It meets monthly and meet- 1 Dr Johnson's Buildings ings usually last about 3 hours. Everyone on the EC is Judical Review stephen sedley Temple ...... expected to take an active part in the work ofthe Society London EC4. Employment Discrimination and to take responsibility for a specific area ofthe Society's 01-353 9328 work. For example, jobs on the EC this year have included in Northern lreland paddyo'c0nnor ...... 13 Meetings Organiser; Minutes Secretary; Editor of Socialist The U.K. and Refugêos NickBrake ...... 14 Lawyer; Convenor of the Women's Subcommittee; the Housing Employment Subcommittee; the Crime Subcommittee; the TREASURER: PaulineHendy, Roundtable: Russel Gampbell, Recruitment Subcommittee; the International Subcom- Cloisters, Gamilla Palmer in discussion .,...... ,,....,..,. mittee; the Ireland Subcommittee and the Mental Health Pump Court, jobs Public Order Subcommittee. There may be additional next year. Temple, Law-The NewAct Experience is not required but we do need hard work, London EC4. Peter Thornton 17 enthusiasm and commitment from EC members. We would particularly encourage neriler members to stand for the EC. EXECUTIVE Nick Blake, Pam Brighton, Andrew Buchan, 19 COMMITTEE: Adrian Fulford, Tim Kerr, Dick Lomax, Paddy O'Connor, Nick Paul, Danny Simpson, Bar- WOMEN'S RIGHTS MEETING bara Coherr, Ben Emmerson, Caroline 20 The EC apologises to all members for the last-minute McKeon, Andrew Nicol, Jeremy Smith, cancellation of this meeting. Both speakers found that Rhys Vaughan. they could not attend less than 24 hours before the meeting was scheduled to take place and we had no means of informing the membership, TESS GILL had to attend MEMBERSHIP sheliaKavanagh, an emergency meeting of her union's Executive Commit- tee in connection with an industrial dispute and PATRI- SECRETARY: i:åili'ii;"wRoad, PUBLIC MEETINGS CIA HEWITT had to accompany Neil Kinnock to Bristol for a TV interview. The meeting will be rescheduled - PR OGRAMME details will appear in the next mailing. MEMBERSHIP SECRETARY Editorial Andrew Buchan, Beverley Lang, Nick Paul, Summer SHEILA KAVANAGH will be resigning from this post at Committee Alastair Smail, Keir Starmer, the next AGM. We are very grateful to her for hef work. Heather Williams. lSth May 1987 The job entails sending out and processing membership applications and keeping membership records. Full train- Contributions from members are very welcome. lf you are interested in 'When Should Socialists Prosecute?' ing will be provided no experience required! Please writing articles or book reviews please contact NICK PAUL or HEATHER Speakers: Steven Solley, Helena Kennedy (Barristers); would anyone who might- be interested in this job contact Camilla (Local WILLIAMS at: 1 Dr. Johnson's Buildings, Temple, London EC4. Palmer Authority Solicitor). BEVERLEY LANG at 1 Dr Johnson's Buildings, Temple, London EC4. Tel: 01-353 9328. 3rd June 1987 Advertising rates 'Refugees' WAPPING: JANUARY 24th Socialist Lawyer welcomes advertising. The rates are: Speakers: Alf Dubbs Mp, Irene Khan (urucuR): DEMONSTRATION Barrie Stoyle (uxms Refugee Unit). Full page f 100 Ouarter page f30 Many members of the Society were present at the Half page f60 Eighth page f 15 20th June 1987 demonstration outside the News International Plant at The rate for classified advertising is 25p per word. We can distribute insert Wapping on January 24th and, witnessed the violence adverts at f50 for voluntary organisations and at f100 for commercial ANNUAL GENERAL MEETING which occurred. JOHN BOWDEN, acting as a Legal undertakings. All meetings at 7.15pm at the London School of Observer, was injured when police charged on the demon- Please contact HEATHER WILLIAMS at: 1 Dr Johnson's Buildings, Temple, Economics, Houghton ,Street, London WC2. strators. London EC4.

1 The Wapping Legal Observers, an independent group POLITICAL - to disperse, the horses were charged at speed into densely sponsored by the Haldane Society and the print unions, PRISONERS IN packed groups ofpeople, causing injury and hysteria. issued an Interim Report and press release on the events of CHILE o Despite recent police denials, the Wapping Legal Obser- 24th January which received extensive press coverage in vers can confirm that indelible red dye was sprayed into the Independent, the Finøncial Times, the Morning Star, the crowd, by a number of oflicers carrying cannisters on The Times and City Limits. BARBARA COHEN, a their backs. member of the Wapping Legal Observers and the EC of tflvs As in previous demonstrations at Wapping extensive on ilTERllarloi¡Âl the Society, was interviewed TV in connection with the DtsPtll( use was made of unmarked or poorly identifred police Report. The Interim Report is published in this issue of s$il l{tl tuÌ{ vehicles and many officers were observed without identi- Socialist Lawyer. frcation numbers on their shoulders or helmets. joined print o The Society with the unions in calling for an 3t0_t467õ74_50, Powerful police searchlights were used. They were Enquiry into the events ofJanuary 24th. The Society also directed not identifying individuals Belgium in the at responsible for hired BEN EMMERSON to work full time for one month throwing missiles etc. pointed s Juristes Demo_ but were at the most to gather and collate evidence (statements, photographs, densely packed parts demonstration. crates mentioning "Bureau d'assistance juridique au Chi- ofthe videos etc.) from demonstrtors, journalists and defence li". laywers relating to the events outside the News Interna- tional Plant on 24th January. The Society also set up a Beverley Lang Support Committee (the Wapping January 24th Commit- CONFERENCE IN CUBA tee) to work with Ben Emmerson on this project. The The NATIONAL UNION OF CUBAN LAWYERS members are BARBARA COHEN, JOHN BOWDEN, invites all interested lawyers to the Eighth Conference of Shortly after 8.15 pm a group of about 12 individuals Lawyers Against PAM BRIGHTON, DANNY SIMPSON, JOHN HEN. American Jurists to be held in Havan from September turned over a stationery lorry very close to the police DY, JANE DEIGHTON and CATHIE LLOYD (from 14th-17th 1987 on the subject "Legal Systems in the cordon across Virginia Street. There were then 4 or 5 the PUBLIC ORDER RESEARCH GROUP).The pur- American Continent". charges into the demonstration at large by groups ofabout Apartheid { pose of the project is to submit the collated evidence to The Conference will cover the following subjects: The 15 riot police with shields and batons. During the course of either a public or independent Enquiry into the events of Right to self-determination by nations and peace between these advances missiles (such as bottles and stones) were Lawyers Against Apartheid is a recently formed group that night, The costs ofthe project are being met out ofa states; Human Rights; Women's Rights and Family Law; thrown by individuals in the crowd at the police. A number of lawyers, law students, legal workers and those in- special appeal fund. Rights of Work; Penal Law and penitentiary organisation. of demonstrators were injured. After 25 minutes a tractor terested in all legal issues relevant to the struggle against Anyone interested in attending the Conference should was used to drag the lorry behind police lines. apartheid. It was established at a SATIS (South Africa WORKERS CHARTER write to: The police charges became increasingly frequently until The Imprisoned Society) Conference on political prisoners UNION NACIONAL DE JURISTAS DE CUBA they were almost continuous. After about 20 minutes a in South Africa in December 1986. The Haldane Society was launced re- The Charter formally in January and Calle 2l No. 552 esq. D, Vedado Havana Cuba. Tel:- particular group within the crowd began to break up will be applyrng to affrliate to this new organisation and ceived press coverage in the Morning Súør and the 32-9680-32-7561. AND - - paving stones and tear down railings and throw them at hopes to offer support to it. Finønciøl Times. Free copies have been sent to all ZOSIMA LOPEZ Palacio de las Convenciones Palco the police. The work of the Group is split up into different areas of members and to subscribers to the Employment Law Cuba Aprtado 16046- Havana Cuba. - At 9.00 pm police on horses came out of Virginia Street expertise and interest as follows: Bulletin. Copies of the Charter may be purchased at f1.00 - - - across the highway into Wellclose Street and charged into per copy from TIM KERR, 15 Old Square, Lincoln's Inn, THE DOMESTIC LEGAL SUPPORT UNIT will be the crowd repeatedly. Police units with short shields then responsible for: London WC2. Tel: 01-831 0801. charged the crowd. Police officers were observed throwing Panic increased among police bricks. and confusion the 1. Exposing the nature of the apartheid regime within the CRIMINAL JUSTICE BILL and the demonstrators. legal community. The Criminal Law subcommittee, organised by PAM 2. Getting Anti-apartheid resolutions put to AGM's of the The Residents'March Bar and the Law Society and law student bodies, BRIGHTON, made a major contribution to the campaign Wapping Legal A march of around 200 local residents was trapped detailed 3. Campaigning in solicitors firms, baristers' chambers against the Criminal Justice Bitl by drafting between 3 lines of uniformed police at the front and three Submissions on the proposals in the Bill and circulating and universities and colleges for anti-apartheid policies Observers Group van loads of riot police at the back. When the residents (i.e. them to Opposition MP's and to the Press. The Submissions anti-apartheid purchasing, banking and investment tried to force an escape through the police line, the police received detailed coverage in the media, notably in the practices). punched and pulled them and used their banners as 4. Setting up legal support Guardiøn. NICK PAUL was interviewed on behalf of the Interim Report on the Events of 24th weapons agaiñst them. No truncheons were used. a unit for anti-apartheid activities in the U.K. and providing advice and for Society on Radio 4. The Home Offrce responded directly to January Mounted police were in attendance. Several of the resi- support the Submissions and Opposition nrP's used the Submissions specific areas, e.g. trials arising from AAM activities; legal group dents were seriously injured. as the basis for attacking the Government at Committee The Wapping Legal Observers are a of lawyers support for demonstrations and protests; legal support and who have been monitoring the policing of demonstrations The following key observerations have been cor- advice for local groups. stage. The Government subsequently amended some of group incon- outside the News International Wapping Plant since the roborated and are regarded by the as 5. Analysing and advising on the new Public Act. the clauses in the Bill which had been heavily criticised in trovertible: Order the Submissions. The Submissions are summarised in this beginning of the dispute. 6. Advising on the legality of labelling in supermarkets. group o The manoeuvres adopted by riot police were aimed at issue of Socialist Lawyer. Twenty-frve members of the attended the 7. Liasing with COSAWR re immigration problems of war anniversary demonstration on Saturday 24th January. dispersal and incapacitation rather than arrest. There was resisters in the U.K. defuse those We are in the process of preparing a detailed report on the no attempt to the situation by arresting 8. Considering private prosecutions against companies primarily SEX DISCRIMINATION way the demonstration was handed by the police. This is individuals responsible for the violence. involved in sanctions busting and exploitation of o natural CAMILLA PALMER, working in conjunction with the an interim report which aims to provide an outline of the The dispersal manoeuvres employed by both riot police resources. Women's Committee, drafted the Society's response to the most important points emerging from the written accounts and mounted officers were extremely dangerous in that changes in the law proposed by the Equal Opportunities ofthe observers. there was insufficient space available for the densely THE INTERNATIONAL LAW SUB.COMMITTEE of the group packed crowd to disperse. The ACPO guidelines clearly Commission in its consultative document called "Legislat- The members are unanimous in the opinion will be responsible for: policing tactics provocative, generalisation made ing for Change?" that the were unlawful and state: "A can be about all dispersal 1. Exposing the international law aspects of South Afri- this nature; unnecessarily violent. A thorough public enquiry is essen- tactics of that they are only a viable option can attacks on frontline states. tial to avoid any recurrence ofthe events 24th when the hostile crowd has somewhere to disperse to ofsaturday 2. Campaigning for British adoption of UN Decree No. L NOTTINGHAM SOCIETY OF rapidly. would be quite inappropriate a January. It to use such and recognition of UN Council Resolution on Namibia. manoeuvre against a densely packed SOCIALIST LAWYERS A SUMMARY OF EVENTS crowd." 3. Campaigning for recognition of prisoner of war status o clear breach of the ACPO guidelines of The Nottingham Society of Socialist Lawyers is a new The March In on the use for captured freedom fighters. truncheons and batons many demonstrators were deliber- organisation which has applied to become affiliated to the The frrst marchers left the Temple at 5.00 pm and took a 4. Publicising and exposing the situation in Namibia and ately struck on the head instead of around the arms, legs Haldane Society. Anyone living or working in the Notting- little over two hours to reach Wapping. There was an breaches of international law. and torso. large number sustained ham area who is interested in its activities should contact unusually low police presence and no incidents were A of demonstrators 5. Liaising with other international organisations re legal serious head injuries. The guidelines BARRIE \ryARD c/o Hawley & Rodgers,2 Clarendon recorded. It is estimated that 25,000 people took part. further stress that issues ofapartheid. (0602) the truncheon should primarily be used for self-protection, Street, Nottingham, NG15JQ. Tek 419772. police but on this occasion attacked demonstrators with THE POLITICAL DETENTIONS, TRIALS AND truncheons attempt to frighten disperse the in an and PUNISHMENTS SUB.GROUP will be responsible for: HOUSING RIGHTS crowd. BILL 1. Making links with the new Democratic Lawyers Asso- o Mounted police were used prior The HOUSING RIGHTS CAMPAIGN is looking for without warning. The ciation being set up in South Africa. ACPO guidelines state that help in drafting the Housing Rights Bill. Any housing "a warning to the crowd 2. Challenging established ideas of South African and should always be given before adopting mounted dispersal lawyers who can give some time please contact LES Namibian systems, especially the myth of an independent BURROWS at SHELTER on07-2530202. tactics". Rather than a slow approach, to enable the crowd legal system.

2 3 3. Focusing on political trials and executions in South During 1984 the Council sought to maximise the finances Council. In order to maintain political credibility the Africa and Namibia. Disqualification of available to it by increasing its resources from Central Government had to be seen to be taking a harder line in 4. Campaigning on and providing solidarity to detained Government. In the frrst halfofthat year representativea 1985. The Councillors, however, recaÌled that in 1984 their lawyers in South Africa and Namibia. from the Council held a series of meetings with Patrick negotiations had taken place against a series of public PUBLIC MEETING the Liverpool City Jenkin the then Secretary of State for the Environment in statements that no more central funds would be made The Group will be holding a large public meeting on an attempt to find ways to relieve the severe financial available. The Councillors were therefore confident that "Justice in Southern Africa" at 7.00 pm on 30th April Councillors: crisis which the city was facing. In that year the Council when the time came the Government would honour the 1987 in the MacGeagh Hall, Council of Legal Education, set its rate on the 11th July. The District Auditor took no promises which it had made in the previous year. They Gray's Inn Place, London W.C.l. The meeting will be action against them. At the end of June 1984 Patrick decided to defer making a rate until they could be more chaired by Tony Gifford and speakers will include The Real Issues Q.C. Jenkin agreed to increase allocations of Government certain about the scale of Government funding which they Geoffrey Bindman and representatives from SWAPO and resouïces to Liverpool for the frnancial year 1984/5. would receive. the ANC. Oathe By the time of publication the House of Lords will have 29th June he wrote them a letter setting out the details, ín In the event negotiations were still proceeding over judgement MEMBERSHIP given upon the appeals of 47 Liverpool City it he expressed his hopes for the frnancial year 1985/6 in items of the Urban programme fund up until June 1985. Councillors against a decision to surcharge them on the On the 5th/6th June 1985 the Government informed the Anyone who would like to join the Group shouìd contact the following terms: grounds of wilful misconduct. The consequence of such a ADRIENNE BARNETT at 336, Harrow Road, London "I can give you an assurance that I wÍll do my very Council that there would be no further negotiations. A grave. The Councillors be W.9 2HP or telephone her on 0l-430-7744 finding being upheld are will best to insure that allocations to Liverpool next year number of the Appellants then requisitioned a special ..{qËæ¡ jointly and severally liable for the sum of f.106,103. . . . will enable the Council to make positive progrese Council meeting which met on the 14th June and set a Accordingly some of their number will face bankruptcy. in dealíng with the City's commitments and the rate. During the months leading up to June the Council Moreover they will all be disqualifred from holding offrce in resources available to you." had put in motion its normal budget making procedures. local government for five years. Reports concerning the l, Budget summaries for all the committees had been alleged antics of Liverpool Councillors are commonplace in .s å, prepared and were under consideration during the course the media. However, the issues which underlie the of April and May. surcharge and subsequent appeals remain largely unre- Before the hearing in the Divisional Court each of the 47 ported. Appellant Councillors filed an affidavit in which they On the 6th September 1985, Mr McMahon, the District deposed to the fact that they had honestly and genuinely Auditor for Liverpool, issued a certificate under the believed that they had at least until the 20th June before provisions of the Local Government Finance Act 1982. they were obliged to make a rate. The signifrcance of the He certifred that the sum of f106.103 was due from named 20th June was that it was the date by which the Council Councillors as being the amount of a loss or deficiency had to send out notices to allow ratepayers the opportunity caused by their wilful misconduct. to pay their rates by a series of ten instalments. This date had been drawn to the Councillor's attention in the reports Wilful Misconduct before them from their officers and from the District Auditor in both 1984 and 1985. Aside from the 20th June, The wilful misconduct upon which the District Auditor the Councillors were advised by their own officers that relied was the Council's delay in setting a rate for the there was no obligation upon them to set a rate by a financial year 1985/6 until the 14th June 1985. The specific date. They were told that they could lawfully defer Councillors have challenged this finding at each stage of setting a rate beyond the commencement of the financial their appeal. At that time there was no statutory provision year provided that they had reasonable grounds for doing Rent Decontrol by requiring a local authority to make a rate by a specified so. This legal position was confirmed by the judgment date. The Councillors argued, therefore, that to be found given by the then Woolf J. in R v Hackney B.C. ex parte guilty of misconduct they must be shown to have acted in Fleming on the 16th 1985. MORNING STAR April Ministerial Order breach of their discretion as to the timing of the making of The Councillors stated that, in the light of the options NICK BLAKE on behalf of the Housing Sub- a rate. This could only be the case if they had made a they faced at the time, they believed that their decision to decision which was so unreasonable that no sensible defer committee issued the following Press Release on In 1985 the severity of the social and economic was a reasonable one. The only advice they had 5th February 1987: Councillor in his or her right mind, applying him or herself received which had identified an earlier date came from to the facts in question could have arrived at it, in facing the City of Liverpool had increased. The The Haldine Society of Socialist Lawyers today strongly had been shocked to discover at the end of 1984 Mr McMahon, the District Auditor. He wrote to the criticised two Ministerial orders laid before House occordance withWednesbury principles. It was accepted by Council the of capital allocations for 1985/6 were in fact to be telling them that they must make a rate by the Commons last night that will have damaging effect on the both parties that the correct definition ofwilfulness in this latest at The Councillors considered that they had a the end of May. The Councillors considered this principle of rent control. context was doing something knowing it to be wrong or report and took the view that the District Auditor had one options. They could cut jobs and/or services, In order the Government have abolished the being recklessly indifferent as to whether it was wrong or misunderstood the Fleming case, the 31st May being the provisions whereby an increase in a registered rent has to high increases in rents and/or rates, or attempt not. date which Woolf J. had identifred as being the latest date be phased over two years; when the order comes into force further funding from Central Government. The for Hackney Council in the particular circumstances of the whole of a rent increase will have to be paid all at once. The Facts was obliged to take into consideration its various statutory Previous legislation from this government had already duties regarding, for example, housing and education. It that case. reduced the rent phasing from over three years to two. also had to consider its common law duties owed The Courts have rejected the Councillors' written All the Councillors surcharged were members of the both to The second order applies to London, and encourages population of Liverpool and to its ratepayers. assertations ofgood faith and reached the conclusion that Labour Group. In May 1983 the Labour Party gained an the at large landlords to use the new shorthold tenancy, where tenants The Council had already implemented stringent financial they had conducted a political battle with Central Govern- have no security previous overall majority of seats upon the Council, following a of tenure, by abolishing the controls upon its spending. In the exercise of its political ment, ignoring their statutory duties and obligations. requirement that shorthold tenancies could be number of years of Liberal rule. In 1984 they increased only judgment the Council rejected the frrst four options. In granted after the landlord had registered a fair rent. that majority. They were elected upon a political platform deciding maximise resources seeking London had previously been exempted from these provi- which included the defence of existing jobs and services to its by way of further assistance from Central Government the Council sions because of threatened protests from Tory MPs in the and the refusal to impose large increases in rents or rates had mind their success of the previous year and the light ofthe astronomical levels oflondon rents. to compensate for cuts in government grant. in The Society frnds not ony the underlying principles promises that had been held out to them at the time. Loss behind the orders, objectionable leading as they do to a No one underestimated the size of the problem which The judgment of the Divisional Court and Court of gradual dismantling of the Rent Acts that have protected they were facing. The scale of Urban deprivation existing Appeal emphasised the fact that the Government had It is important to highlight the nature of the alleged loss telants from misery and exploitation since 1915; what is in the City has been iniversaÌly acknowledged. Unemploy- made it clear earlier in the year, in a written answer to a which the misconduct was said to have caused. also disturbing is that changes of this sort should be made ment was at one of the highest levels in ¡he country and Parliamentary question, that there would be no scope for In a written Parliamentary answer in March 1985 the by Statutory Instruments rather than an amending Act of council rents were already the highest in Britain. Liver- the negotiation of further resources to local authorities. Government had announced that it would withhold pay- Parliament that would give a opportunity the full for pool was suffering from some of the worst housing The Councillors regarded this as mere political posturing. issues to be canvassed and those concerned housing ments'of Housing Benefit subsidy and Crown contribu- with conditions in Europe. The Group's problems were previous year Government to make representations Laboug In the the had suffered humu- tions (paid in lieu of rates of Crown property) to Councils to the Government. inherited a defrcit This is an inauspicious start to this government's compounded by the fact that they had liation and criticism at the hands of its own supporters pending the fixing of a rate. Payments to Liverpool were contribution to the International year for the Homeless. from the previous administration. when it had been perceived as "giving in" to the Liverpool withheld in accordance with this announcement. They

4 5 were subsequently made following the setting of a rate. its merits. A majority of the Court of Appeal found that the The loss which formed the sum certifred was a purely defect had been cured by the subsequent hearing. The notional flrgure. It represented the loss of interest which alternative approach adopted by Woolf L.J. was that there the Council would have earned on these sum had prompt was no unfairness to the Appellants if one looked at the payment been made. That is the only loss which the delay statutory procedures as a whole. in making the rate in 1985 was alleged to have caused. At The House of Lords judgment upon this issue will have each state oftheir appeal the Councillors argued that the great bearing upon the future procedures that are adopted necessary causal relationship between the alleged loss and at Local Government audits. They may also contain wider àny misconduct was missing since the loss resulted from a public law impÌications for other statutory decision mak- purely voluntary act on the part of Central Government. ing bodies. This contention was rejected by the Courts. In conclusion

In their original representations to the District Auditor the Councillors summarised their position in the following way: uln these matters, Members of the Council have, all A few days after the demonstration former judge of the found these requirements to have been proved where the throughout, acted in good faÍth and after taking Constitutional Court, the highest court in the land, conduct has amounted to nothing more than a sit-down advice from theÍr ofÍicers. They have never at any Martin Hirsch, praised the judges, saying that he wanted demonstration. time sought to avoÍd their duty to make a rate, or to embrace every one of them. But even there is a paradox. One ofthe regularjudges in Íntroduce unnecessary delay in its discharge. They At the end of February the prestigious weekly Die Zeit charge of the Mutlangen base cases, Judge Wolfgang have at all tÍmes had at the forefront of theÍr mínds carried a full page announcement in support ofthejudges Krumhard, has suddenly started acquitting the defen- the Ínterests of the citizens and ratepayers of Liver- stand. It was signed by 554 judges and prosecutors! deants that come before him and although the prosecution pool ìn seekíng to maxÍmÍse the resources available Television coverage followed and a poll among the popula- is appealing him, in the one case that has reached appeal prosecution to fr.nance sewÍces, and to make improvements in the tion showed that 647o of people asked supported the the threw their hand in. judges'right had. Why is it that our judges are not on the streets, LÍvìng conditions of LÍverpool people. doing so, to demonstrate in the way they In upholding the same law as their German brothers and they claÍm that they were entÍtled to exercise that Judges like Eckart Rottka, a civil judge in Berlin, are sisters? Why is it that there is as yet only one member of d.egree of discretion whích, as elected representa- now awaiting a summons to the Court at Schwä bisch the Lawyers for Nuclear Disarmament who is a former tÍves, the law allows them - and whìch the Courts Gmünd for Nötigung (the offence of intimidation). They judge? When he joined he said he would feel "ashamed not have frequently protected from undue interference will be joining hundreds of other defendanùs charged with tï bõlong" but why don't others feel like that? Is it because by outsÍde bodies." the like offence and for the same conduct commonly being the stance you take on the nuclear issue is consistent with The sentenced to 20 days. If convicted the judges can expect the view you have of power, the role of the state and your Fairness surcharge and consequent disqualification from office of the Liverpool City Councillors represent yet another disciplinary proceedings but are unlikely to lose their class and the function ofjudges? assault upon local democracy in this country. posts. Those interested in further information should get in It is beyond the scope of this article to discuss in detail the They will have become involved in a jurisprudential touch with Judge Eckart Rottka, tel: 010 49 30 824 Cases referred to: jurisdictional arguments advanced at each appellate stage argument that is taxing the courts at the moment. To 6344. and which occupied the bulk of the hearing before the prove the offence the prosecution must show that their Those of you who are not may become members of The 1. Associated Provincial Picture House Wednesbury House of Lords. They cpn be summarised quite shortly. v conduct involved violence (Gewalt) and that it was Lawyers for Nuclear Disarmament by writing to Owen Corporation (1948) 1 The District Auditor wrote to the Appellants on the 26th K8223 reprehensible (verwerflich). The courts have consistently Davies at 2 Garden Court Middle Temple, London EC4. 2. R v Hackney B.C. ex parte Fleming (unreported) June 1985 notifying them of his intentions to issue a certifrcate against them. He set out a summary of the facts selected members of the press and media in an effort to upon which he relied. He invited them to reply to these Heather Williams publicise what we see as a potentially damaging piece of matters by way of written representations. The Council- and Mark Studdert legislation. This article summarises the main areas for lors replied by way of a collective written response on the concern, as set out in the briefing, and the changes which put 19th July. They had drafted the document themselves Owen Davies were forward. with the help of their offrcers. In a covering letter they Evidence expressly reserved the right to add to or develop their The Criminal submissions. On the 6th September 1985 District the JudgesvThe Part II of the C.J.B. has recently completed its Committee Auditor issued his certifrcate surcharging the Councillors. Justice Bill: An stage in the Commons largely unaffected by proposed In his accompanying Statement of Reasons he rejected the Bomb Opposition amendments. If these provisions are passed explanations advanced by the Councillors saying that they Attack Upon two fundamental safeguards in the conduct of criminal were not the real reasons for their delay. trials will be undermined to the point of emasculation. The Appellants argued that they had been denied the Imagine various senior members of the Crown Prosecut- First, the right to insist on the attendance ofwitnesses at opportunity to have an oral hearing before the Auditor, ing service and some judges congregating outside the Fundamental trial in order to cross examine them so as to test their prior to him issuing his certifrcate. The Appellants placed Upper Heyford airbase protesting against the stationing of evidence in chief has been translated into a Judge's nuclear bombs on British soil with a symbolic discretion. Second, the hearsay rule in relation to that entitlement upon two footings. Firstly that they had a blockade. Liberties Imagine then, after their arrest and charge, Law documentaly evidence has been effectively removed, so right to such a hearing in any event, giving the invariable a retired Lord praising the protesters for what they did and that both first and second-hand hearsay evidence is now practice of District Auditors to offer oral hearings which upholding the lawful basis of their act in the media. Could The Criminal Justice Bill ("C.J.B.") currently making its admissable. The inherently unreliable nature of hearsay stretched back to the previous century. Secondly, that it happen here? way through Parliament contains a mixture of dangerous evidence is ignored. even if no automatic right existed, the entitlement arose in It happened in Germany, outside an American nuclear and ill thought out ideas. Some of its proposals have The provenance of this part of the Bill is the Roskill this case once the District Auditor was minded to reject the base at Mutlangen. On L2th January 1987 about 25 already attracted widespread criticism; in particular, the Report on fraud trials, but it also reflects an extension of truth of their written explanations. judges, from almost every state in the Federal Republic abolition of the Defendant's right to peremptory chal- the rules of admissability introduced by Section 68 of the In the Court of Appeal, Lawton L.J. accepted that the demo langen, expressing lenges and the Attorney General's right to refer sentenc- Police and Criminal Evidence Act 1984 which made Appellants had been treated unfairly. Dillon L.J. was of a their the protesters that ing questions to the Court of Appeal. The crime sub- documentary evidence admissable as long as the maker committee of the Haldane Society many of similar view, although he did not frnd it necessary to had members of the considered that was dead, overseas, or unfindable and was under a duty to the C.J.B.'s provisions posed a grave threat to the compile a record. The effect ofClauses 14, 15 ex¡íress a final conclusion. Jud and 16 ofthe One of the banners on display a judge kicking Defendant's right to a fair trial. Accordingly, the Commit- Bill is: The Respondent disputed the existence of any unfair- showed a bomb away with the legend; In the Name of the People: tee prepared a detailed briefing, highlighting the areas 1. To take away the restrictions ofSection 68 ofPace; i.e. ness. He argued in the alternative that any unfairness getrÍd ofit", which appeared to be of greatest public concern and no longer necessary for the maker to be dead, overseas etc. which had occurred at this stage rvas cured in the The judges declared they had an especial responsibility setting out proposed amendments. The briefing has been 2. To extend admissibility to documentary evidence "re- Divisional Court, who held a complete re-hearing of the as judges for the preservation of the constitution and extensively used by the Labour Group on the C.J.B. ceived" as well as "made", as long as this was "in the issues. The Appellants'response was that such unfairness international law. They declared the deployment of the Standing Committee in its efforts to mount a challenge to course of any trade, business, profession or other occupa- could only be cured by a hearing ofthe matter de novo on nuclear weapons against national and international law. these provisions. We have also circulated submissions to tion or a holder of any paid or unpaid office"; i.e.

6 t Jurisdiction second-hand hearsay; and Confrscation injury or its aftermath. 3. The new provision will simply 3. To make it a general rule that all documentary Clauses 23 and 25 of the C.J.B. remove the right of trial by encourage assessments to reflect subjective prejudices evidence is admissible unless it is not in the interest of jury for offences of driving while disqualified, taking a Clauses 46-70 of the C.J.B. are designed at extending the rather than an objective quantification process. Indeed, it justice provisions that it be admitted. There is an exception to the motor vehicle and common assault and battery. Clause 24 confiscation contained in the Drug Traffrcking is so widely drawn that it may operate unjustly against general 17 statements Offences Act 1986 rule of admissibility in Clause for increases from f,400 to f2,000 the threshold below which to the fruits of other serious crime. It is any person whose lifestyle or background might be "prepared for the purposes of pending or contemplated offences of criminal damage are only triable summarily. accepted that this objective is desirable in principle. deemed unconventional as well as against those with However, criminal proceedings or of a criminal investigation" for The right to trial by jury is a fundamental one that there should be grave concern at the breadth of unrelated past criminal records. example officer's note books, witness statements, com- cannot be overriden by considerations of administrative the new powers and the lack of attendant safeguards for plaint forms etc. Such documents will not be admitted convenience and cost, as pleaded by the Government. those who may be subjected to their draconian effects. Juries unless in the interests of justice, having regard to the These are inbuilt advantages to the Defendant oftrial by In the Standing Committee the Government continued likelihood of the accused being prejudiced by its admission. indictment; representation by Solicitor and Counsel, adv- to misleadingly portray the provisions as applying to Clause 83 abolishes the defendant's right to peremptory allows gangster's An additional concern is Clause 19 which in anced disclosure of the prosecution case and the right of "godfather types" and "the moll". Refer- challenge. At present a defendant may challenge a person ences expert reports as admissible, whether or not the review ofthe refusal oflegal aid by the Law Society. The were made to mansions and porsches. 1. The maximum of three jurors in this way. give reality attends to oral evidence, and without the safeguards proposed alternations in the criminal damage threshold is is very different. This provision should be totally opposed. Thus far the prepared proceedings. The point afforded to documents for criminal particularly dangerous given the rough and ready system starting for concern is that confiscation orders Government have not produced a single shred of evidence may property The Defence will lose their right to ensure, for instance, a employed by most magistrates for reckoning the value of be made over any held by a Defendant, and to support their contention that peremptory challenges examine not property forensic expert's attendance in order to cross alleged damage. The clauses were agreed to in the simply that which can be shown to represent produce perversejudgments. This reform was first canvas- jury. proceeds before a The potential import should not be under- Standing Committee on a vote. the of crime. The Government have confirmed in sed following the Tory back bench outcry over the use of which standing committee stressed, especially in view ofthe serious cases often Clause 29 empowers the Attorney General where he that "aII the Defendant's property peremptory challenges in the Cypriot spy case. However, turn on forensic evidence the Birmingham, Guildford considers passed wÍIl be subject to confiscation", 2. There are no - that a sentence by the Crown Court no one has challenged the correctness ofthe verdict in that and Woolwich bomb trials come immediately to mind. It is raises a question ofpublic importance, to refer the case to statutory criteria laying down guidelines as to how this case. The Government and its supporters have hit upon presence extensive power now up to the Judge to rule whether that expert's the Court ofAppeal. The Court can then give its opinion on should be exercised. Moreover, the the concept of "randomness". They contend that peremp- measuring threshold is required one can foresee a Judge the the principles to be observed in the sentencing of similar amount above which the confiscation provisions tory challenges offend this concept. This amounts to no - public purse may operate Defendant's interests against the cost to the cases in the future. is f,10,000. Again the figure of f10,000 may more than a misleading red herring as juries have never be reached by taking into account all the Defendant's been selected and empowered in a truly random way. The assets and not only the proceeds of any offence. Far from Government originally stated that it would await the the provisions being an onslaught upon serious organised outcome of a survey by the Crown Prosecution Service on crime, they may apply to any defendant who has assets of the use ofthe right to challenge. In the event, this proposal f10,000 or more. The Society has proposed that confrsca- was introduced before the results of the survey were tion be limited to assets which are the proceeds of crime. known. The position parties of third is also worrying. Assets The more important consideration is that a defendant received by parties third may be confiscated if they were should feel that s/he has had a fair trial. Such confidence acquired gift. places by way of a This innocent members of will not be inspired if a person is made to face trial at the a defendant's family substantial jeopardy. proposed in We hands ofpeople who s/he does not believe to be capable of amendments limiting the confiscation of such assets to appreciating and judging their case fairly. The comment is situations where the recipient was aware of the origin of particularly apposite in cases concerning young black the asset and no substantial hardship would result. The defendants. This proposal can only add to a diminishing Government conceded that the former was a relevant respect for the administration ofjustice in this country. consideration which the Court should take into account but refused to place other criteria upon a statutory footing. Children The C.J.B. provisions empower the High Court to make enforcement orders, charging and receiving orders, in In Clause 87 the Government extend the duty of parents/ respect the property referred ofall to above. The orders are guardians to pay the frnes imposed upon young offenders. made upon ex parte applications by the prosecutor. The The Government's stated belief is that parents must be orders may be made before criminal proceedings have made more aware of their responsibility for their children's even been begun against person and a they may be behaviour. The provision pays insuffrcient regard to enforced before such proceedings have been concluded. A families who are unemployed to earn low incomes. Further defendant who is ultimately acquited may frnd that he has it perpetuates the Tory myth that an effective form of been bankrupted by the Court in the interim. parental control always exists within a family. It is of the This is e in the light another Government attempt to preserve and encourage ch the C.J'B' meagre co ProPoses. the existence of the nuclear family. This emphasis neglects A dèfend acquitted may have the responsibility which children ought to take for their compensa- suffered frnancial ruin but he is only entitled to own actions. tion ifhe is able to show serious default on the part ofthe prosecuting authorities default Reþrences able to wltt Ue on the applicant 1. Hansard, Standing Committee F, Criminal Justice Bill, sáme ' would give The provision establish the are Twenty-second sitting, ps. 638-639 ofcalling an expert to live evidence. is superfluous as the Court of Aooeal We have proposed already has the power to issue guidelines senteñi:ing not encompass mere errors ofjudgment' 2. Hansard, Standing Committee F, Criminal Justice Bill, Though this part of the Bill was born out of the Roskill on to all instances and indeed regularly makes use power. The that the right to compensation be extended Twenty-third sitting, p.662, Mr Douglas Hogg Report which addressed itself specifrcally to fraud, these of that suspicion upon proposed power would offend the doctrine ofthe where the applicant has not brought 3. R v Criminal Injuries Compensation Board ex parte changes in the rules ofevidence will apply to all offences. separation of powers as it allows a Government, through its chief law him/herself. Thompstone Our submissions elicited a response from the Govern- officer, an opportunity to affectjudicial sentencing policies. R v Criminal Injuries Compensation Board ex parte Grave ment, although still no clue as to the justifrcation for It is all too easy to imagine an Attorney General bowing to Compensation (1984) l WLR 1234 extending these rules to all offences other t}i'an"it would a campaign waged by the tabloid press under the pretext place injuries compensation seefiL u)rong to haue dffirent rules of euidence for different of acting upon "a question of public importance".It follows Clauses 7l-82 the criminal are to be offences". Yet the whole part of the CJB which precedes that judges become more susceptible to outside scheme up nd as such will of amend- the evidence section is busy instituting new procedures, pressures when they come to sentence and may welcomed. d a number offenders the powers and rules to deal with serious fraud as a special ultimately more heavily would other- ments to first being that sentence than they to victims of case. When viewed together with other parts of the Bill (in wise have done. prop od to extend particular, the removal of the right of peremptory chal- The Standing Committee debated this clause in the rape the lenge of jurors), it amounts to a package which may highly charged aftermath of the controversial sentence Ct endorsement to Princi- regard gravely prejudice the fair trial of a Defendant. The meted out in the Eaìing Vicarage rape case. A Labour award if, having life, or practical effect of these sections when taken to their amendment to restrict the responsibility for the issuing of cter, "his" way of extreme would be that the prosecution opening speech, guidelines to a committee of senior members of the gaged at any time, theY based on statements and documents could become virtual- Judiciary appointed by the Lord Chief Justice was defe- consider it appropriate' ly the only evidence in the trial; live witnesses being ated. A Tory attempt to give the prosecution a right of In the past the Courts have held that an award may be has no dispensed with so long as the circumstances comply with appeal against sentence aìso failed. The Clause was agreed reduced even though the applicant's character occurrence of the the Act. to on a vote. ascertainable bearing upon either the

8 9 Stephen Sedley A less publicised example of the way in which the discretion. One asks, was the result of the decision about appellate courts are y from interven- Mr. Swati any less serious? It is necessary to put it this tion while still purpo grand principles way because to ask whether a suffrciently serious injus- of judicial review is ton [198G] 2 All tice has occurred requires the decision frrst to have been Judicial Review: ER 941, CA, which concerned the refusal of a student judicially reviewed, and although Swati's was, the princi- grant to the daughter of an engineer living abroad. Here ple is designed to exclude judicial review in all future the regulations expressly confided the question ofdomicile cases. The Master of the Rolls explained the distinction in Sounding the to the local authority, but the local authority's reasons Calveley's case as requiring "exceptional circumstances" were evidently Wednesbury irrelevant, having to do which "by defrnition . . . defy definition", but which he does Retreat? entirely with whether the council would get their money on to define as circumstances which take the case outside back from the government and not at all with relevant the purview of the domestic appeal mechanism. This of matters of domicile and eduction. By a process of reasoning course was not Calveley's case. Indeed it is not an example ?I¡is Ís the text of a talk which Stephen Sedley Q.C. verging on the absurd, the Court ofAppeal held that the of exceptional circumstances in the discretion context at gave to a public meetìng of the Haldane Society in mere say-so of the chairman that he had considered all the all, but of circumstances making the exercise of discretion February 7987. circumstances of the case was enough to rebut the inappropriate or irrelevant, because the Master of the Wednesbury allegation. They proclaimed grandly that Rolls' description is of circumstances where there is no The Post-War Growth of Judicial Review judicial review "is a process which falls to be conducted with all the cards face upwards on the table, and the vast For the purposes of what want to consider in this I majority of the cards will start in the authority's . . . judicial hands paper, it is useful to see the post-war growth of lffhat is discreditable is a reluctance to explain fully what review as a process ofentrenchment ofjudicial control over has occurred and why" and proceeded to let offthe hook local and national administrations least, those - - at a local authority which had broken all these rules, administrations which have been perceived as threatening remarking that whether a bare denial would do to to local government the hands-offprinciple is an important I (ÂHnË( social or constitutional norms and values. In a series of depended on each case, a element of political pluralism, recognising that a decision i the facts of familiar incantation post-war cases the courts put old doctrines to new uses, of no discernable relevance. HS driving government out of practically all its traditional of an elected local authority is not unreasonable merely judges I refuges apart from Parliament, The Northumberland because ministers or don't like it. It accords to elected local It is impossible not to note the difference between these case in 1952 proclaimed there was no refuge in non- authorities a broad band of political and administrative pusillanimous decisions and the grand landmarks of justiciability; Ridge v. Baldwin 1964 proclaimed no choice. in judicial review in the post-war period. What has become of refuge behind closed doors; ex parte Lain in 1967, many The principle does not apply with such obvious force to 44 Megaw J's judgment in Poyser and Mills' Arbitration, years before GCHQ, proclaimed no refuge the royal merely administrative decision-making. But the question ,L in where an extensive set of reasons was struck down ê prerogative; Anisminic in 1969 proclaimed no refuge in whether what was done was lawfully done still accords a e because it was unintelligible, that is to say did not amount privative clauses; the Bromley case 1981 proclaimed large measure of fact-frnding discretion to oflicials where in logically to a set of reasons? And what has become of the .Æ that there was no refuge in mandate, at least the legislative provision gives it to them in the frrst place. a an electoral House of Lords' decision in Padfïeld that a minister for left wing councils; O'Reilly v. Mackman in 1982 told It does, however, also maintain the proper supervisory role (Labour as it happens) who gave no good reasons could be us frnally that there was to be no refuge in writ actions. of public law. What is happening, however, is that in presumed to have had done? I doubt whether they have The consolidation of the judicial power to intervene in signifrcant classes of case the courts are adopting a {mr been lost or forgotten; they will be used again by the courts and control almost every aspect of national and local non-interventionist policy amounting to abdicatron but, when they are needed. But for the "social problem" cases administration has coincided with a strong national I stress, only in certain frelds. - nPotr¡q5 those perceived by the left as most intimately connected Da.r't rr goverriment which has shown signifrcant and radical new 6¡¡çqT ,, Pulhofer (1986) 2 WLR 259 not only did the House of with- human rights the courts are shutting the doors characteristics. Firsú, it has taken over the role of In must be and leaving them to- the mercies of often arbitrary and confrning and controlling local government, pushing the Lords refuse to hold that existing accommodation adequate for decent human habitation before it excluded hostile administrations. courts into a secondary and supportive role. Secondly, it applicant from rights under the Housing (Homeless true alternative recourse. Once again, the development of has adopted an aggressive mode of departmental and an Persons) Act; they insisted it was for the local authority, I have instanced housing for the homeless and grants for the law seems to be depending more on who is challenging ministerial implementation of policy, to the exclusion of principle. not the court, to judge what amounted to accommodation, students. The most scandalous of all, however, at least in what than on any consistent From Ridge v. constitutional and sometimes legal propriety. Thirdly, it post-war years, even though the statute quite plainly did not make the terms of scale, is the judicial attitude to immigration cases. Baldwin onwards in the as well as on has openly and increasingly resented judicial interference policemen local authority the judge of this as it did of other things. earlier occasions, on disciplinary charges have when its opponents have invoked principles of judicial The desire to stifle immigration challenges was the evoked degree solicitude And Lord Brightman went on to say: a of from the courts which may review developed in different political circumstances and reason for the abortive recent attempt to legislate against also be audible but is not usually visible in their decisions arguably for different political purposes. For their part'the "On the facts in euidence, it is in my opinion plain thøt the the renewal in the Court of Appeal of applications for leave on the rights and remedies of the homeless and penniless. higher judiciary have not welcomed the task of policing a council were entitled to find thøt the applicants were not refused by the Divisional Court. This failed, largely In passing it is worth remarking that this trend is being Conservative government. It presents them with a series horneless for the purposes of the Homeless Persons Act because ofjudicial concern that the baby (a good commer- mirrored in employment law, another area regarded by of invidious choices between expediency and consistency. because they had øccotntnodation within the ordinøry cial or council-bashing case) would go out with the bath the higher judiciary as trivial except when it involves The frrst-instance judges who take the Crown Offrce list meaning of that expression. water. Instead the Divisional Court and Court of Appeal and pickets. lt unions The Trusthouse Forte case attemp- are, at present anyway, laudably showing more interest in My Lords, I am troubled at the prolific use of judiciøl have now set about constructing a non-interventionist ted to consign the legal character of a worker's contract to consistency than in expediency. reuiew for the purpose of challenging the perforrnance by I policy for immigration cases, providing a jurisprudential the pit of unappealable fact. There has been a successful In this situation the still growing volume of judicial locøl authorities under the underpinning for rejection ofdozens of their functions Act of 1977. ¡¡ the weekly ofapplica- drive to relieve industrial tribunals of the need to give review applications is being met with a series of new Pørliament intended the local øuthority to be the judge of tions for leave. Swati t19861 1 All ER 777, CA, is at one reasons in some cases and to give intelligible and fuÌl policies and doctrines designed to reduce the flow ofCrown fact. The Act øbounds with the formula when, or if, the level simply a refusal of the court to interfere with reasons reasons in all cases. These moves seem to me to be part of Ofïice work and to enable the judges to be more selective housing authority are satisfied as to this, or that, or haue so bland and jejune that they are unintelligible, in this the endeavour to keep the courts out of the business of about who wins (and whether the victory is to be pyrrhic or reasotu to belieue this, or thøt. Although the action or case the immigration officer's statement that "I am not protecting individual rights, at least those at the bottom of substantive) and who loses. Their principal tool is discre- inaction ofa local authority is clearly susceptible tojudiciøI satisflred that you are genuinely seeking entry only for this the social pile, and to clear the decks for the heavy tion, in two distinct forms: reuiew where they høue rnisconstrued the Act, or a.bused Ìimited period", which of course is not a reason but a commercial litigation which helps to keep the City at the FIRST, the law is trying in certain specifrc area to sanctify their powers or otherwise acted peruersely, I think that decision. On another level, the case elevates to an centre of world finance and trade, together with the and immunise the discretion of the administrator or the greøt restraint should be exercised in giuing leøue to insuperable bar the discretion to refuse leave where there occasional big bang needed to keep dissent in its place. body which is attacked. proceed ess is o are alternative remedies (in this case appeal to the In the last few years ministerial noises warning the SECONDLY, the judges are trying to develop the concept despera in the adjudicator and Immigration Appeals Tribunal). courts to get their hands off central government, with its judicial and use of discretion in order to refuse leave to present t is not, One is entitled to wonder what is the difference of growing casualty list in a string of cases of abuse of power move or to withhold relief when a case has been made out. in my opinion, appropriate that the remedy of jud,iciøI principle between Mr. Swati, held in detention while his which a still extant regard for principle has produced from, reuiew, which is a discretionary remedy, should be møde right to enter was litigated and liable to summary removal in particular, the first-instance courts, have started to be Sanctifying and Immunisins the Discretion use of to rnonitor the actions of local a.uthorities und.er the if he failed, and P.C. Calveley, who was actually half way paralleled by some appellate judgments. In 1985, in ofthe ÄdmÏnistrator Act saue in the exceptional case. through exercising his alternative remedies when, with a proceedings brought by the GLC and ILEA against the The right of the administrative decision-maker to I express the hope tho.t there wilt be ø lessening in the domestic appeal pending, he came to the court to quash the Secretary of State for the Environment, Mustill IJ said: number of challenges which øre mounted, øgøinst local exercise an unfettered discretion is a principle as old as charges against him on grounds ofdelay, part ofwhich had ". . . The steps by which the e,nswers are reached often judicial authorities who øre end,eauouring, in extremely dfficult review. TheWednesbury case was itself a straight- been caused by his own application for judicial review. He inuolue the delicøte bøIøncing of considerøtions which o,re circumstances, to perform their duties under the Homeless forward example ofjudicial refusal to interfere with a local failed in the Divisional Court but succeeded in the Court of not susceptible to the reøsoning Persons Act with due regørd other housing formal øppropriøte to ø authority's decision about cinema licensing which had not fo| all their Appeal t19861 Q.B. 414 on the ground that the seriousness problems." court of law. The present case is ø good example. The infringed any principles of administrative law. In relation of the delay entitled him to the favourable exercise of structure of the Røtes Act is such thøt the Secretary of State

10 11 Paddy public has lost confrdence in its ability to do justice to O'Connor individual complaints. All the evidence to the Review is required to rnøhe judgments which are econornic ønd, In the case brought by the AMA against the Secretary of in shows that victims of religious discrimination should be for the Enviionment in 1985, Webster J. found that the widest sense, political in chøracter. Whilst ølways State allowed to pursue their claim to Industrial Tribunals just rnaintøining its duty to watch ouer the decision-mahing Employment as complainants in sex discriminatiuon cases can now do in process the n'Lust, we suggest, be be court careful not to the North. The FEA also has statutory powers to conduct a drøwn thereby into fields which are the concern of those formal investigation into a particular employers' practise. present elected to office. The case furnishes an example of Discrimination in The Agency consistently draws back from obvious frndings this risk." of inequality of opportunity even where the evidence is The innocent the naive be their and might casting minds clear. The statutory procedures are not observed and back to the Bromley case and wondering what the Northern lreland precise legal terminology is avoided. Vague unspecifred difference was. Mustill IJ went on: undertakings are obtained which are never effectively "... There is a danger that if this hind of enquiry is to that there had not been due consultation, overlooks the the Crisis and the enforced even when broken. It is even unclear how many become widespread, thele be impediment fact that public law is not concerned with the rights of will a reøl to the frndings of inequality have been made. proper of gouernment, abuse of to which the 'Worse conduct using the word in its widest app Power still, the FEA, a supposedly independent Applicants'rights or interests body, sense, with at the same time the dønger that the importønt app Impasse has allowed itself to be used by the British government in and role of judicial reuiew thereby become nly to their locus, not to relief' salutøry may are its attempt to discredit the'Macbride PrÍnciples'. These discredited." Why should the public have to observe an instrument In 1976, the British Government established laws and are gaining independent support amongst American busi- (1986) when has been invalidly made? And can the judge's institutions designed to combat religious discrimination in One also remembers the Nottinghamshire case it ness, unions and state legislatures, which directly or Lord Templeman refusal to quash it make any difference once the invalidity NI. The ten year record is now under close scrutiny by a 2 WLR 1 where both Lord Scarman and through share holdings have interests in NI. They are guidance, of the instrument has been found in the course of his statutory body the Standing Advisory Commission on warned that an allegation that ministerial politically embarrassing for London because are judgment? Likewise in the board and lodging allowance Human Rights (SACHR) instigated by the NI Secretary they especially where approved by resolution of Parliament, modelled on the Principles'for dealing with case, ex parte Cotton, Mann J. held the regulations to be of State. They have received much highly critical evidence 'Sullivan could only very rarely be argued to be Wednesbury South Africa. judicial review is ultra vires but was persuaded not even to make a both from within the North and outside. The Commission's unreasonable. One asks why. All The FEA's chairman has publicly criticised them and powers delegated and declaration to that effeõt. Again, can the refusal help the report will not be completed for several months. Yet the concerned with the exercise of one agency member flew over to the USA to oppose them. distinction role ofthe courts as enforcers as well as declarators ofthe government has already published a White paper on therefore approved by Parliament; the only Instead of promoting informed public discussion on the other law? Equality of Opportunity dealing with future strategy appears to be that one is ratified in advance, the question of 'affrrmative action' programmes, the Agency in principle, options. An examination of its act source, timing and retrospectively but where is the difference has assisted its paymasters in a cynical campaign to - principle also embrace instru- contents is rather instructive. particularly when the would confuse the principles referred to above with'quotas'and resolution and of ments which are subject to negative 'reverse discrimination'. The Agency is responsible for its believe, a single example The Problem which history does not record, I own faiìure to put affrrmative action into practise, a course actually being negatived by hawk-eyed Iues? The Van Straubenze report (1973) described religious critical to the Van Straubenze report. discrimination in NI as an: Over 6(N0 employees have sÍgned a declaration to uaffront and menace to societ¡t as a whole ... the promote and protect equality of opportunÍty. effect on The resulting Equality Opportunity Certificate is neces- Marx. of unemployment human dígnÍty and family The Use Of Discretion In The Granting of Updating life, the humÍIÍation that dÍscrimÍnation Ínvolves, and sary for the obtaining of government contracts. The FEA Relief the destructÍve effect that it may have on the whole grants the certifrcates and has the power to withdraw fabfic of socÍety, are such that Ít Ís essential that all them for conduct inconsistent with the declaration. This Wherp the courts do not either respect or abdicate to the There is much else that deserves consideration in this concerned. should. take posÍtÍve and effective action could have obvious serious economic consequences. The primary decision-maker, they retain not only a discretion freld. There is the problem of Section 31(6) of the Supreme to ensure complete equality of opportunity" (paras FEA has never once done this. Hundreds of millions of principle to grant or refuse leave (which is clearly much affected by Court Act 1981 which in my opinion enshrines a 84 and 113). taxpayers pounds have gone to employers with grotes- inverse quesly what I have been describing above) but also a discretion to of bad law, linked with what one can call the In the intervening thirteen years, the NI economy has imbalanced workforces subsidising and fueling grant or refuse reliefeven after leave has been given and a principle of public wrongs that the greater the wrong the collapsed and discrimination has flourished. The overall injustice. case of abuse of power has been made out against the less will be the chance of getting it righted by the courts. unemployment rate of catholics is double that of protes- It will perhaps come as an uncomfortable shock to had Respondent authority. The government argued in the CPAG case that they tants. Catholics also have greater experience oflong term those unfamíIiar with the depth of discrÍminatÍon in In principle when an instrument is found to have been deprived so many people of small sums of money over such unemployment and for those in work they are over NI to learn that of 26 District Councils only 7 have diffrcult unlawfully made, the court can strike it down by certiorari a long period that it would be administratively too concentrated in the semi and/or unskilled occupations. brought themselves to sÍgn even this vague declara- (with a consequent question whether this makes it void ab and expensive to trace and pay them. The health authority This pattern has persisted over the last fifteen years and tÍon of pfinciple. initio); or it can declare the instrument ultra vires but which evacuated New End Hospital before it had decided exists throughout the North even in areas of high The FEA is not exclusively to blame. It has only been judicial the date of refuse to strike it down; or it can hold that the instrument to close it escaped review because by employment. allowed very limited resources by the government - is ultra vires but refuse so to declare. Very little attention the hearing it was impossible to reverse the process. The The Fair Employment Agency (FEA) is the key f228,000 in 1984 and a staff of 14 (compared to the is paid at the moment to what Lord Diplock said in AMA failed because people were by now relying on a institution set up in 1976 to investigate and, at first f7million to the Commission of Racial Equality). In 1981 Grunwickv. ACAS (1978) AC 655: statutory instrument which in law should not have been instance to adjudicate upon individual complaints of only two of its staff were legally qualifred. Ad hoc advice "Where the støtutory authority høs øcted ultra uires any made and was arguably invalid. discrimination and the recruitment practises of estab- from outside solicitors is obtained and in-house legal person who would be øffected by its act if it were ua.lid is There is also a discernable trend among some of the most lished companies. The response of the FEA to this picture expertise is not developed. Even here, however, the judges quality normally entitled ex debito justitiae to haue it set aside, if powerful public law to ignore the and feel has been to deny that they have any current effective role Agency has failed to implement far-reaching improve- he høs proceeded by wøy ofcertiorøri, or to haue it declared the width of administrative law decisions by trying out the to play. Their eighth Annual report talks ofplanning for ments recommended by an outside expert they commis- the exercise ofdiscretion". uoid." merits ofthe issue as a guide to equal distribution of job opportunities "as the economy sioned to report in 1981. He actually distinguishes the discretionary character of To do so is, I would argue, contrary to the entire principle recovers, we can indeed effect little change ìn areas a declaration in a writ action: ofjudicial review that it is the procedure and not the result of ÍnequalÍty where unemployment opportuníties are question; but the trend points up the "If he has proceeded by way of an. øction for a declarøtion which comes in few". T}:e FEA is leading a retreat from the insight so ofjudicial the court may exercise its discretion to refuse the remedy on dangerous potential of the exercise discretion. clear in 1973 that discrimination is itself part of the vicious grounds oflaches or acquiescence . . ." O'Reilly's case has become a bed of nails because of the spiral or social and economic decline. r_ Instead some judges are moving towards the edge of a blurred and sometimes unintelligible distinction between ! precipice. Once it has been held that an administrative act public and private law; but the tangle may well force the The Record f:^rDAJ affecting others was done without power, not only is it õourts to clarify and possibly develop the principles behind contrary to the Grunwick principle to refuse it; it creates the distinction. It will not be surprising in the light of this negative and real confusion, since arguably the measure is void anyway. The appetite of the judiciary for power has not abated, judicial complacent approach that the FEA's record or individual This at least was Diplock's view, though for a rather and the grounds upon which review can occur complaints has been pitiful now fully and incompetent. different purpose, in Dunlop v. Woolhara Council continue to grow: legitimate expectation is In the frrst 236 findings it made discrÍmÍnation was is on case ofthe (1982) AC 158, where a planning decision had been made fledged; proportionality its way and in the acknowledged. in only 25 cases of whÍch four were in bíeach of natural justice: Glamorgan gipsies, though not articulated, has arguably overturned by the courts. "The effect of the føilure is to render the exercise of the arrived. Nowhere, however, is there a sign that our judiciary are capable of going down remarkable trail (planning) power uoid and the person complaining of the the The investigations and findings are reported in only the the Indian Chief Justice failure is in as good a position as the public authority to blazed by Supreme Court under briefest summary and anonymously, on average more time in history to h,now thøt this is so. He can ignore the purported exercise of Bhagwati, which has begun for the first than two years after the original complaint. The annual an active andoeffective instrument of the power. It is incøpable of affecting his legal rights." make the courts Reports reveal confusion over basic legal concepts and an justice powerlesss This, so far as I can see, can only mean it is void ab initio. for the and voiceless. inherent reluctance to reach critical conclusions. The

T2 13 paper is any recognition that every act of' The White Paper lacking in this procedures and recommendations, without actually either The second limb of the plan, is the speedy determination treated as a defeat for their discrimination should be enacting the Convention as a municipal statute or adopt- claims the early removal rejected claims. (DED) of and of The Department of Economic Development policies. ing the UNHCR Handbook into the immigration rules. Although the government have to admit that mode of the enormity of the claims authorship. They have always born responsibility There ís no conception of Unlike most countries who are signatories to the arrival is irrelevant when considering whether you âre a problem There is recognÍtion of for allocating resources to the FEA who have repeatedly of discrimination. Convention, the United Kingdom gives no appeal before refugee, they say it is relevant to deciding whether to years but no analysÍs of the complained of their inadequacy in the annual reports. The the failure of the last ten removal against a refusal of asylum for a person who remove you swiftly having rejected the claim. These There ís to combat discrimínatÍon Dept. can scarcely therefore be called dispassionate obser- causes. no attempt claims this status on arrival at a port ofentry. Ofcourse, it abusive claims will not even get the benefit of a L4 day blinkered accom' vers of the review now being carried out by the S.A.C.H.R,. only the maintenance of the is precisely on arrival at a port of entry that such claims moratorium to make further representations. But the - of the yeaÍs. This authorship together with the consultative papers' modation lastten ought to be made. It is not possible to obtain a prior entry purpose of such representations is precisely to sort out the to society as a whole'was timing and contents mark it out as a crude attempt to T}nat'affront and menace clearance before arrival (you only become a refugee when genuine from the abusive claim; who is meant to be the tolerance ofintolerance pre-empt the Review in anticipation of severe criticism and born in and has thrived upon such you have left your own country and can only make a claim beneficiary of this tame little procedure only claimants Paper. This disgraceful to establish the parameters ofacceptable future debate. A as is manifested in the White when you arrive in the country) and those who arrive as that the government think genuine but- are not sand approach to the still flavour of the whole paper can be gleaned from para. document with its head in the visitors or students and then claim asylum, have a right of granting asylum to. The irony is that the whole procedure should be disowned by 2,5-2,8. Argument about the prevalence of discrimination problem of religious discrimination appeal, but are Ìiable to be treated as ilìegal entrants by was set up to pacify Tory MPs after the government decent government. no doubt it will be the is characterised as being "usualþ sterile and inconclu- any But deception if they exercise it. Of course, there is a right of removed a Rumanian who on any view was an economic of government policy. sive . . . Though there are instances of discriminatÍon foundation future appeal after you have been removed to the country where refugee or abusive claimant. it is only one in a number of very complex factors you fear persecution; but this is the modern equivalent of Thirdly, the speed of the determination process, is whÍch contribute towards enduring employment the witchcraft ordeals (only those who are dead or utterly inconsistent with the care that needs to be taken to differentials". The suggested "very complex factors" Nick Blake imprisoned are likely to be successful). Judicial review is enable confused, frightened people to get across precisely include the state of the economy, the changing level of notoriously ineffective for challenging factual decisions if what their personal position is and why they are in danger. wages, tax thresholds and state benefits (Is it suggested normal administrative law criteria are applied. The Court The House of Lords had occasion to comment adversely on that one community is work shy?), gender differentials of .{ppeal (Criminal Division) seems to pathological have a the Home Office approach in one of the cases heard with (this presumably is intended as an example of what is not The UK and fear of getting involved in political issues and have pugdacay. More time and more care is manifestly needed, discriminatory). forbidden lower eourts from considering matters as such þarticularly where there is no opportunity for an appeal on Other factors include so-called high employment inertia. Refugees: mitigation when dealing with recommendations for de- the merits. However their own survey shows that 90.67a of those portation, even thcugh members of the statutory tribunals Finally, the government have dropped plain hints, that interviewed intended to remain in their current jobs. deal with such issues everyday. they may not allow refugees whose claims have been According to para 2.76- the factor', Catholícs Recent developments in the law relating to refugees are One possible solution to these 'chill rejected access to the courts. Removals, it seems may take apparently encourage employers to persist with not only of concern to practitioners of immigration and by the House of Lords in the place before applications for judiciat review can be made, discriminatory selection processes by theÍr reluct- human rights law; they are revealing about the general others'. The Courts rejected a s and even after leave to proceed has been granted. ance to apply for jobs wÍth certain companies. retreat from the principles ofinternational and municipal cases the courts should be the arbiter ofthe facts; or that Doubtless this will bring an interest in discovering the full Although no evidence is cited support of this the conceptions of the rule of law that has been a distinctive the construction ofthe convention required refugees be in to extent of the courts powers to grant mandatory injunc- inference to be drawn is that employers consider that feature ofthe present government. given leave to enter. Another solution had been rejected tions against Crown servants or to punish immigration efforts to recruit more widely would be futile. Haldane members will be familiar with the govern- earlier in a case where it was argued that asylum issues officers for contempt of court, but the fact that the The D.E.D.s proposals for reform are curious indeed. A ment's record on international law as applied to the could be raised on'destination'appeals which are normally government is plainly prepared to contemplate such a approach' is preferred institu- invasion of Grenada, the bombing of Libya, liberation in conûned to questions of where you are going to be removed 'muItí-dÍmensional etruggle is an extraordinary flouting of constitutional tionally merging religious, gender and disability- discri- Southern Africa, the sovereignty of Nicaragua, de- to and not whether you are going to be removed at all. and a naked attack on the rule of law. Her mination into one commission. 'Cost-effectíveness' is colonisation in the Falklands, and derogations from inter- One would have thought that such protection are not over famous for attacking the characteristically cited as one advantage. national covenants on trade union rights. with from on immigration, It might be thought that the best and most effective There is one important instrument that the UK is a appellate interference even tihe Home Office would have and they cannot be been able to ask questions trusted with the Minister's policy aspects of the three separate frelds could be combined by signatory to, that has been incorporated into UK law, at itselfthe relevant before coming up the The position with respect bringing each up to the highest level. On the contrary, least for the purpose of the immigration rules, and this is with answers; or to the review (reference Tamils is why us? are very good complainants of sex discrimination would lose their right the Convention on Refugees. It is thus an international to the Unitcd historical Advisory so reasons why- Britain some responsibility to a hearing before the Industrial Tribunaì. Gender instrument that is enforced daily in the immigration Service that eould be made cases where for the racial conflicts it power, but specifrc training and disablement quotas may have to end. appellate system. Whatever practices existed before (and in asylum claims were not in any event, neighbouring India The extension of quotas to the religious discrimination it is a moot point just how generous Britain has been to amount to an insurmountable bulk of Sri Lankan refugees. However, the field is dismissed as unacceptable and morally objection- refugees this century), there has been, since 1951, a clear hypocrisy in the whole sickening cocktail of able. No reference is made to other forms of aflirmative duty not to expel those who fear persecution on the was when it in the press action. Indeed the use of this term has "confused associa- grounds of race, religion, pllitical opinion or membership of own that discretion be it the courts, the law, UNHCR Tamils had been trained tions" and should cease. A new concept of 'emplo¡rment a social group and who present themselves to the author- the or their own referral- schemes. sent out with Whitehall approval, equity'is coined which does seem to lack a dynamic edge ities. Having been forced to breakfast on own and murder of gToss to it. their highly coloured vocabulary after the grant of Tamil civilians so judicial review proceedings, government to abandon their duties The sincerity of the DED's concern for sex and disability the announced its rather than to measures for how continue discrimination is unconsciously revealed in para. 6.34. they would deal with abusive claims in the future. Keeping religion separate, they say, from other forms of What discrimination might be a is the risk should "drawback".There First, airlines that may pr:ess for progress also ín relation to would be fined if they brought visa "some nationals without visas, 1. Enactment of the Convention so sex and disability" which amounts to an extension of that criminal courts immigration control will have to pay regard There is no hint of criticism of the FEA whose work is to the ticket offices of the world. The to it. e 2. Incorporation ut{cHR proced.ures described as 'energetic and enthusiastic'. It seems clear is visa. Only of the in to the immigrabion rules so that the suggested new commission will be little more than Ph s fail to be that a failure to comply could be a ground of appeal judicial a re-named version of the current agency. No clear the orld's most or review. 3. Detailed reasons why asylum proposals are made for better funding. are ns ofthese claims are rejected. will not be 4. A right of appeal Two concrete proposals severely limited. new countries able to arrive here without a visa. against all decisions to remove asylum are A claimants. statutory duty to comply with fair employment practice 5. No visa requirements for any asylum will apply only to the public sector. claimants; air and shipping lines to be informed Para. 6.76 explains why sector undertak- The British Approach to Refugees accordingly. "Prívate Limited judicial ings must operate competitively- in the open market 6. stay on rernovals where review being sought; automatic stay ifleave granted. and statutory regulatíons should be kept to the basic The difficulties have been with the interpretation of 7. Claim to settlement after 4 years for refugees and their unavoidable mÍnimum to enable them to do so". words such as persecution; establishing a fair procedure dependents if the circumstances making them refugees "Sglf-regulation" is the watch word motivated by 'com- for how such claims are to be evaluated, and with and doubtless the fact face still exist. pany image and customer awareness'. Such naked providing a means of appeal review of the factual that they or they get the answer wrong statements of ideology are almost refreshing coming after foundation of any decision to refuse asylum. In 1977 the will eñcour_ t a careful and dispassionate stance to Reþrence the previous obfuscation. United Nations High Commission for Refugees, at the 1. Bugdacay and others (1987) 2 WLR 606. Grant denial by government to those not signing a new request of contracting states, set out some helpful guide- 'Declaration of Practise" is proposed. It is however lines on these issues and made suggestions for a minimum repeatedly emphasized that such a step would be a last procedure for determination of these questions. The UK resort and represent a defeat for their policies. What is Government consistently claim to take account of these

I4 15 has been a reduction in discretionary grants that local RC: I think that we have to consider strengthening both administrative and criminal functions. But it is a mistake to see increased power of prosecution as in any way a substitute for dealing with the longer term issues raised by disrepair and poor conditions.

CP: To add to that my experience is that magistrates often think that we are in the wrong court when we try to football stadium disasters in terms of deaths from fire in akes the whole Process a lot rented accommodation since 1979. The question really see these matters in the same must be whether some of these deaths could have been or shoplifting. Also we must avoided iflocal authority powers were strenghthened and ount what is best for tenants in there were adequate resources for inspection. terms of the remedies available. So generally I'm more sceptical about more prsecutions. KS: Camilla, Russel is suggesting that in some cases local authorities are not inspecting thoroughly' Is this iust a Both CamíIIa Palmer and Russel Campbell are question of inadequate resources? speaking in a personal capacity and theÍr vÍews do riot replesent-those of any local authotíty ot law CP: centre. "lt always comes back to this question of resources" take Camd hence the heavy reliance on Bed and Breakfast accom- Peter Thornton modation and small hotels, with all the accompanying problems of bad conditions, overcrowding, and lack of Ever thought of suitable facilities for cooking etc. Public Order Law KS: Over the last few years we have seen the emergence your of much stronger Tenants' groups which seem to have a Shopping very clear idea of what they expect from local authorities New Act as much as from landlords themselves. Landlord? -The to the militarY bY Bierce's definition of as they have the power to do' CP: Yes, but Tenants' associations are generally most in default t adopted as the new Camilla Palmer. a local aut and As to harassment and iilãgal eviction we obviously have effective in council owned property and in connection with this they certainly do make sometimes very effective definition in the Public Order Act 1986, despite its Russel CamPbell, a solicitor Law picket line' Nor is representations to the local authority. relevance to recent police activity on the Centre, talk to Keir Starmer wyer Martin Luther King's definition riot is at bottom the role of local authorities and -'A about ihe is language ofthe unheard'- despite its relevance to inner pursuing landlords in the private sector' RC: I agree. Also if a particular type of action successful by one Tenants' group others will identify and city conflict in the 1980s. (s1) much longer, much and penalties are follow this. Here in the Law Centre we often rely on ihe real definition of riot is KS: Camilla, to start with, could you briefly outline the eviction and harassment are crimes Like the landlords federations oftenants' associations in terms oftheir ability more cumbersome and markedly less interesting. powers'that local authorities do have with respect to quite severe. Bringing that knowìedge home to public the policy. What of course is very rest of the Act it does nothing for the causes of housing and tenánts' rights? iË often a good rèmedy in itself particularly with to influence the council's smaller landlords. important here, and it goes back to the points that Camilla resources, is that tenants must in addition be CP: Local authorities do have a wide range of powers' For made about KS: So are you really suggesting that at least in the short able to make local authorities more accountable to them in term the pówe"s of local authorities to bring criminal terms of housing, This requires at least a change in the law proceedingi are much more effective than their adminis- making the function of local authorities clearer. For ate disposal. In short it lumps together rioters, hooligans, trative powers? example it is necessary to replace powers of inspection of property with duties to do so, likewise in the serving of pickets, and demonstrators, as though every activity on public decency. notices to repair. This will be non-effective if not accompa- lhe streets must be seen as an affront to the interests of tenants. enforcement measures. And, of course, it In addition local authorities also have power, quite apart nied by stronger would mean more funding, but, in the long run, repairing The Public Order Act 1986 existing housing stock is much cheaper than replacement public in a few years time. This requires more than anything a The Public Order Act 1986 is the frrst major order statute years. It extends police controls over from a tenant in the law centre. In fact very few complete strategic rethink, but since the private sector in for fifty prosecu and those that have London still amounts to27Vo of all the housing stock, often proc e been verY successful. containing the elderly, ethnic minorities, and women, it is asse landlord to carry out specifrc repairs. Leen br whÍ It is that is effective. a rethinÈ that should be taken very seriously by all rea the common law offences of riot, rout, unlawful assembly could be said that local socialist lawyers. KS: So, broadly speking, it from the point and affray, but replaces them with a new range of have dual powers in this area namely a KS: Camilla, authorities and given that Russel has outl statutory offences: riot, violent disorder, affray, threaten- prosecution power and an administrative power KS: Camilla, replacing powers with duties, more effective criminal threat of criminal sanctions, a towards ing behaviour etc and the controversial offence ofdisorder- issuing and pursuing'notices'? enforecement, and a major strategic rethink authority have to prosecute adequate? funding and resources. What effect would all this have on ly conduct. It includes a new offence ofcriminal trespass as well as a new offence of contaminating or interfering with completely sepa- I agree that it is a deterrent and I certainly wouldnot local authority policy and practice? CP: Yes, but they are not necessarily CP: goods. It revises and expands the law against incitement to suggest Ihat the local authorities should not prosecute but rate. racial hatred and gives the courts a new power to exclude t ¿ïttrint< that there are huge problems. For example it CP: I'm sure that Camden for example would welcome but it really question certain offenders from football matches. KS: Which of these is the most commonly used by the such changes, does come back to this the resources. There need to be a large local authority, and why? of finding would increase in the number of Environmental Health Offrcers The originals of the Act to inspect was introduced. On the other hand, CP: Some authorities have a policy of prosecuting but if a duty there are big problems legal proof, lack of adequate duties would be very useful in local authorities that are not progressive as Camden, since under the present powers remedies etc. Likewise generally- local authorities do try to as get away with as little possible so far as iszue notices wherever relevant. But the sheer number of and orders to carrY out rePairs. they try to as private properties in disrepair and the- limited time and protecting private sector tenants are concerned. a loosening i"rott.". available to follow them up before the property is KS: It is generally accepted that we have seen controlJover the last 7-8 years. What effect has this had KS: Just to pick up on one point that was established sold makes this a very hard task. of etc. prohibited qua the protection of tenants' rights? earlier, given that the threat of criminal prosecution is behavious It on the wearing of uniforms in at the receiving very effective in deterring landlords in harassment cases, and displayed by the bla what The overall political climatð has meant that there is would it not be better to concentrate on expanding and objects as l ritY PolicY, RC: there strengthening local authority powers to prosecute? Union of Fascists. I y experience? generally a lot more djsrepair and more specifically i t7 16 The 1986 Act represents the culmination ofseven years' This extends police controls in three areas. First, the consideration of public order law, starting with a govern- non-moving demonstration is now included (s14) as well as (s12). ment review of public order law following the disturbances marches and processions This covers open-air REVIEWS in Southall in 1979 from Green Paper to White Paper', meetings, pickets and demonstrations in support of pickets from Scarman on Red- Lion Square to Scarman on Brixton, as long as the group is twenty or more persons (s16). CRIME BOOKS REVIEWED BY BLACK - police from Law Commission reports to the Popplewell Inquiry Secondly, the tests to be applied before the can act MASK sorry to on sports grounds. have moved away from the concept of public disorder dull. In Like many other lawyers, I love novels. towards something called disruption to the life of the crime correct Cook has kept atoa6 community. Already this has been interpreted by the There is a long and noble history ofleft wing No codifrcation crime perhaps and I am of the police as meaning inconvenience to traffrc and 'normal' writers, beginning with without a very Dashiell Hammett, although his books do daily life, and senior offìcers process ofdrawing without But the 1986 Act is not a codifying statute. Despite moves are in the not deal overtly political themes. The with worked out the of the towards cofication with the Police and Criminal Evidence up pìans to muzzle traditional marches with unreasonable challenge is to preserve the form then alter fail to connect book is Commission's report the conditions. Thirdly, the conditions which the police can the content. Currently more left wing Act 1984 and the Law on and ing Positions by mind. There is (1985), lawfully impose on demonstrators may restrict the num- feminist crime fiction is being written and Codifrcation of the Criminal Law the Public Order feminist crime argue for them bers of those taking part, the of the event, and Pluto (taken over by Allison and Busby) has Act 1986 is a hotchpotch of political and legal changes, duration overeducated Jewish find in this type of place is be its own series of new crime novels. I hope leaving out many important aspects of public order law. the it to held. to a well heeled suburb of New York. When familiar with Archbold will review these and others that come along. does not deal with the preventive common law power So that ifparents wish to protest at the town hall about local periodontist, aptly named Fleckstein, is be surprised by how helpful it is to have the It For the left wing feminist criminal practi- of peace, which remain the the shortage of local authority child care facilities, the murdered and rumours about his many mis- author taking the other side. The selection of to arrest for a breach the at tioner there is the difficulty in reconciling police can decide, on the basis of traffic difficulties and a tresses whiz around town she becomes intri- authorities is very extensive and leads to heart of policing public order, although it removes the truth with fiction. simply, for those few complaints from shopkeepers, Quite of us gued and frnally determined to track down the other useful materials. The book compares concept of breach of the peace from the statute book. It that the protest should in and out ofLondon police stations and courts murderer. very favourably with the other most recent leaves unrepealed sections ofthe Public Order Act 1936 on be removed to the local park half a mile away and limited every day, a handsome, intelligent policeman "that was on Valentine's Day, I sat alone, publications and notjust because ofthe price. quasi-military bypasses to twenty people for one hour. Any organiser who cannot be imagined. Sensitive, poetry uniforms and organisations. It writing waiting for my husband, my finger tracing It goes that much further in trying to put the knowingly fails to comply with any of the conditions is Inspector Adam Dalgeish of P.D. James's enactments on the use of the highway and the much used hearts pierced with nonlethal arrows on the reader in the position ofhaving an overview of guilty of an offence and can go to prison for up to three novels is a wonderful character but he just police powers to give directions under the Metropolitan frosted windows near the kitchen table." the new law. months. Anyone who takes part and knowingly breaches could not belong to the Metropolitan Police Police Act 1939 and the Town Police Clauses Act 1847, as a As Judith becomes more involved in sleu- The next time that the courts are full of force that I know. Vince Mora of Elmore's well as the increasing use of local and Ministry of Defence condition can be fìned up to f,400. thing her husband, a boring businessman is at public order cases then although the defence latest, Glitz, is handsome, intelligent and nice leaves untouched aspects of picketing frrst patronising and then angry. But she advocates' task will be aII the more difficult byelaws. It certain to women but I suspect that Disordly conduct the Miani Police carries on in her feisty way, frnding romance because ofthe new state ofthe law he or she law, the law on indoor public meetings and election dept. is not exactly full of his type of police- with the offiÒer in charge of the case at the will be better protected armed with this new meetings and a number of public order offences, including man. The only really believable fictional Part (Processions local police dept. Valuable clues are provided book. the carrying of offensive weapons, The main argument for If II and Assemblies) reflects the worst of policemen I know are Grave Digger Jones and by Nancy the trusty friend and sidekick Nicholas Paul codification, that clarifrcation of laws makes them better the Public Order Act 1986, there are other provisions to Cofïin Ed Johnson of who the New York City whiles away the boring afternoons, when her police worry about. Remarkably the Act creates more than Police dept. The creation of Himes, known and understood, was rejected in favour ofthe Chester husband is at work, with Cupcake, a rookie thirty-frve criminal offences, ranging from riot (s1) to they are black plain clothes argument for flexibility in the defrnition and control of detectives work- policeman given to indiscreet pillow talk. possession of a firework a (Schl, ing in Harlem. Coffrn Ed and Grave Digger common law powers by the courts. at football match Part I, Compromising Positions is a witty novel with are totally without charm; they para.3). Most controversial of these is the new offence of belong to the a lot of sex and only a minimum amount of means justifres the ends school crime disorderly conduct (s5). It penalises threatening, abusive of essential violence, which for me are the busting and feel very real. Chester Himes's or insulting words or behaviour or disordly behaviour perfect proportions of those vital ingredients. novels have recently been re-issued Allison within the hearing or sight of a person likely to be caused by and Busby in paperback with low beautiful Cotton Comes to Harlem. Chester harassment, alarm or distress. The maximum penalty is life covers evoking a rich picture of Harlem f,400. This is the new lowest level public order offence. It is Himes. Allison and Busby f,2.95 life in the 40s and 50s. They are violent, Mu¡der ln the Central Committee. aimed at 'minor acts of hooliganism', but it undoubtedly exciting and very funny. extends the criminal law into areas Manual Yazquez Montalban. Pluto of annoyance, disturb- In order to avoid the absurdity of the Crime f3.50 ance inconvenience progressive policeman many writers have and hitherto unpunished as crime. Gompromising Positions. Susan Isaacs. turned to the progressive private Several safeguards were proposed to limit the scope ofthe eye. At first Penguin f,2.50 this idea seems pretty absurd, especially when offence: the behaviour should actually cause someone to The Waste Remains. Judith Cook. Pluto feel harassed, alarmed or distressed (not that it was we think of their English counterpart, the Crime f2.50 enquiry agent. I mean can you imagine Sam merely likely to do so), the degree of harassment should be Spade or Philip Marlow lurking around the FIRST RIGHTS _ A GUIDE TO LEGAL substantial, no need power of there was for a arrest. But back streets of Catford trying to serve an RIGHTS FOR YOUNG PEOPLE these proposals were rejected. In particular the offence injunction. But it is a profession with a lot of Rae, Hewitt, & Hugill. Third Edition. includes an unusual two-stage power of arrest, remark- scope and room for all kinds of people. In Public Order Law bv Peter Thornton NCCL f2.95. Financial ably similar to the arrest power in the repealed offence of many of the left wing novels private eyes are Training Èt O.ZS There are few more complex and muddled a suspected person). ex-politicos, grown cynical, who arejerked out areas of the law than that relating to children 'sus'(being In the bad Mrs Thatcher's idea of a Peaceful Demonstration of their apathy by a big case. Pepe Carvalho old days before the authorities saw and young people, yet this book provides in the light A bad Act the hero of Murder in the Central Committee and introduced advance disclosure little more than 100 pages an admirably clear by Manuael Vazquex Montalban, in the defence advocates often had to go the magis- and accurate guide to a maze of legislation. Pluto crime series is a good example of this trates'court to defend public order cases not Written primarily for young people, the book Commencement This is just a foretaste of the Public Order Act 1986. If the knowing type. Montalban is a leading member of the what case they had to meet. Peter should appeal equally to lawyers, social work- flavour is already unpalatable, it will not be sweetened by Thornton's book The main provisions of the 1986 Act will come into force on Catalan communist party and this book above on Public Order Law would ers, counsellors and even parents. (s1) have been the 1 April 1987. Two sections came into force on 1 January: sampling the widely drawn offences of riot and violent aII else is a discourse on the place of the ideal companion to resist the The nine chapters deal with areas of chil- surprises that the requirement to give advance notice to the police of disorder (s2), the increased scope ofthe old s5 Public Order communist party in post-Franco Spain. The the pro drens'personal experience such as the family, His new book is marches and processions (s11) Act 1936 offence of threatening behaviour etc (now s4 author has also written on culinary practise as the school, employment and relationships, as well and the offence ofinterfer- covering (s38). Public Order Act 1986), the power to ban marches and and there is a wonderful glossary of Catalan manual the as areas in which young people are directly ing with or contaminating goods Part IV of the Act law. (football processions (s13), the omissions in the extended racial dishes and parties. Our hero is based in order involved in the legal system such as care and exclusion orders) will not come into force until the Fifty years on from its precursor the 1936 hatred offences (Part III), the cumbersome power to direct Barcelona which is enthusiastically explored criminal proceedings. First published in 19Zg autumn. Public Order Act the new act hits the statute the trespassers to leave land (s39), or the new arrest power and travels to Madrid, a city he frnds less book has been extensively revised to simpatico. All these extraneous themes are book hammering another nail into the coffin include details ofthe effects ofthe Gillick case, and increased penalty for the picketing offence ofwatching our precious Restricting freedom of assembly deftly incorporated into the plot which is in which civil liberties are inter- the Police and Criminal Evidence Act, the and besetting (Sch2, paral). The central and most controversial part of the Act strikes about Carvalho's search for the murderer of red. It is no coincidence that after several British Nationality Act and the forthcoming This a punitive Act. It curbs and restricts, and punishes years inconclusive debate at the very heart ofan open democratic society. The object the ageing general secretarv of the Soanish as to the state of abolition of corporal punishment in schools. the pays not even party. All the public order law it took the miners strike of is to control demonstrations by providing the police with defaulters. It lip-service to the fun- communist cõnventions'of the The last chapter contains an informative damental right of assembly or the right of peaceful protest. genre are scrupulously observed our hero is L98415 to propel the government into impos- summary of childrens' rights g sweeping new powers to curbe the right of assembly. To a accordin to age It is unnecessary because of existing powers, it is harmful beaten up and hunted by villains;- sex and ing on a confused and worried nation this new with a list of the names and addresses of great extent this object is achieved by extending the 1936 draconian piece legislation. because it is a serious curtailment of civiì liberties, and it is danger come in the form of a glamorous of The govern- useful organizations and further reading mat- Act powers (Part II). Wherea ment and media presented dangerous because it is more likely to provoke than Chilean refugee. This book is a delight and I the struggles of ter. impose conditions on demons hope the other Pepe Carvalho stories will be the miners as an organised attempt to subvert The book is prevent disorder. It should be repealed as soon as possible. written in clear andjargon free demonstrations and if the pol published in english soon. the forces of law and order. The subsequent language and avoids the patronising style public disorder, now conditions can also be imposed on Finallv we are left with the amateur sleuth. acquittals of most of those charged with which is so often a characteristic of the static demonstrations, called assemblies, and also where The author is a practÍsing bamister and past chair- An ordinary citizen solving crimes whilst serious offences caused wrath and indignation attitudes of adults towards young people. amongst the establishment. the police fear 'serÍous disruption to the life of the person of the NatÍonal Council for Civil Liberties. He whole police forces fail, thwarted at every The time had However it is obviously diflicult to over- reactionary come for a new act to deal with the rising tide community', serious damage to property or the intimida- is the author of Public Order Law, publíshed by turn by forces. Women have simplify complex legal information and still always of industrial and social unrest. Directly a tion ofothers. Fínancial Traíníng PublÍcations Ltd at f10,75, been excellent amateur sleuths and as retain its accuracy. Certain sections of the feminists have added to their number. In result of that the government in the new book, for example the chapter on local author-

18 19 ity care, summarrse concepts which though SPECIAL COURTS IN NOTTINGHAM clearly st'ated are by no means easy to understand. For this reason is a book for Haldane Society of Socialist Lawyers it LETTERS Dear Sir, good readers and is more suited to teenagers Recently the Police here in Nottingham con- than to young children. The text is enlivened ducted what they called "Operation Tiger" and underlined by a number ofclever cartoons as a result of which a large number of people FLOUTING THE RULE OF LAW which should amuse children and adults alike. were arrested and charged with a variety of As well as being an essential addition to drug offences said to have been committed in Dear Colleague, every school library, the book is a valuable the of a particular Public House in the I have little doubt that the Executive vicinity basic reference work for legal and lay advis- City. Committee of our Society will be giving its ers. The law relating to children is scattered Those who had been charged and bailed attention to the manner in which the present amongst so many statutes, cases and regula- appeared before a special sitting of the City Govrnment and its various agencies, includ- tions that anyone advising children should Magistrates on 25th February. By ing the police, are so frequently flouting the "special" welcome the book as a useful starting point. I mean that a particular Court had been set "rule of law". SUBCOMMITTEES The only significant criticism which could aside to deal only with those alleged drug The behaviour the Special Branch, which be made ofthe book is that despite its clarity, of offenders and had been arranged that the appears to possess complete automony of it it is diffrcult to locate specific information Bench should be available for an All Day The Subcommittees of the Haldane Society carry out thè Society's most action, must engage the attention of every quickly. There is no index and only one sitting been bailed to the important work. They provide an opportunity for members to develop serious commentator; whilst the threats since some cases had chapter contains a summary of its contents. morning and others to the afternoon. areas of special interest and to work on specific projects within those uttered so publicly by Mr. Leslie Hurst, This is likely to cause some frustrations to lay Where Solicitors had been instructed, often areas. chairman of the Police Federation, against advisers and young people without a detailed as early as frrst week December, you future demonstrators must give serious mis- the in All the Subcommittees are eager to attract new members so if are knowledge of the law, who may not know applications had been made for pre-trial discl- givings to all who believe that the determina- interested in taking a more active part in the work of the Society please which chapter a particular problem falls into. osure but without response. The Crown Pro- tion of legal rights of assembly is a matter for contact the Convenor and s/he will let you know the dates and venue of In recent years children and young people secutor explained that the files had reached the legislature and the judiciary, rather than the meetings. have begun to recognise that they can suc- his Department at such a late stage that it that of the constabulary. cessfully challenge the authority of adults had not been possible to comply with the Meanwhile, I enclose herewith, for your around them. At a price of f,2.95 this book is Advance Disclosure Rules. In those cases the Pam Brighton, 111, Fortess Road, attention a newspaper cuttings. One well within the pocket money limits of most couple of Solicitors asked for an adjournment for pre- CRIME London NW5. these draws attention to the number of teenagers and should be compulsory reading of trial disclosure to be supplied and where the international conventions having the force of for any young person who wishes to make his allegation was simply of possession (of canna- law, which the government has or is about to, or her voice heard. bis) the Court allowed the adjournment. Tim Kerr, 15, Old Square , Lincoln's set aside in its determination to weaken the EMPLOYMENT JOANNAHALL However, there were other cases where the Inn, London WC2. bargaining power of workers and their un- allegations were more serious. For example, I ions. article by Keith Ewing was pub- LABOUR LAW WITH A LABOUR l?his represented a Defendant who is alleged to Out Court coLumn in the Jeremy Smith, 177, Holland Road, GOVERNMENT; AWORKERS, lished in the of have supplied both cannabis and ampheta- INTERNATIONAL Guardian on 20th February 1987 and. refers to London NW6. CHARTER mines. In his case I had asked for pre-trial GCHQ and the Teachers Pay and Conditions disclosure on the 5th December, it had not Published by the Haldane Employment Biu-Ed.) been forthcoming and I repeated the request Paddy O'Connor, 14 Tooks Court, The other constitutes a striking example of IRELAND Sub-committee (Price f 1) on the 16th February again without any Cursitor Street, London EC4. the ferocity with which our criminal law visits response from the Prosecution. I asked the the offences committed by those whom our There can be no doubt that the labour move- Court to adjourn for pre-trial disclosure and ment is entitled to radical reform in the freld Elizabethan ancestors called "sturdy beg- Andrew Buchan, 1, Dr Johnson's gars", the Court declined to do so. MENTAL HEALTH of labour law if the Labour Party is elected One can but contrast this ferocity with Magistrates advised that Bldgs., Temple, London EC4. kid-gloved treatment of city fraudsters The were into office this year. The Thatcherite adminis- the although my Client was charged with "either and inside-dealers. tration has brought about some of the most way" offences they should hear representa- (This article in the Western Morning News on Mangit Gill, 11, King's Branch Walk, far-reaching changes this century and the tions as to Mode of Trial from the Crown RACE AND 21st February 1987 describes a mother of Temple, London EC4Y 7EQ. recently published'green'paper on yet furth- four Prosecutor and consider whether, in the light jailed a year the DHSS IMMIGRATION er trade union reforms only goes to confirm being for for fiddling of what he had to say, it was likely that I out of f298 in 6 months ED . this. For the last two years the Haldane - would be able to make representations which Employment sub-committee has been busy would affect their decision. I objected, repe- Ben Emerson, 154, St Paul's Road, Yours sincerely, RECRUITMENT discussing and drawing up proposals for re- ated my request for an adjournment, ex- London Nl. form of British Employment Laws. This has JACKHENDY plained why but the Bench, acting on advice now culminated in it's recently published proceeded to hear representations from the Caroline McKeon, 2, Plowden Bldgs., CORNWALL WOMEN 4O-point Workers' Charter which is very Crown Prosecutor which were that the Pro- Temple, London EC4. VICE.PRESIDENI: OF THE HALDANE much aimed at an in-coming Labour Govern- secution invited the Magistrates to decline to ment. SOCIETY deal with the case Summarily. The Magis- Camilla Palmer, The Charter suggests that a completely trates agreed and the case was adjourned for HOUSING: 15 Anson Road, new approach is necessary which can move Committal Proceedings. RESIGNING ISSUE London away from the traditional use of piecemeal I do not have access to the complete list of N7. reforms to construct a whole new frame-work results arising from that Court but the sample Dear Secretary, of employees' rights at work. In doing so, it ofcases to which I did listen suggests that the am cancelling my subscription the attempts to plot a narrow path between the I to Court achieved a consistency of level of frnes Haldane Society. Taking into account the superficial attraction of a Code of Law and for possession of cannabis (namely, f100.00 subscription fee, do not consider that a THE EMPLOYMENT LAW BULLETIN is a highly successful quarterly more traditional calls for a return to pure'free I plus costs) which does not appear to have differential of f3 between London and non- journal published by the Employment Subcommittee of the Haldane collective-bargaining'. Hence the Charter reflected the facts of the cases as they differ London workers adequately compensates for Society. circulation among urges extensive minimum rights in some between Defendants nor the differing ability It has a wide Trade Unions, Trades Councils areas (e.g. wages, health and safety) whilst the fact that, as far as I recall, in my time as ofthe Defendants to pay. and labour lawyers. Each copy of the ELB costs 51.00. If you wish to arguing for the exclusion ofthe law altogether member of the Society I have yet to see any There are, I believe, three separate issues subscribe, the annual rates (4 issues) are as follows: from other areas (e.g. industrial action, trade event organised outside London. which ought to be considered:- 1 - 4 subsrciptions S5.00 per sub. London union rule books etc). Specifically covered are does not have a monopoly of social- 1. The convening of "Special Courts" 5 - I subscriptions S4.00 per sub. ist lawyers. Thete to be no regional the Statutory Minimum Wage and the Right appear 2. The overriding tariff or penalty which 10+ subscriptions ...... S3.00 per sub. groupings, and is possible ...... to Strike. it rarely, ifever, or seemed to have applied. convenient fo¡ non-l,ondon workers to traveÌ Whether this will be a happy 'marriage' is, 3. The refusal to allow an adjournment for AII prices include postage of course, open to speculation but it does seer¡r fo I¡ndon for one-sff evenüs. pre-trial disclosure. on to be prompted by a very sober analysis of the I think, balance, that the subscripüion I should add that the notion of a fee "Special Please send orders with Andrew Buchan, effects of the last I years both in terms of for ühe Haldane Society would be better Court" is not without precedent in Notting- 58, Upper Tollington - on subscibing orga- payment to: Park, London anti-trade union laws and the more general spenf to or supportiag ham. Recently, for example, Courts have been N4 4BX nìsations whose perhaps visible (Cheques/P payable shift from traditional manufacturing work, work io more set aside to deal exclusively with alleged O's to out-of-to*¡ners so, âre where unions are very strong, ta the 'service' to and, if I may say Prostitution oflenders. the Haldane Society) ¡ather less taken up what can be some- sector, where they are not due to the predomi- with I should be very interested to know of your nance of part-time and flexi-time Labour what idiosyncratic concerne. readers views. which is always very hard to organise. The 'Workers' Charter' is a timely reminder Yours sincerely, Yours faithfully, to all in the labour movem€nt that there is much to be done if the onslaught of the last 8 PHTLTIANRTS BARRIE \T'ARD Designed by: Alphaset, Petra Pryke, 36a Monmouth Road, London W2. years is to be successfully reversed. SHEFFIELD NOTTINGHAM SOCIETY OF Tel: 01-243 1464. 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