Socialist Lawyer · The trial of Alfie Meadows Margaret Gordon 30 Benefit cuts Wendy Pettifer 32...

SocialistLawyerMagazine of the Haldane Society of Socialist Lawyers n Number 64 l June 2013 £3

Michael Mansfield:The writing is on thewall for legal aid

Chile: SalvadorAllende –40 years on

Benefits cuts;Court interpreters;Alfie Meadows

plus: Guatemala,Austerity Europeand more....

If not now, when?

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2 Socialist Lawyer June 2013

Editor: Tim Potter Special thanks to: Russell Fraser, Liz Davies, Declan Owens, Mike Gooldand Stephen Knight. Many thanks to all our othercontributors and readers who havehelped with this issue.Cover picture: Jess Hurd(www.jesshurd.com)Design: Smith+Bell(www.smithplusbell.com)Print: The Russell Press(www.russellpress.com)ISSN 09 54 3635

Number 64, June 2013PO Box 64195, London WC1A 9FDwww.haldane.orgThe Haldane Society was founded in 1930.It provides a forum for the discussion andanalysis of law and the legal system, bothnationally and internationally, from asocialist perspective. It holds frequentpublic meetings and conducts educationalprogrammes.The Haldane Society isindependent of any political party.Membership comprises lawyers,academics, students and legal workers aswell as trade union and labour movementaffiliates. The list of the current executive,elected at the AGM in November 2012 isas follows:President:Michael Mansfield QCVice Presidents:Geoffrey Bindman QC, Louise Christian,Tess Gill, Tony Gifford QC, John HendyQC, Helena Kennedy QC, Imran Khan, Catrin Lewis, Kate Markus, Gareth Peirce,Michael Seifert, David Turner-Samuels,Estella Schmidt, Phil Shiner, Jeremy Smith& Frances WebberChair: Liz Davies ([email protected])Vice-Chairs: Kat Craig and Anna Morris([email protected])Secretary (job-share):Russell Fraser & Michael Goold([email protected])Socialist Lawyer editor: Tim Potter([email protected])Treasurer:Declan Owens([email protected])Membership Secretary:Debbie Smith ([email protected])International Secretary: Bill Bowring([email protected])Executive Committee:Kani Areef, Martha Jean Baker, AlexChandran, Natalie Csengeri, RheianDavies, Emily Elliott, Elizabeth Forrester,Thomas Gillie, Margaret Gordon,Agnieszka Grabianka-Hindley, OwenGreenhall, Rebecca Harvey, RichardHarvey, Paul Heron, John Hobson, SophieKhan, Angus King, Stephen Knight,Siobhan Lloyd, Natasha Lloyd-Owen,Chris Loxton, Carlos Orjuela, Sam Parham,Wendy Pettifer, Ripon Ray, David Renton,Brian Richardson, Hannah Rought-Brooks,Marina Sergides & Adiam Weldensae

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SocialistLawyer Haldane Society of Socialist Lawyers

4News and commentincluding: blacklisting;austerity in Ireland;Basque separatism;ELDH activities; and thefight for legal aid

12Court interpreters Aisha Maniar

14Chile: SalvadorAllende 40 years onVictor Figueroa Clark

17Syria Statement fromInternational Associationof Democratic Lawyers

18Europeanconstitutions, laws and austerityJeremy Smith

22Legal aid Michael Mansfield,Anna Morris and Russell Fraser

28The trial of Alfie Meadows Margaret Gordon

30Benefit cuts Wendy Pettifer

32Socialists and rights David Renton

35Colombia Interview withCarlos Lozano

36Mexico Camilo Pérez-Bustillo

38Guatemala SiobhánLloyd

42Reviews Film and book

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Socialist Lawyer June 2013 3

from theeditor

to such persons, so that even the minimal rightsprovided to them by the law cannot be enforced, isin our view unconscionable.’ Strong words from theGovernment’s own lawyers.

There have been unprecedented and stronglyattended demonstrations by lawyers both outsideParliament on 22nd May 2013 and outside theMinistry of Justice (MOJ) on 4th June 2013. Thelatter of these two protests was sufficiently wellattended to lead to the spontaneous closure of PettyFrance, the road outside the MOJ. The hope is thatthe unity and momentum which has been invokedacross the profession in opposition to these illconsidered proposals continues. The consultationmay have closed on 4th June 2013 but many battleslie ahead for the campaign as the Government’sproposals look set to be put before Parliament laterthis year.

The Haldane Society’s President, MichaelMansfield QC, issues a rallying cry to the campaignin this issue while Anna Morris asks: at what pricejustice? This is a particularly pertinent question asthe Lord Chancellor Chris Grayling has set his sightsnot only on cutting back legal aid but also onprivatising both the Probation Service and the CourtService. Within the context of the campaign to savelegal aid it is helpful that campaigns such as thosebeing run by UK Uncut continue to remind ourpoliticians and media of the scandal of massive taxavoidance. The estimated £4.5 billion UK Uncutsays there is in unclaimed tax is a staggering amountto bear in mind as the Government seeks to continueto justify its deconstruction of the welfare state.

While the campaign in the UK to save publiclyfunded justice continues, contained within this issueare a number of accounts from other legalcampaigns across the world. There is focus on thegroundbreaking trial and conviction ofGuatemala’s former dictator Efrain Ríos Montt forgenocide, and the subsequent decision ofGuatemala’s Constitutional Court to overturn theconviction and remit the case for a retrial. SiobhánLloyd recalls her time spent working in GuatemalaCity for the legal centre Centro para la Acción Legalen Derechos Humanos. Also in Central America,the legal academic Camilo Pérez-Bustillo writesabout the upcoming hearings being scheduled totake place in Mexico City as part of the PermanentPeoples’ Tribunal with the aim of shining a light onthe oft forgotten violent story of migrants makingtheir way from Latin America to the USA. Tim Potter, editor ([email protected])

On 2nd May 2013 a perhaps little noticed commentpiece appeared in the pages of The Financial Timesentitled: ‘Austerity is not the only answer to a debtproblem’. The article was co-written by theHarvard University professors Kenneth Rogoff andCarmen Reinhart, seen by many to be theintellectual authors of the austerity measures thathave been and continue to be rolled out across theUK and Europe. This revealing article appearedfollowing a strong debate on the efficacy of austerityas a means of dealing with the current financialcrisis after an economics student, also at Harvard,found out almost by accident that the data andfigures that had been compiled to support Rogoffand Reinhart’s theories did not stack up. Theshortcomings in the austerity narrative have beenhighlighted yet again more recently by theInternational Monetary Fund’s admission on 5thJune 2013 that it had failed to realise the damageausterity would do to Greece. In this issue JeremySmith analyses the attempts at subversion ofEuropean constitutions in the name of austerity.

Much of this issue of Socialist Lawyer isdedicated to the ongoing campaign against thefurther round of cuts being proposed to legal aid,coming hard on the heels of the cuts alreadyintroduced by the Legal Aid Sentencing andPunishment of Offenders Act 2012 which came intoforce on 1st April 2013. The deficiencies inherent inarguments put forward in favour of austerity shouldbe at the forefront of the mind when considering thecoalition Government’s continued ideologicalpursuit of the destruction of legal aid. The campaignis not about lawyers and their remuneration butabout the protection of the most vulnerable in oursociety and the preservation of an essential pillar ofthe welfare state.

The good news is that large parts of theprofession have united against the proposals forfurther cuts to legal aid. 13,000 responses were sentto the Ministry of Justice’s consultationTransforming Legal Aid: Delivering a more credibleand efficient system which closed on 4th June 2013.Crown Court judges have come out against theproposals. A large number of Treasury counsel havesent in a joint response in opposition to theproposals. Among their reservations, they expressparticular concerns about the proposals tointroduce a residence test for civil legal aid which‘risks creating an underclass of persons within theUK for whom access to the courts is impossible’.They go on to state that ‘To deny legal aid altogether

‘It’s not aboutlawyers, it’sabout theprotection ofthe mostvulnerable inour society’

Thanks to Young Legal AidLawyers for the poster onthe back page. See theirregular column on page 11.Their website: www.younglegalaidlawyers.org

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Haldane members arefamiliar from previousissues of Socialist Lawyer

with the scandal of the blacklist inthe construction industry. In 2009the Information Commissioner’sOffice raided the offices of theConsulting Association, whichheld details on 3,213 constructionworkers and traded their personaldetails for profit. The databasewas used by over 40 constructioncompanies and includedinformation about constructionworkers’ personal relationships,trade union activity andemployment history.

But how does the blacklist and

spectre of unemployment affect areal family? What was at stake forthese workers as a result of theblacklisting because of their unionactivity and how is it affectingtheir lives now? A very realexample of the evils of theblacklisting operation can beevidenced in the presentcircumstances faced by SteveAcheson and his family.

Mr Acheson’s blacklist fileincluded his name, address, dateof birth, National Insurancenumber, mobile telephone numberand the fact he was ‘probablyEPIU’ – referring to his unionmembership. There were scores ofentries from sources and clippingsfrom the left-wing press. Itmonitored where he was workingand included some places he hadnever been employed. Among theentries were: ‘Is behaving himself,now a foreman… Lads don’t payas much attention since he’s not onthe shop floor’ and ‘Stephen (sic)Acheson is known to be currentlyvisiting agencies looking foremployment in the Liverpoolarea’.

Mr Acheson had a successfulcareer as an electrician,supervising other workers andworking on major constructionprojects worldwide. His unionactivity started in 1996, after thedeath of a 21-year-old colleague ata site on which he was working.Like so many other blacklisted

Evidence of theevils of blacklisting

workers, suddenly the phonestopped ringing and he could notfind work in the middle of theconstruction boom. He suspectedthat there was a blacklist and hewas on it, but he had no proof.

Since 2000 Mr Acheson hasbeen unable to secure any work.He was thrown out of work onseveral occasions on sites acrossEngland between 2000 and 2008.He is still continuing his protest atFiddlers Ferry power stationwhere he was sacked in December2008 as a result of being on ablacklist as a ‘troublemaker’. Forall that time, he has been standingoutside the giant plant – one of theNorth West’s most well-knownlandmarks with its huge coolingtowers looming over the outskirtsof Warrington – accompanied by

dozens of banners. Through hisdetermination to expose thisconspiracy, Mr Acheson hascampaigned to ensure that thepublic is aware of what hasoccurred.

Mr Acheson would prefer towork and return to a normal lifebut he suspects that he will neverstep through the gates of aconstruction site again.However, he continues to protestto bear witness to the conspiracyon behalf of himself and hisfamily, but also for all theworkers and their families whohave been caught up in theblacklisting conspiracy. Hisenthusiasm for trade union workhas not diminished and heremains more involved in unionwork than ever before.

Trade unionists fighting the blacklist conspiracy

February March26: Three new justices are appointedto the Supreme Court. The three are allmale and all white. Lord Neuberger,the court’s President, later expressedconcerns about a ‘subconscious bias’against appointing women.

2:The Daily Mail reports that TheresaMay, the Home Secretary, is to soonannounce that the Conservatives willpledge to pull out of the ‘discredited’European Convention on HumanRights at the next election. Theannouncement has yet to transpire butthe Daily Mail lives in hope.

26: Bosco Ntaganda, a Congolesewarlord, denies charges of murder,rape and pillaging and using childsoldiers at his first appearance in frontof the International Criminal Court.Ntaganda had been wanted untilhanding himself in to the US embassyin Rwanda the previous week.

17: The National Association ofProbation Officers warns MPs in abriefing that outsourcing thesupervision of certain offenders to thelikes of G4S would lead to ‘chaos’.The Government responded bycalling the claim ‘scaremongering’.

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Some 12 months ago, I published a book, Struck Out, analysing the

Employment Tribunal system thatthe Coalition Government hadinherited, and which has since beensubject to dramatic change. Myargument was, in brief, that thesupposed flaws on which the pressfocussed and which in turn havejustified the changes we all knowabout were in fact mythical. Ratherthan foisting employers with aproliferation of speculative claims, amajority of Tribunal claimantssucceeded in proving that there hadbeen unfair dismissal, or unlawfuldeductions of wages, etc. Ratherthan paying huge sums, the valuesof Tribunal victories were by anystandard trivial. Workers whosucceeded routinely leave theTribunals with awards amountingto a tiny fraction of their actual loss.These flaws, I suggested, could betraced back to the policy discussionswithin the Donovan Commission,from which the Tribunal systemdraws its root. Or, they illustrated atension in the earliest years of theTribunal, between its relativelybenign, statutory context, and thedeeper common law traditions towhich the Tribunal’s jurisprudencewas quickly assimilated.

The Industrial Law Journaltermed my proposals to increase theprevalence of reinstatement orders‘controversial’, while otherwisewelcoming the book. The book hada positive review in InternationalSocialism, Labour Briefing,Tribune, and Socialist Review. TheNew Law Journal was a little moresceptical, suggesting that my desirefor the de-formalisation of thesystem was ‘deliberatelyprovocative’: ‘times have changedand are not likely to change back’.

On their analysis of the futuredirection of change, sadly, the NLJreviewers were most certainly right.

The most analytical reviewappeared on a website Review 31,where I was criticised for blamingthe system’s ills on certain defaultpractices of the common lawtradition. The reviewer, SimonBehrman, replied: ‘the relativeflexibility of the common lawallows pressure more easily to bebrought to bear from outside thelaw to achieve change, a processthat is often much harder incountries where altering theconstitution or the civil code is alaborious and lengthy process. It isat least arguable, therefore, that thecommon law offers a far lessjuridified set-up than that of civillaw.’ Behrman rejected any hint thatthe civil law tradition practised inEurope might be inherently moresusceptible to workers’ rights:‘While I hold no brief for thecommon law, the argument thatrights enshrined in a constitution inthemselves offer greater equality is aliberal fiction that in practice servesonly to obscure the existing grossinequalities that exist in society.’

It certainly hadn’t been myintention to suggest that the legalsystem of say France or Germanyor even constitutional South Africawere naturally more socialist thanour precedent-based system.Rather, by focussing on thecommon law, my purpose was totry to get at something which I findmissing in most legal analysis. Inother words, an explanation forhow it is that the law feels like itdoes, how it is that judges canmake bad decisions. I wanted toexplain how it is for example that aclaimant (a worker) who puts intheir claim form late can expect the

most robust refusal of their Claim,whereas a respondent (anemployer) who engages withproceedings for the first time onlymonths after they were required towill inevitably be allowed in todefend the case.

I was interested in other wordsin the subtle class privileges of thelaw, and I focussed on the commonlaw as this is the actual point, Ibelieved, rather than anythingasymmetrical about the statutoryprovisions, where the unequaltreatment of workers andemployers came in.

Of course, since 2010, theCoalition has been busy disturbingthe formal symmetry of employmentlaw, requiring one side only(impecunious workers) to pay fees,introducing one-sided privilege ofemployer’s dismissal conversations,and so on. But these principlesoffend deep against the warp andweft of ordinary law. There is noneed to persuade any reader of thismagazine they are wrong.

The ‘big point’ I was makingwas that subtle class privilege is afeature of litigation. There is noreason why this argument shouldbe relevant only to employmentlawyers. It is just as pressing whenyou ask a judge to suspend aneviction, and the judge refuses to doso because the family has beenwasting its income on a satellitetelevision subscription; or whencare proceedings begin with socialservices’ reports of the parents’chaotic and untidy homes. David RentonReaders of Socialist Lawyer canbuy Struck Out with a 30 per centdiscount and free UK P&P byentering the code ‘PLUSTRUCK’at www.plutobooks.com/page/promo

On the picket line

A year of Struck Out

Unfortunately, Mr Achesonis now facing the loss of hishouse due to financial hardship.His campaign has had a hugeeffect on his family and his wifeworks full time to support him.Despite the solidarity of theBlacklist Support Group andothers, this is the reality of theblacklist and its consequencesfor ordinary families. A recentbenefit raised over a thousandpounds for Mr Acheson but heneeds more contributions tomeet his mortgage. Haldanemembers are encouraged tosend donations to: ‘FiddlersFerry Hardship Fund’ viaWarrington Trades UnionCouncil, 6 Red Gables, PepperStreet, Warrington, WA4 4SB.Declan Owens

27: The Home Office’s latest attemptto deport the Jordanian cleric AbuQatada fails. Three judges in the Courtof Appeal unanimously dismissedTheresa May’s appeal despite herlegal team including three QCs andremind the Home Secretary that‘torture is universally abhorred as anevil’.

9:The Ministry of Justice publishes itsconsultation proposing further cuts tothe legal aid budget – barely a weekafter a previous round of cuts cameinto force. The weeks since have seenprotests and calls for the Governmentto abandon the plans. A petitionagainst the proposals had reached84,000 signatures at the time of writing.

10: In Bogotá, Colombia tens ofthousands of people demonstrate insupport of peace talks designed tobring an end to the long runningconflict with the Farc. The crowds worewhite and chanted that they wantedpeace. The Government has reachedsome agreement over land reformsand will consider political participationof the Farc.

April9:Margaret Thatcher dies.

‘This pensioner chased me upthe road brandishing his sticksinging “Ding dong! The witch isdead”’ – Tory in Cambridge findssympathy on the county councilelection trail the following week

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News&Comment

Protest in London in May 2013.

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Across Europe we have seenwhat austerity really means– the blatant robbery of

working class people. After theattempted raiding of bankaccounts of Cypriot workers andthe onslaught of austerity inPortugal after previous measureswere deemed unconstitutional,working class people in Irelandface the prospect of the robbery ofa ‘property tax’ from their wages,social welfare payments orpension. The Government isthreatening that those that havenot signed up to pay the tax canhave it forcibly deducted from 1stJuly 2013.

This move, to give the Revenuethe power to collect the tax, ispartly due to the success of themassive non-payment campaignagainst the household tax last yearorganised by the CampaignAgainst Home and Water Taxes(www.nohometax.com). Despitemassive propaganda,scaremongering and fear, amajority of single home ownersrefused to pay that tax, which was€100 for every home in thecountry. Hundreds of meetingswere organised across the country,which tens of thousands attended.

In response, the Governmentpassed responsibility to collectingit to the Revenue Collectors. Inaddition, it has been transformedinto a property tax that wasdemanded by the Troika as part ofthe so-called bailout deal. This is atax of 0.18 per cent of the value ofresidential property. This is not a

tax on the wealth of the rich but onworking people’s homes.

Despite the propaganda, theseare not taxes to fund or improvelocal public services. In fact, thefunds for local public services arebeing cut. Instead, this is a bailouttax, pure and simple. The moneywill go to fund what is, relativelyspeaking, the world’s largest bank-bailout. While the property tax issupposed to yield €500 million,€26 billion in taxpayers’ moneywill be handed over to thebondholders this year – betweenpayments on the national debt andpayments by the bailed-out banks.

The anger against the propertytax and the household tax are notsimply about the unjust taxesthemselves. They have become alightning rod for opposition to thepolitics of austerity and bankbailouts generally. In the face of aTrade Union leadership that hasfailed to lead any fight back, theCampaign Against Home andWater Taxes has become animportant vehicle by which peoplecan respond.

The strategy of the campaign isto maintain the boycott,encouraging people not to registerby the deadline of the end of May2013. According to an opinionpoll, 29 per cent of people plan notto pay. This year, however, thecampaign is emphasising, thatnon-registration alone is notenough, because of the power ofthe Revenue to deduct the tax.Therefore it has to be matchedwith a massive campaign of

protest and political pressure tomake it very difficult for theGovernment to take the politicaldecision to forcibly deduct the tax.

The context for this struggle isthe weak nature of theGovernment and the vulnerableposition of the Labour Partycomponent in it in particular. TheGovernment is a coalition betweenthe traditionally right-wing FineGael and supposedly social-democratic Labour Party. In arecent by-election, Labour washumiliated, with its vote goingfrom 10,000 to less than 1,000votes. It has been weakened bydefections and it faces a wipe out innext year’s local and Europeanelections because of its slavishimplementation of Troika diktats.

The strategy of the campaignnow is to pile the pressure on. Weneed the largest possible boycottfor this and the campaign shouldbe linked to the growing fightagainst cuts and attacks in the tradeunions, as seen with the rejection ofa new pay-cutting deal for thepublic sector which was advocatedby the majority of Trade Unionleaders. The No vote to this dealwas a clear vote against austerity.

The recent conference of theCampaign agreed that localcampaigns should now discussstanding anti-home tax and anti-austerity candidates in the 2014local elections. It is a method whichcan be used to force Labour tothink twice about deducting theproperty tax from people’s wagesand welfare.

A turning point is being reachedin Ireland, whereby people cansimply take no more. Paul Murphy – Socialist PartyMember of the European Parliamentrepresenting Dublin

Ireland: revolt againstproperty tax robbery

April21: A Brazilian court sentences 23police officer to 156 years in prisoneach for their role in the killing of 111inmates during the prison uprising atCarandiru in 1992. Three officers wereacquitted and more are to stand trial inthe months ahead.

14: Chris Grayling MP continues topander to the Tory backbenches as heannounces that prisoners are to have anumber of ‘perks’ removed. Graylingwants to stop prisoners using gamesconsoles and watching Sky Televisionas well as requiring them to wearuniforms rather than their own clothes.

22: Barristers and solicitors in thenorth west of England hold an all-daymeeting to discuss the Government’splans to reform legal aid. The de factostrike saw a few hundred barristersmeet in a hotel in Manchester todebate the proposals. A spokesmanfor those involved said the ‘turnoutdemonstrates the strength of feelingacross the criminal bar. There is asense of unity within the room’.

11: The chief executive of StobartGroup, the trucking group andrumoured future of legal services, is togo on trial for contempt after awhistleblower won part of a High Courtcase against him and the group’s legaldirector. A judge ruled that AndrewTinkler and Trevor Howarth may havelied in order to silence a whistleblower.

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News&Comment

Give peace a chance in the Basque Country

Twenty months ago, theBasque Seperatist groupEuskadi Ta Askatasuna

(ETA) abandoned its armedstruggle in order to seek a politicalanswer to the question of Basqueself determination. The SpanishGovernment refused at the timeand continues to refuse to engagewith the peace process ETAattempted to begin. Meanwhile,over 600 Basque political prisoners– a startling number for any nation– remain isolated in prisons acrossEurope. Most are in Spain andFrance, six are in the UK, andalmost all are being held outsidethe Basque Country as a result ofSpain’s policy of dispersal.

Prisoners suffer from acuteisolation, their family membershaving to make an average roundtrip of 1,300 kilometres just to visitthem. Several of them are seriouslyill. Two have recently died.Harassment, the use of solitaryconfinement, and medical neglectare said to be systematic andwidespread. Many are still subjectto de facto life imprisonment.

In this context, efforts are beingmade by lawyers, politicians andactivists both from the Basquecommunity and outside tohighlight Spain’s intransigence andrepeated human rights abuses.

On 16th April 2013 a publicmeeting was called by Campacc,supported by The Haldane Societyand European Lawyers forDemocracy and Human Rights(EDLH). Gorka Elejabarrieta, arepresentative of the SortuInternational Department andformer representative of theAbertzale Left in the European

Parliament, said a broad consensusexists that this is a political conflict,that autonomy is not enough, andthat the Basque people need to begiven the right to determine theirfuture freely. There is no politicalwill on the part of France andSpain to engage with a peaceprocess and the current situation istherefore unsurprising – howeverthis will not stop the Basque peoplecontinuing to build trust anddemonstrate their commitment toa democratic solution.

He said that the situation ofpolitical prisoners had to bebrought to light and all prisonersreleased in order to enable anymeaningful peace process.Humanitarian issues had to beaddressed. Dispersal must end andthe Spanish and Frenchgovernments must no longer bepermitted to hide behind ‘security’.

Asier Aranguren, a formerpolitical prisoner himself, spokeabout the Collective of BasquePolitical Prisoners and theirstruggle to oppose unjust prisonlaws in the face of concerted effortsto stifle political discussions andprevent organisation. Despiteenforced isolation, visitorrestrictions, phone tapping,aggressive searches and dispersalacross more than 90 prisons theCollective survives and continuesits effort in the search for ademocratic path to selfdetermination.

Iraxte Urizar, lawyer andmember of the BasqueObservatory for Human Rights,spoke about the attitude of theSpanish authorities and theirefforts to bring in as many special

measures as they could, justified bya purported ‘war on terror’. TheEuropean Arrest Warrant she saidhas been a huge boost to theGovernment who use it to seekextradition on the basis thatEuropean partners trust each otherand don’t ask questions.

Alastair Lyon of Birnberg Peirceand Partners represents Basqueprisoners in the UK in their fightagainst extradition. He spokeabout the staggering level of denialon the part of the SpanishGovernment, judicial and medicalauthorities when presented withcompelling evidence of torture.Despite hearing direct evidence oftorture, from those prisoners braveenough to report mistreatment,and despite international humanrights reports saying ‘this mustend’, claims of torture were beingignored in Spain. Arrest,incommunicado detention,extracted confessions and torturecontinues while Spain remains a‘trusted extradition partner’.

The struggle to establishengagement with the peace processcontinues. It is faced withindifference in the mainstreamBritish press. However, the All-Party Parliamentary Group onConflict Issues met on 4th June2013 to discuss civil society, peaceand the Basque Country. The aimwas to consider the outcome of asocial forum that took place in theBasque country in March 2013 inPamplona and Bilbao to promotecivil society participation in thepeace process. Further details canbe found at www.c-r.org/resources/event-basque-appg-4-juneElizabeth Forrester

May25: Newspapers reject a plan forpress regulation agreed by the threemain political parties following theLeveson Inquiry. The newspapersdid not agree to a regulatorunderpinned by a Royal Charter andproposed their own suggestion.Critics said it was evidence theindustry had not learnt anything fromLeveson.

2:A judge rules that a new inquest intohow 96 people lost their lives at theHillsborough football stadium in 1989must be held in the north-west. LordJustice Goldring decided that theinquest must be near to where thefamilies live in order to allow as many ofthem to attend as possible andconveniently. A number of the familieshad argued that the inquest should beheld in London.

9: In Chile, Jose Manual Garcia Reyesand Hector Palomino Lopez areconvicted of the murder of the BritishRoman Catholic priest MichaelWoodward. The two served in theChilean navy during AugustoPinochet’s brutal coup 40 years ago.However, the whereabouts ofWoodward’s remains have never beendiscovered.

9: In Uruguay a serving general issentenced to 28 years imprisonmentfor human rights abuses. GeneralMigual Dalmao was a 23-year-oldlieutenant during dictatorship-eraUruguay. His lawyer said he wouldappeal the verdict and called theevidence ‘invented’.

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News&Comment

ELDH General Assembly inBerlin – 4th to 5th May 2013

Members of Haldane’sExecutive Committeeattended the General

Assembly of the EuropeanLawyers for Democracy andHuman Rights (ELDH) at the HQof the German ver.di trade union inBerlin on 5th May 2013. Memberorganisations in nine Europeancountries were represented.

On 4th May 2013, theconference ‘Migrants – OutlawsEverywhere’, organised by ELDHand the VDJ, Haldane’s Germansister organisation, was achallenging and inspiringconference, with more than 100participants. Adrian Berry, abarrister at Garden CourtChambers and Haldane member,was one of a number of speakersfrom seven European countries andTogo. The speakers were lawyersand activists who brought togetherexperience of the discrimination,abuse of criminal law andexpulsion suffered by migrants andthe fight for justice, solidarity andresistance. See www.eldh.eu/publications/publication/migrants-outlaws-everywhere-the-alien-as-an-enemy-162/

Other organisations taking partin the conference included: AKJ-Berlin (students at HumboldtUniversity); the London-basedCampaign Against CriminalisingCommunities (CAMPACC); theELDH partners EuropeanDemocratic Lawyers; Fight RacismNow; the Refugee Council, Berlin;Group for Information andAssistance for Immigrants from

France; Medico International; andthe Rosa Luxemburg Foundation

Highpoints of the ELDHGeneral Assembly included thepresence of three ELDH membersfrom the Basque Country,solidarity with Basque lawyers hadbeen the focus of the ‘Day of theEndangered Lawyer’ organised byELDH in January 2013.

In January 2014 it will focus onthe dangerous situation of lawyersin Colombia. The first one in 2012concerned Turkey, where lawyerscontinue to be under very seriousattack. Münip Ermiş, from ÇHD,the Turkish Progressive Lawyers,took an active part in the GeneralAssembly. Selçuk Kozağaçli, theChair of ÇHD, who spoke atHaldane’s Human RightsDefenders conference in 2012 atAmnesty UK, is still in prison inTurkey. The President of theIstanbul Bar Association has nowbeen prosecuted together with nineboard members.

The KCK lawyers arrested inNovember 2012 number 46accused, with 22 still detained. Thenext hearing was taking place on20th June 2013.

The group of lawyers fromHaldane’s sister organisation ÇHDarrested in January 2013 number16 lawyers accused, of whom nineare detained. Their trial maycommence in September 2013.ELDH will be organising solidarityand observers. Please contact me ifyou are interested in acting as anobserver at either trial.

The General Assembly was also

attended by Alexey Kozlov, anenvironmental activist fromVoronezh, Russia. He told usabout attacks on the freedom ofassembly in Russia in general; thenew requirement for NGOs toregister as a ‘foreign agent’ in thecase of any contacts outsideRussia, with large fines (500,000roubles) and imprisonment forfailure to do so; the circumstancesof the demonstration at BolotnayaSquare in Moscow on 6th May2012 and the subsequentprosecution and detention of left-wing activists since, with thethreat of up to 13 years’imprisonment.

ELDH has been asked tosupport the project for anInternational Expert Commission(IEC) for Evaluation of Events onBolotnaya Square in Moscow on6th May 2012. This is the firstlarge-scale persecution of the leftby the Putin regime. There was aserious and engaged discussion onthis topic in which many of thosepresent participated and in whichthere was opposition to ELDH’sparticipation by our Greek andSpanish comrades. Following thediscussion, the Executive agreedthat ELDH should support theIEC.

We are working for closercooperation between progressivelawyers in Europe. Frédéric Ureel,the European DemocraticLawyers’ President, attended theELDH General Assembly. Thenext meetings of the EuropeanDemocratic Lawyers’ executiveare 25th October 2013, in Rome,and the end of January 2014 inBarcelona. Please contact me([email protected]) if youwould like to come.Bill Bowring

Defendaccess toadvice

On 9th February 2013, theManchester-based Accessto Advice campaign

organised a successful conferenceon the theme of ‘Free Legal Advicein Crisis’. The Haldane Societywas one of 13 sponsoringorganisations. Jean Betteridge ofAccess to Advice welcomed over120 delegates who were inattendance from across GreaterManchester, Merseyside,Cumbria, Shropshire and beyond.

A wide-ranging keynoteaddress was given by Steve Hynes,Director of the Legal ActionGroup, in which the ‘big picture’of the imminent changes affectingsocial welfare law advice serviceswas set out and the experience andlessons from the campaign overLASPO (Legal Aid, Sentencing andPunishment of Offenders Act)were drawn upon.

The conference then broke intofour workshops considering thesubjects of housing, employmentand unemployment; family anddebt; migrants and BMEcommunities; and disability andsickness. Each workshop wasencouraged to consider adviceneeds and provision beforeagreeing action points to be fedback into the wider report fromthe conference.

Julie Bishop, Director of theLaw Centres Network led off theafternoon session with a keynoteaddress which further reflectedupon the LASPO campaign and

May21: The Bar Council releases anopinion poll suggesting more than 70per cent of the public fear further cutsto legal aid will result in miscarriages ofjustice. The survey also found thatthose most likely to be affected wouldbe the poorest.

21: In Guatemala, the ConstitutionalCourt overturns the genocideconviction of the former dictator JoséEfraín Ríos Montt. The ruling was seenas a blow to those campaigning forjustice following Latin America’s ‘dirtywars’. The general had earlier beensentenced to 80 years in prison forcomplicity in the deaths of 1,771people.

22: Approximately 500 barristers,solicitors and representatives from theNGO community protest publiclyoutside Parliament against theGovernment’s proposals to further cutback legal aid and prevent individualsfrom choosing their representatives incriminal cases. Some 1,000 peoplelater attend a meeting at Friend’sHouse in Euston to express theirshared opposition to the Government’sproposals to transform legal aid.

17: Former Argentinian dictator JorgeRafaél Videla dies in prison aged 87.Videla had been a member of thegroup who seized power in LatinAmerica in the 1970s and becameresponsible for the disappearance ofthousands of people, including tradeunionists, journalists and dissidents.

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News&Comment

AJMpPl

The All-Party ParliamentaryGroup on Legal AidMeeting on 15th May 2013

started with a number of speakers,including Laura Janes, from TheHoward League for PenalReform, who spoke of the ‘hiddenconsequences of the cuts’. Shedescribed how the end of fixedfees in prison law would removematters of rehabilitation fromscope as only disciplinary andparole hearings would be funded.

She stated how this is short sightedas these proposals save anestimated £4 million. She spoke ofthe end of specialist providers andhow no firm will be able to have asolely prison law practice. Instead,general practitioners will beawarded general contracts and beunable to turn down prison lawwork under the cab rank rule.Lastly, she spoke of the 17.5 percent fee cuts, which will hit expertsas well.

Ms Janes then discussed howthe ‘transformation’ would affectjudicial review claims. Owing tothe gamble of taking on workwhere one only is paid when thecourt gives permission tojudicially review, there will be aclear risk of hours of work donewithout pay. This will lead to afocus away from risky cases withwide public interest and will make judicial review as a practicearea untenable.

examined the practical landscapegoing forward.

Reference was made to afailure to engage in the real fight inopposing an ideologically drivenagenda which seeks the removal ofGovernment responsibility and iscoupled with a return to theVictorian idea of charities beingthe welfare safety net for the poor,who themselves are deemed to bethe authors of their own situationsand attendant difficulties.

Further workshops were thenfacilitated looking at campaigningand awareness; monitoring adviceneeds; alternative models andtechnology; and collaborations/networking in a context ofincreasing competition amongadvice providers.

Lord Bach then addressed theconference in which theimportance of the LowCommission – a serious projectlooking at the future of legal aidprovision – was stressed and activecontributions from those presentencouraged. The challenges ofcontinuing to work together andto argue for pledges frompoliticians to restore what hasbeen lost as the next electionapproaches were also emphasised.

The conference’s final sessionsaw Yvonne Fovargue MP, Chairof the All-Party ParliamentaryGroup on Legal Aid join the keyspeakers in a panel chaired byDenise McDowell of the GreaterManchester Immigration Aid Unitand which saw many questionsraised and comments made bydelegates.

A full report of the conferencecan be found at http://gmwrag.files.wordpress.com/2013/04/full report 9 feb 2013.pdf John Hobson >>>

A family member of Jean Charles De Menezes addresses the protest outside Parliament on 22nd May.

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Campaigning for legal aid

June24: The High Court rules that theGovernment must hold inquests intothe deaths of civilians allegedly killedunlawfully by British military personnelin Iraq. The court said the hearingsmust involve a ‘full, fair and fearlessinvestigation accessible to the victims’families and to the public.’

4:Around 13,000 replies are sent tothe Ministry of Justice in response to itsconsultation on transforming legal aidas the deadline for responses closes atmidnight. Earlier in the day lawyersprotested en masse outside theMinistry of Justice, resulting in theclosure of the road outside the Ministry,to express their firm opposition to theproposed further cuts to legal aid.

5:Lawyers acting for the threesurviving most senior police officers onduty during the Hillsborough disasterhave questioned the independence ofthe Government’s panel whichreported on the tragedy. John BeggsQC said ‘We do not regard the reportas independent’. The inquest is tobegin in March 2014.

7:A student is sentenced after sayingon Twitter that people who wore Helpfor Heroes t-shirts ‘deserved to bebeheaded’. The case followed themurder of Drummer Lee Rigby. DeykaHassan had complained to police afterreceiving threatening replies. She wasordered to complete 250 hours ofunpaid work.

SL64_pp4-11_news 13/06/2013 22:43

News&Comment

Tim Owen QC fromMatrix Chambers then spoke ofthe achievements of publiclyfunded prison law cases over thepast 30 years and spoke of howthese changes will hit prisoners’rights as well as the propermanagement of prisons.

Mike Fordham QC ofBlackstone Chambers brilliantlyspoke of ‘timewasters’ and ‘theunworthy’ in the language andsubtext of the cuts. The‘timewasters’, he said, are thosewith weak claims, but hecontrasted this with how theactual proposals are not cuttingfunding for those without merit,but for those without permission.Mr Fordham clearly stated thatthe responsibility for determiningthe viability of claims lies withcounsel and that judges will notalways agree with counsel’sopinion; however, withoutcertainty as to viability, judicialreview cases will not go forwardunder the proposed changes.

Regarding ‘the unworthy’,Fordham then went through a

chilling list of what theGovernment considers‘unworthy’, from sanitationconcerns to issues of mother andchild in prison. Fordham endedhis contribution by declaring thatif these cuts go through, we willhave to call the department the‘Ministry’, as it will no longer bethe Ministry of Justice.

Alison Harvey of theImmigration Law Practitioners’

Association (ILPA) thendiscussed the

impact of theone-yearresidencyrequirement,stating howthis would be

a breach of access to justice andequality before the law.

There was discussion of theOrwellian nature of the languageof the Government’s consultationdocument on the proposed cutswith calls to focus not just on thecuts to legal aid but on the wholesystem, in which we aremarketing British justice to richforeigners, while closing justice’sdoors at home.

There followed a movingcontribution from a motherwhose severely disabled sonbenefitted immensely from thehelp of prison lawyers.

Haldane ExecutiveCommittee member Paul Heronof Public Interest Lawyers argued

that these proposals were anideological assault on thevulnerable. He followed with theproposal of organisation andstrike action, calling on lawyers asworkers with the slogan: ‘If notnow, when?’

A campaigner from LegalAction for Women then also calledon the profession to organise,saying ‘We have to go for broke’.

Haldane Executive committeemember Stephen Knight gave aspeech pushing for a united frontagainst the cuts and presentingThe Haldane Society’s recentlypassed proposals. These can befound at www.haldane.org/news/haldane-policy-strategy-regarding-legal-aid-cuts.html.


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Biana Jagger was one of the speakers addressing demonstrators outside the Ministry of Justice on 4th June.

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“I know that without legal aid I would still be inprison. Back in the 1970s they sent innocentpeople to jail by the vanload. But if thesecuts go through they’ll be sending them in

by the Eddie Stobart truckload.” Gerry Conlon of the Guildford Four

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There are some days when Ireally appreciate theinstitution that is the Today

programme. Radio 4’s flagshipcurrent affairs show; combiningin-depth reporting, objectiveanalysis and searching interviewsconducted by fiercely independentpresenters, in a way that makesme feel mildly patriotic every timethe direct debit for my licence feeleaves my account. But there arealso days when I appreciate it alittle less. Those days where Iwake up at 7am to JohnHumphreys berating some poorsoul into submission. Or to somepolitician loudly exhorting theirlatest policy in a torrent ofpolemical, jingoistic rhetoric. Onthose days, I find myself thinking,it is just too early in the morningfor this. The 23rd April 2013 wasone of those days. On that day I woke to the Justice SecretaryChris Grayling, thunderouslydefending the Government’s latestproposals to ‘transform’ legal aid,posing the rhetorical question,why should we be spending publicmoney on legal aid for peoplewho have no connection to thiscountry?

Several hours later, when mybrain has completed theponderous process of waking up,an answer to this question dawnson me in the form of a name:James Somerset.

For those who have never comeacross the case of Somerset vStewart 98 ER 499 – decided inthe Easter Term of 1772 in thereign of King George III – the headnote of the case gives you all of thebackground that you need: ‘[o]nreturn to an habeas corpus,requiring Captain Knowles toshew cause for the seizure anddetainure of the complainantSomerset, a negro…’. Havingconsidered the matter for a littleover a month, Lord Mansfield,returned a short judgment that hasnonetheless, managed to ringthrough legal history:

‘The state of slavery is of such anature, that it is incapable of beingintroduced on any reasons, moralor political; but only positive law,which preserves its force long afterthe reasons, occasion, and time

itself from whence it was created,is erased from memory: it’s soodious, that nothing can besuffered to support it, but positivelaw. Whatever inconveniences,therefore, may follow from adecision, I cannot say this case isallowed or approved by the law ofEngland; and therefore the blackmust be discharged.’

Though Somerset’s case did notput an end to slavery, it was asignificant milestone on the roadto abolition. To my way ofthinking it probably marks thesingle most importantcontribution to this goal made bythe common law and lawyers.

And so with Mr Grayling’svoice still echoing around myhead, it dawns on me that underthe new proposals – specificallythe proposed ‘residence test’ forlegal aid – James Somerset wouldnot get legal aid. If JamesSomerset applied for publicfunding to make an applicationfor the habeas corpus, the LegalAid Agency would have to refusehim. What would they say?

‘Dear Mr SomersetWe regret to inform you that yourapplication for full representationhas been refused. This is becauseyou are not lawfully resident inthe UK. In your application youhave told us that you are the slaveto a Mr Stewart of Virginia, andthat you are currently detainedwithout your consent in the vesselof his agent, Captain Knowles,lying in the river. On theinformation you have providedwe are not satisfied that you havebuilt up a sufficiently strongconnection with the UK whiledetained in the vessel to justify thegrant of public funding. As thelawful property of Mr Stewart wedo accept that you are lawfullypresent in the UK. However, aswe have said, you are not lawfullyresident. The distinction, as I amsure you will appreciate, is animportant one.

Further, while we accept thatthere may be a wider publicinterest in the abolition of slavery,you will understand that we haveto focus limited public resourceson the most important cases. As

This regular column is written by YLAL members. If you are interested in joining orsupporting their work, please visit their website www.younglegalaidlawyers.org

Laws should apply to everyone

These contributions weregenerally well received, with evenDavid Lammy MP stating thatthere is a need for strike action totake the message to the widerpublic.

The meeting on 15th May2013 was followed on 22nd May2013 with a demonstrationattended by hundreds of lawyersoutside of Parliament who heardfrom a series of speakersincluding politicians, lawyers,and those who have sufferedgrave miscarriages of justice suchas Gerry Conlon. During theafternoon of 22nd May 2013,the Friends’ Meeting House nearEuston was packed as againspeakers spoke out against theproposals. The unifiedopposition was palpable. Itincluded unanimous motionsagainst PCT and bidding forcontracts, QASA, and for theprofession to ‘institute a rollingnumber of training daysincreasing in number in dates tobe announced’. Keep up to dateon this summer’s campaignagainst the legal aid cuts atwww.haldane.org/news/category/legal-aid. Natalie Csengeri

you know, as part of an export ledeconomic recovery, slavery formsan integral part of King George’sdeficit reduction strategy. We arealso increasingly concerned thattax payer money is being used tosubsidise frivolous applicationsfor habeas corpus.

You have asked us to take intoaccount your EU rights and yourrights under the EuropeanConvention on Human Rights, inparticular Article 4 the prohibitionof slavery. We have had regard tothese matters. However they needto be balanced against MrStewart’s right to hold propertyunder Article 1 Protocol 1European Convention on HumanRights, and the principle of freemovement of goods. We aresatisfied that refusing legal aid inthese circumstances is a necessarystep to restore the credibility of thelegal aid system as a whole in theeyes of the public.RegardsThe Legal Aid Agency’

Absurd? Of course it is. That’sthe point. The laws in this countryshould apply to everyone. Popular,unpopular, citizen or migrant. It isabsurd and regressive to thinkotherwise. That is what equalitybefore the law means. As LordScarman put it in ex p Khawaja[1984] A.C. 74, 111, ‘[h]e who issubject to English law is entitled toits protection. This principle hasbeen in the law at least since LordMansfield freed “the black” inSomerset’s Case.’

Mr Grayling is not just an MPor the Secretary of State of Justice;he is the Lord Chancellor. Hisconstitutional role in upholdingthe rule of law is expresslypreserved by section 1Constitutional Reform Act 2005.And pursuant to section 6APromissory Oaths Act 1868, upontaking office, he swore ‘that in theoffice of Lord High Chancellor ofGreat Britain I will respect the ruleof law’. So it is particularlyworrying that Mr Grayling seemsto be unaware of these principlesand this history. Connor Johnston is the Co-Chairperson of Young Legal AidLawyers

YoungLegalAid Lawyers

SL64_pp4-11_news 13/06/2013 22:43


As part of the Government’s plans to savemoney and make public services more efficientby privatising them, the Ministry of Justiceentered a four-year framework agreementworth £168 million in August 2011 with asmall private language service provider,Applied Languages Solutions Ltd, to providelegal interpreting services potentially across thewhole justice system. A further five-yearcontract, under the framework agreementcovering foreign language and deafinterpreting services in court and tribunalsworth £90 million, signed by the Ministry ofJustice in October 2011, took effect in January2012. Applied Languages Solutions Ltd wasacquired in December 2011 by Capita, and isnow known as Capita Translation andInterpreting.

The new system created by the frameworkagreement fell apart long before it went live.Under the previous National Agreement,interpreters were largely picked from theNational Register of Public Service Interpreters,the United Kingdom’s independent voluntaryregulator for the interpreting profession,formed in 1994. As the new agreement wouldsee the rates paid to interpreters slashedsignificantly, the introduction of other costs,and a new tier system for qualification, lackingindependent regulation and falling far belowprevious high levels of qualification, mostinterpreters have refused to work for AppliedLanguages Solutions Ltd/Capita, with a boycottby more than 60 per cent of registeredinterpreters. Problems thus immediately arosewith supply and quality and, within weeks,many courts had reverted back to the oldsystem of booking interpreters independently,retained as a contingency.

With the focus largely on the quantitativeelement of the deal, the quality of the serviceprovided has suffered. Skilled legal interpretersdo far more than speak two or more languagesas they have to negotiate the gulf betweendifferent legal systems, as well as cultural issueswithin the same language community, such aspolitics, gender and ethnicity. Problemsencountered and reported in the mainstream

press have included interpreters failing to turnup on time or at all, interpreters unaware oflegal language and court proceedings, unable tospeak English, and, in some cases, the foreignlanguage for which they were assigned. Caseshave been affected by interpreters onlyadmitting later that they spoke the wronglanguage or had misrepresented what was said.

Applied Languages Solutions Ltd/Capitaand the Ministry of Justice put the problemsdown to early ‘teething problems’. However,Ministry of Justice statistics taken from Capitaissued at the end of March 2013 show that, forthe first year of the contract, out of the morethan 130,000 requests made for languageservices covering 259 languages, there was onlya 90.2 per cent ‘success rate’ for the wholeperiod, consistently falling far below the 98 per

As the Ministry of Justice prepares to carve up criminal legal aid, Aisha Maniar lo

‘...if an interpreter is required justice cannot be done without one and a case c

cent target set in the contract. In the first monthof the agreement, that rate was 67 per cent, risingby the summer but then falling back again byJanuary 2013 to 86 per cent. In the same period,almost 6,500 complaints were made, increasingin the last six months of statistics (June 2012 –January 2013).

In an appeal case in March 2013 againstordered costs for interpreter non-attendance,Capita won as the failure to provide an interpreteras a one-off was not considered ‘seriousmisconduct’; the judge nonetheless dismissed itsargument that it only need deliver 98 per cent ofthe time: ‘the provision of an interpreter whereeither a witness or a defendant does not speakEnglish (or Welsh), is essential. Without one a casecannot proceed … It is simply no use to a courthaving an interpreter there on 98 per cent ofoccasions when interpreters are required, becauseif an interpreter is required justice cannot be donewithout one and a case cannot proceed. Aninterpreter is required on 100 per cent of such occasions.’

With so many failings in its first year ofoperation, the framework agreement has beenthe subject of inquiries by two parliamentaryselect committees and the National Audit Office.The National Audit Office’s findings werepublished in a memorandum in September 2012.It criticised the handling of the procurementprocess and stated that the Ministry of Justicehad not been informed of various contractualbreaches, relating to Applied LanguagesSolutions Ltd/Capita’s inability to assess rarelanguages and perform checks on interpretersuntil they were discovered by the National AuditOffice. The Ministry of Justice was also criticisedfor failing to impose contract penalties for clear,repeat breaches. These were only applied afterMay 2012, more than three months later.

This memorandum largely informed inquiriesby the Public Affairs Committee and the JusticeSelect Committee held last autumn. The PublicAffairs Committee report, published inDecember 2012, criticised the Ministry ofJustice’s failure to carry out adequate pre-contractual due diligence on its supplier, andraised concerns about persisting quality issues

No po prostu Rien de moins

(Nothing short of...)

Interpretersoutside the Housesof Parliament inApril....

shaSL64_pp12-13_interpreters_print 13/06/2013 22:41

r looks at the disastrous attempt to privatise the interpreting services in UK courts

e cannot proceed. An interpreter is required on 100 per cent of such occasions.’

and the failure to provide suitable linguists. All three reports criticise the lack of

competition in the procurement procedure andthe near-monopoly granted to AppliedLanguages Solutions Ltd/Capita on courtinterpreting services. Margaret Hodge MP,Public Affairs Committee Chair, accusedMinistry of Justice staff of replacing a ‘publicmonopoly’ with a ‘private monopoly’ underthis agreement.

The Public Affairs Committee inquiries alsocriticise the role of Capita, well known for itsprivate ownership of public service contracts.Capita, with no previous experience in languageservices, was not part of the 2010 tenderinvolving 126 companies, all small or mediumenterprises, which most language serviceproviders are. In view of that situation, it is notclear that Capita would have been eligible to bidon its own merit. Although Capita is well knownfor its mismanagement of public contracts, theMinistry of Justice feels reassured by itsinvolvement. With underperformance and errorsby Capita, questions have been raised as to whythe Ministry of Justice consistently defends thecontract it made; the contract could have beenterminated for breach at any time given thatcontract terms have not been met in the past 15months. Many interpreters would welcome theframework agreement’s termination.

The Justice Select Committee published itsreport in February 2013 and found that therewas no fundamental problem with the qualityof service in the old system and the Ministry ofJustice had failed to understand thecomplexities of what was involved. During itsinquiry, it also discovered that the Courts andTribunals Service ‘had actively discouraged itsstaff from submitting formal written evidence’,including through an anonymous online forum.Sir Alan Beith MP, Justice Select Committeechair stated, ‘The Ministry of Justice’s handlingof the outsourcing of court interpreting serviceshas been nothing short of shambolic.’

The Ministry of Justice published itsresponse to the Justice Select Committee reportrecommendations on 25th April 2013, offeringa new package to entice qualified interpreters,

and offering a 22 per cent increase in currentrates under the framework agreement, changesto the tier system and independent monitoringof it. This is unlikely to make much of adifference to the current situation and amendsthe original framework agreement.

While Capita reported making no profit onthe agreement in its first year and faced fines ofaround £2,000, Helen Grant MP, ParliamentaryUnder-Secretary of State for Justice stated, ‘Ourchanges have saved taxpayers £15 million thisyear.’ The Justice Select Committee report saysthat much of this will fall back on Capita. Thisdoes not take into consideration the expensegenerated and continuing to rise due to delays orretrials, individuals held on remand as aninterpreter could not be found for a 15-minutehearing, or rescheduling of trials. Neither does itcompensate the distress caused to claimants or

defendants and the loss of confidence in thecourt and legal process. There is huge potentialfor a miscarriage of justice in the newarrangement.

The damage is done. In the latest publicscandal, on 10th May 2013, pleas were notentered on charges in a quadruple murder caseat Nottingham Crown Court as a Mandarininterpreter failed to attend due to the low rate ofpayment; the judge described the outsourcerCapita as a ‘complete disgrace’ and adjournedthe hearing. Local MP, Michael Ellis, has said hewill raise the issue of the privatisation of courtinterpreting services in the House of Commons.

For many interpreters, working under thenew agreement is not an option as they wouldbe working at a loss. Central to the service, it isunsurprising that qualified and skilledinterpreters refuse to engage in a system thathas completely sidelined them. Improvementshave been made in the past 15 months, butthere is still a long way to go in improving thecurrent arrangement, as well as bringing it backto the performance and quality level of the oldsystem it replaced.

Margaret Hodge MP summed up the PublicAffairs Committee inquiry by stating, ‘almosteverything that could go wrong did go wrong’and that the answers given by the Ministry ofJustice concerning the failings in this ‘relativelysmall procurement contract … give meabsolutely no confidence’ that contracts forprivate prisons, for example, will be procured‘in an effective way for the taxpayer’. TheCriminal Law Solicitors Association’s vice-chairman, Robin Murray, also recently referredto this failed privatisation contract in theMinistry of Justice’s current plans to privatisecriminal legal aid, stating ‘it repeats the samemistakes all over again.’ A further test will arisefor the Ministry of Justice and its support forCapita later this year when in October,European Union Directive 2010/64/EU on theright to interpretation and translation incriminal proceedings comes into force.

Aisha Maniar is a freelance legal translator and editor.


... andoutside theMinistryof Justice.

ambolicSL64_pp12-13_interpreters_print 13/06/2013 22:41


June 2013 marks 105 years since the birth of SalvadorAllende, the President of Chile overthrown in the brutalcoup of 11th September 1973. Allende was Chile’s greatestPresident, a man of international stature widely respectedby both revolutionary firebrands and social democrats. By being elected the world’s first Marxist President Allendebroke the mould of the Cold War, and blazed the trail fortoday’s Latin American revolutions. The Popular Unitygovernment and the coup that overthrew it were definingevents of the early 1970s, and most political people alive atthe time know something about the coup and have theiropinions about why it came about.

The current economic crisis and social discontent acrossmuch of the world makes the study of the victory of thePopular Unity more relevant than at any time since 1973.Capitalism has shown itself unable to bring peace, humandevelopment or economic justice. Armed revolution is notan option in countries with developed political systems anddemocratic habits. It is therefore interesting to examine howthe Chilean left was able to have a Marxist President electedin an open alliance with a Communist Party, even in themidst of the Cold War and in the face of massive USinterference.

Since 1973 much of the analysis of the Popular Unity hasfocused on its failures, on the roots of its downfall and noton its successes. Yet looking back today we can see that itwas Allende’s victory that was the more defining moment.In Chile today many of the demands being made by theincreasingly militant social movement echo the policies ofthe Popular Unity government – free education, improvedhealthcare, democratisation and control of Chile’s vastwealth of natural resources. Across Latin America andbeyond the left is building electoral coalitions and massmovements in order to change society, following inAllende’s footsteps.

The Popular Unity was the result of a long process ofpolitical education and alliance building. It came aboutbecause a generation of political leaders that had beenforged within the earlier Popular Front government of 1938to 1948 came to believe in the viability of an institutionalroad towards socialism. The leading light of this generationwas Salvador Allende, a doctor who was made HealthMinister by President Pedro Aguirre Cerda in 1939.

Although the Popular Front was not a revolutionarygovernment, it did carry out a series of important reformsthat helped democratise education, access to healthcare andsome forms of welfare, at the same time as giving the Statethe leading role in the economy. This government in manyways laid the basis for Chilean development until 1973.However, the Popular Front was unpopular with manysocialists in particular, who felt that their participation wasproviding legitimacy to an increasingly right-winggovernment. The Party split. Then in the wake of thevictory over fascism in 1945, and with the onset of the Cold War, the US began to push for the expulsion of theCommunists from the government. This duly occurredtowards the end of 1948, with President Videla tellingCommunist leaders that he had come under heavy pressurefrom the US to do so. It was the first time that foreigninterference had played a determining role in Chileanpolitics since the 1891 civil war.

In the wake of the Popular Front demise, the leftfloundered. Membership of the Communist Party becameillegal, with the famous communist poet Pablo Nerudaforced to escape over the high Andes into exile. Thousandsof their supporters were wiped from the electoral rolls.Their leaders were beaten and imprisoned in concentrationcamps in the northern deserts. Meanwhile the Socialistswere divided. In 1952 during his campaign for thepresidency Salvador Allende formed an alliance between his

Salvador

ALLby Victor Figueroa Clark

SL64_pp14-17_allende-syria_print 13/06/2013 22:43

small Socialist faction and the Communist Party. The People’s Front with Allende at its head was forced tocampaign with no money and with much of its support basestill illegal. Allende took just over 5 per cent of the vote inthe elections, a miserable tally. It was a depressing time forthe Chilean left.

Yet Allende was convinced of the need for an alliancewith the communists. As he told his later private secretary in1950: ‘The Communist Party is the party of the workingclass. The Communist Party is the party of the Soviet Union,the first socialist state in the world. And whoever wants tomake a socialist government without the communists is nota Marxist. And I am a Marxist.’ This conviction, alongsidethe Communists’ conviction that an institutional path tosocialism in Chile was possible formed the basis of the longalliance between the two, which led to the victory of thePopular Unity in 1970.

This alliance and its policies laid the basis for thereunification of the Socialist Party and the legalisation of theCommunist Party by the end of the 1950s in the midst of yetanother economic crisis and social unrest provoked byneoliberal economists. In 1958, just six years after his initialpoor showing Allende narrowly missed winningPresidential elections held under new more democraticrules, and he only lost the 1964 elections thanks to thecombination of US interference and the appearance of asocial-democratic alternative in the shape of the ChristianDemocrat party. Yet the Christian Democrats werecompletely unable to resolve Chile’s structural problems.Economic chaos, social unrest and repression occurred atthe same time as political spaces were opened anddisappointment took deep root.

By 1969 no other political grouping had a programme ascoherent or as rational as that of the Popular Unity. Thebasic argument was that Chile’s problems had no solution

under capitalism. The only way out was to nationalise thecountry’s mineral wealth, invest heavily in education andhealthcare, to develop the nation’s human capital as Allendecalled it, and to carry out a democratic transformation ofChile’s domestic and international politics. It was aconvincing combination of ideology and practicalmeasures. This was, the left argued, the only way to lay thebasis for human and economic development while carving a sovereign future for the people of Chile.

The meaning of this programme was hammered hometime and again by Allende, by the leaders and members ofthe two main left-wing parties, and the CUT trade unioncongress. Allende used to repeat that he did not seek votesbut consciences. He wanted people to make a consciousdecision to participate in their own liberation. By 1969,Allende and the Chilean left had convinced a majority ofChileans of the need for measures such as thenationalisation of copper. In the 1970 elections nearly 65 per cent of the electorate voted for the transition tosocialism of the Popular Unity or the ‘communitariansocialism’ of the Christian Democrats.

The choice of institutional methods to implement thistransformation required the reform of Chile’s institutionsand a legal system appropriate for the transition towardssocialism. Under Chile’s 1925 constitution staggeredelections, and the division of legislative powers between thePresident and the Congress gave each an effective veto overthe other. The result was often paralysis. Subsequentreforms served to strengthen the presidency, for examplegiving him the ability to call referendums, but withoutactually resolving the impasse because Congress was stillable to control both the timing and the content of any suchreferendum.

To get around this institutional straitjacket the PopularUnity proposed a new constitution to provide the legal


LENDE

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40 years on



framework for the democratisation of society. They proposed a new unicameral parliament, the People’sAssembly, which would then appoint an independentSupreme Tribunal which would be free to organise thejudiciary’s internal powers. The new judiciary was tofunction in the interests of the majority, in the same waythat the old one had functioned in the interests of theminority. Other measures included a more collective visionof justice by stating that ‘a new conception of the role of themagistrature will replace the present one, which isindividualistic and bourgeois.’ Two legal measures, points38 and 39 of the Popular Unity’s famous ‘40 measures’ wereconcerned with legal issues, envisioning putting nuisancecrime under the legal supervision of local neighbourhoodassociations, and the creation of legal consultancies in poorneighbourhoods.

Unfortunately the Popular Unity government was unableto implement most of these measures, since it did not have amajority in congress and new elections for congress did nottake place until March 1973. Therefore the Popular Unitywas unable to reform the institutions of the State to replacethe opposition activists who were often ensconced at toplevels. In the judiciary this was reflected in the inability tohave terrorism and sedition effectively punished.

In 1970 Allende had pushed for the new constitution tobe linked to the nationalisation of copper in a referendumthat would take place in mid 1971. The benefit of thiswould be to link the government’s two most importantmeasures at a time of widespread optimism, and while theopposition was in disarray. Furthermore, it would enablethe Popular Unity to campaign simultaneously for themunicipal elections programmed for April 1971 and thereferendum. However, the leaders of the Popular Unityparties feared losing the referendum vote. They fearedprematurely uniting the opposition and the potential effect

of not getting more than 50 per cent in the municipalelections, something that had never happened before. Ever the democrat, Allende refused to force the issue. The measures were separated. Congress passed thenationalisation of copper unanimously in December, and inApril the Popular Unity won 51 per cent of the vote in themunicipal elections. It was a huge opportunity lost and itforced Allende to rely on Presidential decree and thegoodwill of the Christian Democrats to have his measurespassed in Congress. When the Christian Democratsdefinitively turned against his government towards the endof 1972 the Popular Unity’s chances of success narrowedsharply.

The Popular Unity did not survive to enact its mostfundamental reforms, with one exception. Thenationalisation of copper, although partially revoked byPinochet, still remains the basis of the Chilean economytoday. Indeed Chile’s economic ‘success’ since 1990 islargely based on the income from this one mineral. What could have been achieved had it not been partiallyprivatised can only be imagined. Yet as other countries haveshown, State ownership of copper alone would not haveresolved Chile’s problems, nor made Chilean society moredemocratic. The only way to do this was through atransition towards socialism, a fact that remains as truetoday as it did in 1970. This year Chileans go to the pollsonce more, with a fundamental cause being thedemocratisation of the political system and constitutionalchange. Allende’s legacy lies here, in what has beenachieved, and in what remains to be won.

Victor Figueroa Clark teaches history at the London Schoolof Economics and is the author of Salvador Allende:Revolutionary Democrat, (Pluto Press), which is released on20th August 2013.

11th September 1973:Salvador Allende,(pictured left, in steelhelmet) under attack atthe President’s palace.Later that day after afamous farewell speechon Chilean radio, he was dead.

>>>



The International Association of DemocraticLawyers (IADL), a non-governmentalorganisation having consultative status with theUnited Nations Economic and Social Council(ECOSOC), is dedicated to international law,particularly the peaceful resolution of disputesas set forth in the UN Charter and basic humanrights instruments.

IADL has issued two comprehensiveposition statements regarding the continuingcrisis in Syria. In March 2012, IADL called foran immediate cease fire to allow for peacefulresolution of the conflict consistent with theUN Charter. At that time IADL said: ‘TheIADL condemns in the strongest possible termsthese threats to international peace and securitywhich are prohibited by the UN Charter andthe doctrine of jus cogens.’

In December 2012, IADL stated itscategorical opposition to any foreignintervention in Syria, including economic,political, and military interference in theinternal affairs of the Syrian people. IADLfurther called for an immediate end to violenceby all sides to the conflict, and a peacefulresolution of the dispute, in accordance with theUN Charter, as well as accountability for warcrimes.

Since December 2012, the situation in Syriahas further deteriorated. IADL continues toaffirm its prior statements and positions.However, because the military conflict hasproceeded unabated, resulting in many civiliandeaths, and as the Syrian people have suffereduntold numbers of deaths, dislocations andhorrific suffering, a further elaboration isrequired.

IADL believes that the conflict threatens todestabilise the entire region resulting in a threatto international peace and stability. Thisrequires the UN Security Council to take stepsto end the threat to peace. Instead of takingsteps to restore peace, many States haveencouraged escalation of the violence byfunnelling arms to groups of ‘rebels’ some ofwhich are irregular forces from outside Syria.Many countries have been threatening tointervene militarily. Israel has engaged inbombings in Damascus and other places. TheEuropean Union has now followed the demandof the United States to end the military embargoand to allow member States to directly providemilitary assistance to certain rebel groups.

Under Article 2(4) of the UN Charter, it isillegal for any State to threaten to use militaryforce against a sovereign State, or to engage in a

war of aggression against another State. Article2 (7) also prohibits member States frominterfering in the internal affairs of anotherState. These provisions of the Charter weremore specifically articulated in 1970 in GeneralAssembly Resolution 2526 entitled,‘Declaration on Principles of International LawConcerning Friendly Relations and Co-operation among States in Accordance with theCharter of the United Nations’ and in 1974 inResolution 3314 defining aggression.Resolution 2526 prohibits States from armingone side of an internal dispute for the purposeof interfering with the right of the people of theState to self-determination. Resolution 2526specifically requires States to refrain fromorganising or encouraging the organisation ofirregular forces or armed bands, includingmercenaries, for incursion into the territory ofanother State. The Resolution further requiresStates to refrain from organising, instigating,assisting or participating in acts of civil strife orterrorist acts in another State, or acquiescing inorganised activities within its territory directedtoward the commission of such acts, whenthose acts involve a threat or use of force. Theseprovisions are reiterated in General AssemblyResolution 3314 which reiterates the duty of allStates to refrain from acts of aggression, andspecifically defines these same acts as acts ofaggression.

Therefore, the actions of the United States,the European Union, and any other Stateswhich have and/or are now planning to providearms to various factions in the Syrianopposition, or which are considering the use ofmilitary force would be engaging in illegalactions in violation of the Charter as spelled outin General Assembly Resolutions 2526 and3314. Such illegal actions will make those Statesaccomplices to war crimes which will inevitablyoccur as these actions will result in moretargeting of civilians.

IADL opposes any foreign militaryintervention in Syria. IADL opposes all actionswhich violate the UN Charter and GeneralAssembly Resolution 2526. IADL demandsthat all sides enter into a durable cease fire andbegin negotiations for a peaceful resolution ofthe conflict without preconditions, and seekpermanent peace and reconciliation.

International Association of DemocraticLawyers is a Non-Governmental Organizationwith consultative status to ECOSOC andUNESCO. www.iadllaw.org

Statement from the International Associationof Democratic Lawyers

‘We oppose military intervention in Syria anddemand negotiations for a peaceful resolutionwithout preconditions.’

SYRIA



Europeanconstitutions,

laws and austerity

The crisis in the eurozonegoes on as Europe’sleaders continue to peddle‘austerity’ measures –but, as Jeremy Smithargues – these policies are undemocratic and, infact, unnecessary

SL64_pp18-21_europe_print 13/06/2013 22:44


It’s been a bad year for austerity in Europe. Especially badfor those who have been hit most directly – with Eurozoneunemployment at a record 12 per cent level. But bad toofor the reputation of the political and academic class whohave preached to us the virtues of ‘expansionary fiscalcontraction’, i.e. the thesis that public spending cuts(euphemistically called ‘consolidation’) lead directly, andfairly rapidly, to economic growth. Reality has proved theabsolute opposite.

Although not the primary tool of the ‘austerians’, weare also witnessing a process in which constitutional law isbeing conscripted in Europe as an instrument for theenforcement and ideological underpinning of austerity,and of neoliberal values more generally. In a nutshell, theaim is to constitutionally ‘hardwire’ Hayekian policies,and outlaw Keynesian and other progressive economic

policies. In other words, to take economic policy optionsout of reach of democratic decision-making.

A year ago, I wrote an article in Socialist Lawyerentitled ‘Greece: towards a creditors’ constitution?’ InFebruary 2012, the Eurogroup of Finance Ministers hadreferred to the intention to introduce in the Greek legalframework:

‘a provision ensuring that priority is granted to debtservicing payments. This provision will be introduced inthe Greek constitution as soon as possible.’

Fortunately, as I noted, the Greeks have a constitutionthat is quite complicated and time-consuming to change,and ‘as soon as possible’ has not yet arrived.

Alas, this is not true everywhere. In 2011 the SpanishPSOE government had already pushed through a rushedchange to their progressive post-Franco 1978

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constitution, introducing a new Article135 which gives ‘absolute priority’ to the rightsof creditors. This was done at a moment ofmaximum political panic and externalpressure, and with full backing from currentPrime Minister Rajoy’s right-wing PopularParty.

Compare Articles 35 and 135 of theconstitution. Article 35 still proclaims:

‘All Spaniards have the duty to work andthe right to work, …to advancement throughwork, and to a sufficient remuneration for thesatisfaction of their needs and those of theirfamilies…’

This rings a little hollow withunemployment at 27 per cent, and youthunemployment over 60 per cent. Thisprovision can safely be ignored, it seems, bynational and European policy-makers.

And now here’s the new Article 135:1. All public administrations will conform tothe principle of budgetary stability. 2. The State and the autonomous communitiesmay not incur a structural deficit that exceedsthe limits established by the European Unionfor their member states…3. The State and the regions must be authorisedby law in order to issue Public Debt bonds or tocontract loans. Loans to meet payment on theinterest and capital of the State’s Public Debtshall always be deemed to be included inbudget expenditure and their payment shallhave absolute priority. These appropriationsmay not be subject to amendment ormodification as long as they conform to theterms of issue.” (My emphasis).

This is extraordinary stuff for aconstitution. It refers not only to interestpayments, however usurious, but also tocapital repayments, i.e. no roll-overs. Itremoves any negotiating flexibility from anysuccessor government, no matter how terriblethe terms of loans that were agreed by orimposed on earlier governments.

‘Framing’ the crisis The constitutional embedding of ‘absolutepriority’ for creditors is thankfully still rare.However it will probably not be so for long.

Since 2010, we have had a concertedcampaign in the Eurozone and the UK topersuade us all that the key problem in theeconomic crisis is public sector debt. In mostcountries, it is not. Take the UK. Since 2008public sector gross debt has risen from 53 percent to around 90 per cent of GDP. But privatesector debt had grown to around 450 per centof GDP by 2008, and remains close to thislevel.

While Greece has had high public debt sinceit joined the Euro, this is not true of Spain,Portugal or Ireland. Spain and Ireland hadprivate construction bubbles, with absurdloans from domestic and foreign banks, whichled to losses being dumped on taxpayers.

It has suited the economic and politicalideology of the European Commission andCentral Bank to target public debt, to avoidrecognising that the true Europe-wide problemis a private sector financial crisis, heavilyaffecting banks and therefore also governmentsin Germany, France and northern countrieswho had made huge bad loans.

Debt-brake Treaties and lawsThe other main legal tool used to enforce or

reinforce European austerity is the ‘debt-brake’provision. This is being imposed at bothEuropean and national levels.

The broad principle goes back to theMaastricht Treaty of 1992 which (Article 104cand Protocol) laid down in law the arbitrarily-defined budgetary discipline compliancecriteria, namely:lThe annual budget deficit to GDP ratio mustnot exceed 3 per cent;lThe government debt to GDP ratio must notexceed 60 per cent.

These need to be seen together with theEuropean Central Bank mandate that makesprice stability – i.e. inflation – its primary legalobjective, to which all else is made subservient.This is unlike the US Central Bank, the Fed,which by law has to balance inflation andemployment considerations.

From 2010, having reframed the crisis asone of public finances, it was decided tostrengthen the European-level framework forenforcing the Maastricht criteria. It is a niceirony that in the Euro-decade to 2010, twomajor ‘miscreant’ governments were Franceand Germany, both of which had deficits anddebt/GDP ratios that well exceeded thosepermitted, and neither of which was‘punished’.

Compare the Germany and Spain debt toGDP percentage figures from Eurostat in thegraphic above. So Germany, with its ownHartz IV ‘structural reforms’ from 2003, to2005 exceeded the Maastricht level for nineout of ten years, while Spain was within thelimit every year till 2010.

At European level, the opaquely-named‘Treaty on Stability, Coordinationand Governance in the Economicand Monetary Union’ was wheeledout by Chancellor Merkel andPresident Sarkozy to address thepublic debt ‘problem’. This Treaty,in force since January 2013, has theexpressed aim in Article 1:

‘to foster budgetarydiscipline through a fiscalcompact, to strengthen thecoordination of theireconomic policies and toimprove the governanceof the euro area, therebysupporting theachievement of the

European Union’s objectives for sustainablegrowth, employment, competitiveness andsocial cohesion.’

So far, alas, the only ‘achievement’ isnegative growth, mass unemployment anddeeper social division.

Under Article 3(1), the signatory Statescommit to achieve an annual governmentbudget which is balanced or in surplus, with aleeway of 0.5 per cent of GDP. The full set ofdetailed rules is laid down in other complexdocuments to which it cross-refers, making thisa highly non-transparent Treaty.

In fact, the main legal-political purpose isset out in Article 3(2):

‘The rules set out in paragraph 1 shall takeeffect in the national law of the ContractingParties at the latest one year after the entry intoforce of this Treaty through provisions ofbinding force and permanent character,preferably constitutional, or otherwiseguaranteed to be fully respected and adheredto throughout the national budgetaryprocesses.’ (Emphasis added).

In other words, Chancellor Merkel andPresident Sarkozy felt that just having

European level legislation was notsufficient – the Maastricht criteria mustbe legally enforced also at nationallevel.

So far, this strategy is working, atleast up to a point. In 2009,

Germany had already addedthe ‘debt-brake rule’ into its

basic law. From 2016onwards, the federal

government isforbidden, save inemergencies, to run astructural deficit ofmore than 0.35 percent of GDP, althoughit is allowed to ‘take

into account,symmetrically in times of

upswing and downswing,

Supporting the miners’march against austerity inLeon, northern Spain in 2012. Pi

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the authors say that national constitutionsborn out of the defeat of fascism are no longerfit for purpose and ‘need to change’. In theirown words:

‘The constitutions and political settlementsin the southern periphery, put in place in theaftermath of the fall of fascism, have anumber of features which appear to beunsuited to further integration in the region.’

‘At the start of the crisis, it was generallyassumed that the national legacy problemswere economic in nature. But, as the crisis hasevolved, it has become apparent that there aredeep seated political problems in theperiphery, which, in our view, need to changeif EMU is going to function properly in thelong run.’

‘The political systems in the peripherywere established in the aftermath ofdictatorship, and were defined by thatexperience. Constitutions tend to show astrong socialist influence, reflecting thepolitical strength that left wing parties gainedafter the defeat of fascism. Political systemsaround the periphery typically display severalof the following features: weak executives;weak central states relative to regions;constitutional protection of labour rights;consensus building systems which fosterpolitical clientalism; and the right to protestif unwelcome changes are made to thepolitical status quo. The shortcomings of thispolitical legacy have been revealed by thecrisis.’

The suggestion is that it is time to get rid ofthese ‘shortcomings’ – including labour rightsand the right to protest. It is not exactly arallying cry for democracy.

Jeremy Smith is a barrister and Director ofPolicy Research in Macroeconomics (PRIME)

the effects of market developments that deviatefrom normal conditions.’

In December 2012, Italy also amended itsconstitution to impose a ‘balanced budget’requirement, in particular Article 81, thoughcouched in language that leaves a wide degreeof discretion:

‘The State shall balance revenue andexpenditure in its budget, taking account of theadverse and favourable phases of the economiccycle. No recourse shall be made to borrowingexcept for the purpose of taking account of theeffects of the economic cycle.’

In 2011 the Berlusconi government hadbeen effectively ‘ordered’ to take a series ofeconomic steps set out in a letter of 5th Augustfrom the then Governor and Deputy Governorof the European Central Bank, Messrs Trichetand Draghi. These two bankers also added, ina shocking usurpation of role:

‘In view of the severity of the currentfinancial market situation, we regard as crucialthat all actions listed [above] be taken as soonas possible with decree-laws, followed byParliamentary ratification by end September2011. A constitutional reform tightening fiscalrules would also be appropriate.’

France, by contrast, has so far decided to actby legislation rather than by changing itsconstitution.

EU legislationThe Treaty in reality adds little by way ofsubstantive content to what is now containedin EU legislation, notably the so-called ‘sixpack’, five regulations and one directive, alldated November 2011, with tough-soundingtitles such as:lRegulation on enforcement measures tocorrect excessive macroeconomic imbalancesin the euro area;

lRegulation on the strengthening of thesurveillance of budgetary positions and thesurveillance and coordination of economicpolicies.

In short, the EU now has ample legislativepowers to enforce the Maastricht criteriaupon recalcitrant Member States, withoutany need for the new Treaty.

ConclusionsThe European Union, for all its weaknesses,has been a progressive force in many fields,for example, in respect of gender equality,social rights, and environmental protection.These gains are all at risk.

It is the logic of a single currency to requiremember States to abide by a common set ofrules in the common interest. The problem,however, is that within the Eurozoneframework, there is almost no room fordemocracy.

The set of rules chosen is a narrow andideologically partisan one, aimed atenforcing in perpetuity a highly limited rolefor the public sector, and at promotingHayekian free-market policies overKeynesian or other progressive policies tocombat unemployment and get economiesworking for the majority.

We are seeing the start of a new anddangerous campaign by the right – to removechoice in economic policy from thedemocratic domain.

Postscript:On 28th May 2013, just after my article wascompleted, JP Morgan’s European EconomicResearch team published a report on ‘TheEuro Area Adjustment’.

It bears out my thesis more fully andexplicitly than I could have imagined. In sum,

Germany

Spain

% debt to GDP

59.1

55.652.6

48.8 46.343.2

39.736.3

40.2

53.9

61.5

60.764.4 66.2

68.565.2 66.8

74.5

82.4

68

2001 2002 2003 2004 2005 2006 2007 2008 2009 2010



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The State has a responsibility to enshrine theprinciples of justice in legislation as well asestablishing and maintaining the means of its implementation.

This Government and its predecessors haveincreasingly failed in both these respects.They speak gobbledygook about humanrights. The two most central figures, theJustice Minister and the Home Secretary,have recently displayed an appalling lack ofunderstanding in their wild hostility to theEuropean Convention on Human Rights.The cuts on all fronts not only withdrawbenefits but also emasculate the mostvulnerable. Whole areas are now without any legal aid or only a skeleton resource.

None of this is primarily about lawyers,although they are affected, it is about a basicprovision: justice, the very substance of whatis left of our democracy. No fundamentalrights are worth the paper they are writtenupon unless they can be enforced especiallyagainst overweening and corruptiveauthorities.

All this is known and has beenforeshadowed over the last decade. Theproclaimed agenda is the privatisation and

by Michael Mansfield QC

PUBLICLYFUNDE

THEWRONTHEW

Protesting outsideParliament todefend legal aidon 22nd May.

SL64_pp22-27_legal-aid_print 13/06/2013 22:44


DEDJUSTICE

RITINGISWALL

fragmentation of all public services. The thinly veiled rationalisation now is the crippling debt brought about by afreewheeling private finance sector. There are alternatives which George Osbornevehemently opposes such as a financialtransaction tax.

Now is the time to alert and collectivise thepublic conscience to take a stand. It cannot beachieved by pockets of protest and oppositionwithin the legal profession alone. Negotiatingfor the crumbs that might fall from the table isalso not an option. There has been, with smallexceptions, an intransigence and almostdismissive contempt by Government towardsthe plight of the citizen.

The writing is on the wall for all to see andhas to be erased by the determination andsingular purpose of civic society. There arepresently many networks available tofacilitate this, Avaaz and 38 Degrees are buttwo fine examples which serve constituenciesof millions. They have already brought aboutseismic shifts in opinion and policy. TheCoalition has a limited shelf life and itsmisplaced objectives can be removed byconcerted effort.Michael Mansfield QC is President of The Haldane Society



The Government’s attack on LegalAid

If you stand by the Royal Courts of Justice and listenhard you might be able to hear the rumble of a convoy oflorries heading for the centre of legal London. Theselorries, wearing the cheerful green Eddie Stobart livery,are the Government’s new vision for the delivery ofpublicly funded legal services.

Stobart Barristers already provide legal services toprivate paying individuals and companies and claim to beable to save customers 50 per cent compared to ‘doingthings the old way’ by cutting out solicitors. But it doesn’tstop there: Stobart has also been in discussions with theMinistry of Justice about signing massive contracts toprovide publicly-funded criminal defence representationfrom the police station to the Crown Court. And they arenot the only ones; G4S and Serco are also rumoured to beinterested in bidding for these contracts.

The idea behind this is ‘Price Competitive Tendering(PCT)’. The Government wants providers of legalservices to tender for contracts to provide legalrepresentation for those accused of criminal offences. In doing so it hopes to reduce the national numbers ofcriminal legal aid providers from 1,600 to around 400.The contracts will be awarded to those who are able todeliver legal services to the highest number or customersat the lowest cost per unit. As Stobart himself says, ‘wewouldn’t use 10 trucks to deliver one product.’ But what

is that ‘product’ in the context of our justice system?The ‘market-based approach’ to the provision of public

services is sadly not new, even within the legal sector, butPCT, if implemented, will effectively mean the end of thehigh street legal aid solicitor, the specialist human rightslawyer and quite possibly the independent criminal bar.

You only have to think back 20 years to some of thehistoric miscarriages of justice that have been overturned,in large part assisted by the commitment and forensicability of specialist legal aid lawyers such as Gareth Peirce,Imran Khan, Louise Christian and numerous others.Without them we would not know the truth about theGuildford 4, the Birmingham 6, or the Cardiff 3. What isnow clear is the Government does not want these kind oflawyers operating within our system and put quite simply,wants to drive them out of business.

As anyone who works with the criminal justice systemwill tell you, clients are not customers, but oftenindividuals with complex issues, needs and legalchallenges. It is the job of a skilled representative to exploreevidence, challenge facts and question the legitimacy oftheir client’s accusation by the State.

This is particularly true of those working with youngpeople, those with mental health problems. There are alsothose cases where the State engages in the politicalcriminalisation of those who belong to particularcommunities, ideologies or circumstance throughterrorism legislation, public order acts and anti-socialbehaviour legislation.

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Aid must be stopped

The majority of criminal cases can not be reduced to alow cost ‘unit’ that can be simply transported from thestart of the process to the end. Justice is not simply aquestion of logistics.

The Government also proposes to remove the right tochoose the solicitor who will represent you in a criminaltrial. The provision of a duty solicitor scheme at the policestation has been a valuable part of the legal advicelandscape for many years but the removal of the right tochoose who represents you beyond that first stage willeffectively create a two-tier justice system with those whocan pay to choose lawyers based on merit rather thancontractual obligations.

The United States has such a system with an under-resourced public defender service for the majority and highprofile and high-cost attorneys for the rich. The Britishjustice system stands alone in its provision of the highestquality lawyers to everyone, irrespective of their means.But not for much longer.

The provision of quality legal services based on theability to pay is not new. Legal aid has been means tested inthe Magistrates’ Court since 2006 and most people earninga full-time wage, no matter how modest, are denied publicfunding. Those denied funding are simply forced torepresent themselves.

But there are already warning bells sounding aboutforcing individuals to appear in person. In April 2013 ajudge in Durham Crown Court refused to sentence a manwho admitted stealing more than £5,000 from an elderlywoman. The man had pleaded guilty before magistratesbut later told the writer of his pre-sentence report that hewas lawfully entitled to the money. The man said he hadspoken to the duty solicitor but was representing himself atCrown Court because he had been declined legal aid. ‘I can’t afford a barrister,’ he said.

While the Government may think the proposals willsave money, the Judiciary have warned that the increase inlitigants in person appearing before the courtsunrepresented will prove more, not less costly to the justicesystem. In a recent judgment of the Court of Appeal, Sir Alan Ward stated ‘It may be saving the Legal ServicesCommission which no longer offers legal aid for this kindof litigation but saving expenditure in one publicdepartment in this instance simply increases it in thecourts.’ The family and immigration courts already knowtoo well the increased burden that litigants in person puton the system and the cost is not just economic, butemotional.

But PCT is just one part of the most radical shake-up oflegal aid since its inception in 1949 as part of the post-warcommitment to the welfare state.

The first wave of reforms already implemented by theLegal Aid, Sentencing and Punishment of Offenders Act inApril 2013 included the exclusion of swathes of areas ofadvice beyond the scope of funding such as welfarebenefits, immigration, employment, divorce and childresidence, and school exclusion appeals. There is now aproposed further reduction of fees in areas of work such asfamily and civil legal aid of around 30 per cent. The neteffect of these waves of cuts is that post-2015 there areunlikely to be any specialist civil legal aid lawyers left at all.

It is civil legal aid that has supported bereaved familiesthrough inquests into the deaths of Jean Charles deMenezes, Ian Tomlinson and Mark Duggan, and which willhopefully support many families demanding answers fromthe 2014 Hillsborough inquests. It is civil legal aid that givesthese families a route to accountability by funding claimsunder the Human Rights Act against the police, prisons andthe armed forces for breaches of their obligations to protectthe lives of their loved ones. The proposals also put underthreat the funding for making an application for judicialreview, one of the key ways an individual can challengedecisions made by public authorities.

s

Part of the500 -stronglobby ofParliamentin May/

Geoffrey Robertson QCaddresses the protestoutside the Ministry ofJustice on 4th June.



The impact of the cuts on vulnerable individualscannot be underestimated. The denial of access to legaladvice comes as a sucker punch following the body blow of the slashing and restructuring of welfare benefits. TheInstitute of Race Relations has stated that they will severelyimpact on BME clients and therefore increase socialexclusion. The housing charity Shelter has been forced toshut over a third of its advice centres across the country,and both the British Red Cross and the Citizens’ AdviceBureaux have said that the cuts have left them having toreduce services and make redundancies.

In an even crueller twist, the Government proposes tolimit access to civil legal aid to those who have beenresident in the UK for more than 12 months. The measurewill affect the ability of recent migrants or those withvulnerable status such as trafficking victims, to challengetheir treatment in the criminal or civil courts,compounding the two-tier system that will inevitably becreated.

In a recent speech, the President of the Supreme Court,Lord Neuberger, warned that the biggest victim of theGovernment’s proposals could be the rule of law itself. He said: ‘in order for a State to remain inclusive it must notjust express a commitment to the rule of law: it mustprovide effective mechanisms through which its citizenshave genuine access to the courts.’ He added: ‘If allmembers of society cannot gain genuine access to thecourts, then the possibility exists for society to becomeexploitative, as some elements take advantage of the factthat they can ignore the law with relative impunity.’

Sadly it appears that this Government’s commitment tothe privatisation of public services knows no bounds. With the majority of court custody and enforcementservices contracted out to the likes of Serco, 14 privateprisons run by G4S, and proposals to contract theprovision of the Probation Service to a similar company,the question is whether public interest will have any placein a court of law? Instead, the courtroom will be full ofcorporate representatives, each seeking to reduceoverheads such as justice and compassion in the name ofincreasing profit margins.

And what about a conflict of interests? We could soonsee the same company that represents you at court,detaining you, transporting you to court, then monitoringyou on electronic tag or putting you in one of theircorporate run prisons. What economic incentive does thatcompany have in providing legal representation that strivesto test the prosecution case and acquit the innocent? The guilty are worth more in revenue.

The legal and justice sector is rightly up in arms: Early Day Motions and Petitions are swirling through 38 Degrees and Avaaz. The Northern Circuit of the Barheld an 800-strong emergency meeting during court hoursto show the strength of their opposition and there aredemonstrations and mass meetings being arranged all overthe country under the campaigns Justice for Sale, Save UKJustice and Save Legal Aid.

What is important to recognise is that this fight is notjust about remuneration for lawyers, but for the very corevalues of our justice system. Lawyers must unite with courtworkers, probation officers, youth justice workers, law-centres, trade-unions, NGOs and every other groupcommitted to the rule of law.

If we don’t act now and stop this juggernaut fromsmashing into our legal system we will never be able torecover access to justice from the wreckage of the welfarestate. We must all demand an answer to the question: atwhat price justice?

Anna Morris is a barrister at Garden Court Chambers andVice Chair of The Haldane Society. This article firstappeared on the Ceasefirewebsite and is reprinted herewith their kind permission and that of the author.

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In the future our police

‘The degree of civilisation in a society is revealed by theway it treats its prisoners’ is a quote for which historyclaims many authors. Dostoyevsky, Churchill and PopeJohn Paul II have each been paired with it perhaps sayingsomething of the power contained in the idea. Regardless,it is not a sentiment shared by our current Lord Chancellor– the first non-lawyer in the post since 1672 – ChrisGrayling MP who on 8th April 2013 announced a newpackage of cuts to legal aid.

Grayling does not believe prisoners should have accessto free legal advice concerning matters such as treatment,sentencing, disciplinary action and parole board reviews.Instead, he tells us, the prisoner can raise a complaintthrough an internal procedure. Never mind that manyprisoners will be burdened with much of the health,educational and social problems associated withcriminality which will make it quite impossible for them toput their own case effectively. How prisoners are treated isfundamental to their prison existence and to restrict theirability to ensure that treatment is lawful begins to look likea form of punishment in itself.

In criminal legal aid, the consultation forwards plansfor a model of price competitive tendering. Bids will beinvited below a fixed ceiling for batches of work aroundthe country. It is a system in which only warehouse lawfirms will exist and high street firms will either die or beabsorbed by large corporations intent on delivering legalservices cheaply for maximum profit. The future will be

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one in which suspects are apprehended by G4Sinvestigators, transported by G4S security, detained byG4S officers and imprisoned in G4S jails – at each stagerepresented by G4S lawyers.

With price competition will come the removal of theright to the solicitor of your choice. Representation will beallocated by rota and it will be made difficult to changesolicitor should you wish to for any reason. The idea thatquality can survive the casual vandalism of these proposalsis absurd. The model of turbo price competition used insome US states tells us that.

Fees in criminal legal aid is a favourite target of justicesecretaries and Grayling is no exception. Yet, there hasbeen no increase in barristers’ fees since the 1990s. While ahandful of criminal QCs do earn significant sums the restof us do not. It may be that such fees should be discussedbut not, as the Justice Secretary does, in a bid to underminethe entire system. As a trainee barrister I have a guaranteedincome of £12,000 during my first year. We do not ask forsympathy, merely accuracy.

On the civil side the planned fee reductions mean manylawyers’ practices will simply no longer be viable. So thosewho specialise in housing, homelessness, actions againstthe police and judicial review – all crucial mechanisms forensuring State accountability – will disappear. Theirsuccessors will be the warehouse G4S model or non-specialist charitable organisations staffed bywell-intentioned but resource-poor lawyers. There will beno equality of arms in the courtroom.

As a result of previous reforms, from 1st April 2013 araft of areas no longer attract free legal advice.

Employment cases, non-asylum immigration cases,consumer rights and welfare benefits were all removedfrom scope. In the case of the latter it is estimated that 40 per cent of challenges before the benefits tribunalsucceed. Money would be saved by the Department forWork and Pensions making the correct decisions in the firstplace. There has been no opportunity to yet assess theimpact of these changes but that has not deterred Graylingfrom unleashing a new round of cuts.

There is to be a residency test for those claiming civillegal aid. Applicants must be in the country lawfully to beable to apply and for those who are, an additionalrequirement of 12 months’ residence is imposed. This is thesort of divisive approach to immigration we have come toexpect from the Conservative side of the coalition.Children of people here unlawfully will be left without theprotection that would otherwise see them housed andlooked after. Foreign students and people here on atemporary visa will be unable to challenge Statewrongdoing.

If money is all that Chris Grayling understands then heshould understand this: these proposals will cost more interms of the miscarriages of justice, social harm, anddisruption to the court service which will result, than the£200 million he seeks to save.

Russell Fraser is a pupil barrister and joint secretary of theHaldane Society of Socialist Lawyers. He has written this ina personal capacity. This article first appeared in the NewStatesman and is reprinted here with their kind permissionand that of the author.


ce, lawyers and jails will be run by G4S

Scary-lookingfigures at theMinistry ofJustice....



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ukAlfie Meadowspictured at a ‘Justicefor Alfie Meadows’protest outsideKingston CrownCourt in London.

Self-defence:the trial of AlfieMeadows

The shocking image of a shaved, scarred headbelonging to the student protester AlfieMeadows – who suffered life threatening headinjuries from a baton assault during theprotest against the Government plans to raisetuition fees from £3,000 to £9,000 on 9thDecember 2010 – was widely reproduced inboth the print and electronic media.

In the Autumn of 2010, the newly electedcoalition Government announced that theywould be giving universities the ability to raisetuition fees from the previous £3,000 cap to£9,000. The rise in tuition fees would excludemany students from higher education andleave those who attended with crippling debts.The policy was in breach of an election pledgeby the Liberal Democrat partners in thecoalition. This was coupled with anannouncement that the EducationalMaintenance Allowance which supportedstudents from poorer backgrounds in post-16education was to be abolished.

These two cuts provoked widespread angeramong young people already facingunprecedented levels of unemployment,unpaid internships and staggering housingcosts. Government spending cuts wouldimpact disproportionately on the young andtheir life chances. History shows that manyyoung people who were similarly affected inthe 1980s were never able to get their livesback on track.

The widespread anger at the policyprompted a series of demonstrations inNovember and December 2010 whichresulted in a number of arrests, including thehigh profile arrest of Charlie Gilmour, the sonof Pink Floyd guitarist David Gilmour.Students and their supporters, who includedschool age students and academics, as well asother activists, spent cold winter afternoonsand evenings protesting against the cuts. Onone of these demonstrations the police kettledstudents, including school children, at whichAlfie and his 14-year-old sister attended.

The demonstration on 9th December 2010was the fourth and final demonstrationorganised in protest against the rise in tuitionfees and was the best attended. Alfie, who wasa philosophy student at Middlesex University,attended the demonstration with friends.

The protest began on the VictoriaEmbankment and proceeded to ParliamentSquare where the students were kettled. CCTV

Margaret Gordon on thecase that sprung from thestudent anger of 2010 andthe police response to it

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footage from 9th December 2010 shows linesof armoured police officers attacking protesterswith batons. A group of police horses alsocharged at the protesters in Parliament Square.The Hilliard brothers, Christopher andAndrew, faced charges resulting from anincident where a police officer fell from a horse.

The vote was scheduled to take placeduring the evening of 9th December 2010 andprotesters including Alfie Meadows and ZakKing proceeded to Whitehall to protestoutside Parliament. Large numbers of policeattended to reinforce the line and altercationstook place between police and protesters.

At 6.00pm the vote was called andprotesters were kettled in Whitehall. It washere that Alfie was assaulted.

Following his assault, Alfie submitted acomplaint to the Independent PoliceComplaints Commission (IPCC) and made adetailed statement describing thecircumstances coming up to his assault.

At the same time as Alfie submitted hisstatement, police officers from operationMalone began to investigate alleged acts ofviolent disorder arising out of this protest.

As his solicitors, we were shocked when hewas invited to attend the police station forinterview.

Alfie was charged with violent disorderand appeared at City of WestminsterMagistrates’ Court. His case was committedfor trial and was joined with the cases of sixothers.

The first trial was listed at KingstonCrown Court together with Zak King and fiveothers.

The prosecution focused on the allegedactions of protesters pushing harris fencingtowards the police. The prosecution showedfootage showing the alleged attack.

The biggest practical challenge in relationto Alfie’s defence was viewing and collatingfootage. Defence footage was put togethershowing a different narrative wherebypeaceful protesters linked arms to protectthemselves against baton assaults from thepolice; faced a charge from police horses; andwere kettled in the cold and dark onWestminster Bridge.

The jury presented a note saying that theyaccepted that the defendants were acting inself defence but they did not know if it wasproportionate.

Hours were spent poring over and collatingdefence footage and use of force records,incident report books, vehicle logs, bronzelogs, and silver logs were also scrutinised.

Enquiries included searches on the internetand in the media for witnesses to the events.Eventually we were able to identify Jill Austin,a doctor from Dundee who had never metAlfie before.

The jury was hung and for Alfie and Zakbut acquitted the other protesters of violentdisorder.

Commander Johnson, the SilverCommander, gave evidence and was cross-examined by Michael Mansfield QC whosought to put the trial in the context of thepolice actions against the miners andHillsborough.

Jill Austin was able to give evidence abouther experiences of protest. She had attendedwith a first aid kit and had spent the afternoontreating protesters with baton injuries inTrafalgar Square. Her evidence of the effectsof the kettling on Westminster Bridge wasparticularly compelling. She described howthe police officers on the bridge could receiveinformation by radio but were not able to getmessages to their commanders.

The case was transferred from KingstonCrown Court to Woolwich Crown Court,where a second trial ended up being abortedbecause of illness affecting the defence team,the judge and a juror.

On the first day protesters were excludedfrom the trial causing widespread distress.

After a three-week trial, a Woolwich juryfinally acquitted Alfie and Zak King towidespread relief.

It was two years after the charge and twoyears and three months following the protest.The lives of both young men had effectivelybeen on hold for this period and theireducation and careers have been disrupted.Alfie’s good nature and concern for othersmeant that he spent a great deal of timesupporting other protesters facingprosecution including attending their trialsand campaigning on the issue.

Disclosure of the vital parts of theprosecution case including crucial footageand the police logs was only achieved bypersistent applications.

Alfie and Zak were well supported notonly by their families and friends, but by awidespread network of supporters led byDefend the Right to Protest, who attended thetrial and organised demonstrations outsidethe court room. This made the defence a realteam effort.

The trial highlighted the inequality of armsbetween the prosecution and defence underlitigator’s fees. Defence lawyers are paid onthe basis of page counts on prosecutionpapers which did not include the analysis ofCCTV footage that was the basis of Alfie’sdefence. The defence were paid basic fees forthe re-trial. The defence was only possiblewith a large amount of unpaid work put in bythe defence team. The defence was alsoassisted by being able to work with Alfie’scivil team.

Alfie and Zak’s defence would simply notbe possible under the new funding proposalscontained in the Government’s consultationpaper Transforming Legal Aid. Neither ofthem would have had the choice of a specialistlawyer. The specialist firm Kellys Solicitors,who are based in Brighton and acted onbehalf of Zak King, would not have been ableto act in a London based trial and Alfie wouldnot have been able to choose to be representedin his criminal case by the same firm as wasdealing with his civil case. This is furtherreason, if any were needed, to oppose theGovernment’s proposals to radically changelegal aid.

Margaret Gordon is a solicitor at Christian Khansolicitors


‘Their defence wouldsimply not be possibleunder the new fundingproposals for legal aid.Neither of them wouldhave had the choice of aspecialist lawyer.’

SL64_pp28-29_meadows_print 13/06/2013 21:41


In February 2013 representatives from over 40 groups met together to form the Campaignfor Benefit Justice to organise against the mostvicious attack on the welfare state by anyGovernment since its inception in 1947.

All benefit cuts are an attack on the poor.What is often forgotten is that millions of lowpaid workers also claim benefits. The divisionbetween those in and out of work is totallyartificial. Benefit claimants have becomescapegoats for the recession. Blame the shirkersnot the bankers who continue to net millionpound bonuses in the wake of the UK’s loss ofits triple star credit rating cry the Tories. It’s easyto live off £57 a week shouts Ian Duncan Smith.

Immigrants are consistently portrayed asstealing the jobs of deserving strivers withhysteria mounting over the relaxation of benefitrestrictions for Romanians and Bulgarians. The press misrepresented these restrictions asrelating to their right to freedom of movementas EU migrant workers. This has in fact been inexistence since they joined the EuropeanEconomic Area in January 2007. Such racismundoubtedly contributed to UKIP’s high pollingturn out in Eastleigh.

The disabled, already adversely affected bythe introduction of Employment SupportAllowance and ATOS testing, will experienceenormous hardship because of the bedroomtax.

We should not forget the cause of death of asingle homeless man who died while sleepingrough on 23rd February 2013 in Aylesford,Kent being attributed to hypothermia. DavidGauntlett was only 35 and died as a result ofbeing evicted from a derelict railway building inwhich he was sleeping. During March 2013over 5,000 cold related deaths were recordedwith no mention of the fact that many people’sincomes are so low they have to choosebetween paying for food or fuel.

Employment Support Allowance (ESA) Even before the benefit cuts introduced in April2013 we had seen the implementation of ESAwhich came into force from October 2008. The brain child of Yvette Cooper MP under thelast Labour Government it introduced a muchstricter capability to work test in order to claimwhat was previously Incapacity Benefit. TheTories toughened up this test by introducing amuch harsher Capability Assessment Test runby ATOS in November 2011.

All new and repeat ESA claims are subject toATOS assessments after an initial claim over 13 weeks at £71 per week. There are two levelsof payment: those in the support group deemedincapable of work and those in the work relatedcapability group deemed able to carry out somework. The support group receive slightly morebenefit.

In order to claim ESA a person needs toscore 15 points at an ATOS exam. Channel 4provided evidence to support allegations thatATOS examiners, most of whom have amedical qualification but are not doctors, workto a set quota of failure. This was borne out bymany claimants scoring zero on theirassessments, irrespective of the degree ofseverity of their illnesses.

Appeals against ATOS refusals take up to ayear to be heard during which period theclaimant only receives reduced ESA of £71 perweek. Up until March 2013, £60 million had sofar been spent on appeals. Even if a claimant is

successful, they face another re-assessment byATOS 13 weeks after their appeal decision.

Some claimants die before their appealsagainst nil assessments are heard.

April 2013 – month of miseryFrom 15th April 2013 a pilot to cap benefitclaims nationwide was to be rolled out inLondon in the areas of Bromley, Croydon,Enfield and Haringey. This cap will be at a totalper week of £350 for a single person and £500for a couple including Housing Benefit whichbites sharply in London where housing costs arehigher.

The bedroom tax also came into force on 1st April 2013 for tenants in social housing.Housing benefit claimants must pay 14 per centtowards their rent if they over occupy by onebedroom and 25 per cent for more than onebedroom. Up to four children under ten of anysex are expected to share a bedroom as are twochildren over ten of the same sex. A disabledperson is not exempt from the tax if they use asecond bedroom for their carer, even if they livetogether. The question of whether disabledchildren need their own bedrooms is currentlybeing considered in the Administrative Court.

From 1st April 2013, Council Tax Benefitrecipients have to pay 10 per cent towards theirCouncil Tax.

From 1st April 2013, legal aid cuts meanthat there is now no free legal advice availableto interpret the Kafkaesque bureaucracy whichis supposed to deal with these changes.

The pilot Universal Credit (UC) schemes,

which also replaces and includes HousingBenefit and which will be administered by theDepartment for Work and Pensions, are tobegin in the same boroughs as the benefit caps.In addition to implementing the caps,applications for UC have to be made on line,when over 50 per cent of claimants cannot use acomputer because they do not have access toone, or because they do not know how to useone, or because they do not speak English.Claims will be paid monthly into arrears andpaid straight into bank accounts. Backdating isonly for a month and there is no provision forpayment pending appeal.

The effect of the benefit cutsAlready the New Policy Institute has calculatedthat 440,000 families will lose £16.90 a week inthe double whammy of bedroom and counciltax cuts. Tenants are understandably perturbed.The combined effect of all these cuts will lead tohigher rent arrears, County Court possessionorders and come Autumn 2013 a huge rise inevictions. Attempts by local authorities toincrease rents to compensate for this loss ofincome will be a drop in the ocean of the vastincrease in centrally subsidised expenditure topay private landlords to provide temporarynon-secure accommodation for the homeless.

Because of both the high cost of particularlyprivate accommodation in London and therefusal of 90 per cent of private landlords toaccept tenants on benefits we will see thedispersal of the homeless outside London. Local authorities will have little choice but to

Wendy Pettiferargues for a campaignfor benefit justice

Disabled activists andUK Uncut join forces tooppose the Welfare Bill,chaining themselvestogether at OxfordCircus in London.

‘The mostvicious attackon the welfarestate since itsinception’

SL64_pp30-31_benefits-cuts_print 13/06/2013 21:41

perpetrate the social cleansing aim of theGovernment by offering the homelessaccommodation outside the South East, whererents are cheaper.

The stress that will most likely be placed onthe court service can not be understated. Courtsare already hard pressed and potentially face theprivatisation of their support staff. Morelitigants-in-person appear in the courts everyday due to the implementation of legal aid cuts.

Campaign for Benefit JusticeIt is vital that we all campaign together to rollback the most severe attack on those hard wonrights which were delivered to the survivors ofthe Second World War in 1947. We cannot goback to the days of Victorian moralism andnotions of the deserving poor. The cuts attackthe most vulnerable in our society: the sick, thedisabled, the old, migrant workers. We muststand shoulder to shoulder and remember thatthe distinction between ‘striver’ and ‘scrounger’is totally misconceived. Anyone working todaycould be unemployed tomorrow and anyworker today may be claiming benefit top upsto achieve a living wage.

We can campaign on both micro and macrolevels. We must engage those in the trade unionmovement still in work, and take a lead fromthe fierce struggles of groups like DisabledPeople against the Cuts (DPAC). TheGovernment is not confident that they canachieve the implementation of these cutswithout significant social unrest, and we musthold them to account.

Claimants cannot survive on £71 per week.Many have multiple debts and benefitdeductions. Indeed people are dying as a resultof hardship caused by these reforms.

Action should be taken when evictions reallystart to bite in the Autumn. It will be difficult topersuade Councils to refuse to issueproceedings over rent arrears, and often hard toidentify how much of those arrears are causedby benefit cuts. Effective action can be taken toliaise with court staff and duty solicitors toidentify when tenants are being evicted bybailiffs and to mount local protests led byTenants’ Associations at people’s homes. Alandlord’s representative must be present whenbailiffs change locks.

Some legal challenges have alreadysucceeded, for example against the JSAWorkfare schemes. Sadly the Government’sreaction is always to bring in new legislation toget round the legal decisions. We have to beaware that any victory in court is likely to giveonly a breathing space.

One fight is to force the Labour Party backto socialist politics to get it to commit in its2015 Manifesto to repealing the recentpernicious legislation. The Campaign forBenefit Justice is working both nationally andlocally to achieve this aim. Tenants need to bemade aware of just how hard they will be hit inthe months to come and to be given support tojoin together to resist.

Wendy Pettifer is a solicitor at HackneyCommunity Law Centre


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Philip is nearly 60. He is British. He is aHousing Association tenant in Hackneyand has a two bed flat as he was asingle parent. He is single. His rent fromApril 2013 will be £140 per week. Hisadult daughter moved out years ago.She is now a single parent on IncomeSupport and lives out of London. Hehas previously suffered fromdepression and attempted suicide.

He worked as a chauffeur for manyyears until he was made redundant in2010.

He only claimed JSA and fullHousing Benefit when his savings ranout in mid 2012.

He was diagnosed with coloncancer on New Year’s Eve 2012 andwas in Homerton Hospital for ten daysfrom 15th to 25th January 2013 when asection of his colon was cut out andreplaced. Unfortunately his operationwas only partly successful and he isnow diagnosed with level four cancer.He started chemotherapy with verystrong side effects on 26th February2013.

His application for ESA was initiallyrefused. His sympathetic housingofficer was persuaded to continue hishousing benefit on the basis of a nilincome assessment. Philip was withoutany income from 2nd January 2013. He got advice from the Law Centre andafter numerous calls to the Departmentfor Work and Pensions we served aletter on their legal department outliningthe engagement of sections 3, 6 and 8of the Human Rights Act 1998 by theirfailure to pay and threatening judicialreview proceedings. On 11th March2013 Philip’s ESA was paid and back-dated. For over two months he had noincome for heating or food at the sametime as struggling to come to terms withcancer and very heavy chemotherapyduring an extremely cold winter.

Philip has not yet undergone thedreaded ATOS assessment. If he failsand appeals his benefit will be reducedto £71 per week. From 1st April 2013 heis also subject to the bedroom tax andwill lose £14 from his ESA. In additionhe will have to pay £10 a week towardshis council tax which leaves him with£49 per week to live off.

The Law Centre can no longer helpPhilip as all legal help for benefitsadvice has been stopped by theGovernment’s legal aid cuts.

Philip has worked all his life andcontributed to society by paying histaxes. He now faces destitution andterminal illness with no support as aresult of benefit cuts.

Philip’s story (namehas been changed) –a Hackney LawCentre client

SL64_pp30-31_benefits-cuts_print 13/06/2013 21:41


Do socialists

still have

an alternativeconcept o

rights ?An obvious starting point is Karl Marx’s position on human rights. Wecan begin with his response in 1844 to Bruno Bauer’s pamphlet TheJewish Question, in which Bauer opposed Jewish demands for politi-cal liberation on the grounds that no one in Germany was emancipatedand that Jews should fight not for their liberation but for universal lib-eration. This sparked some caustic remarks from Marx on the limitednotion of liberation espoused by Bauer. Political emancipation, Marxobserved, took the form of negative liberties such as the right not to beimprisoned or the right not to be prohibited from having a profession.Marx wrote: ‘Liberty … is the right to do everything that harms noone else … [T]he right of man to liberty is based not on the associationof man with man, but on the separation of man from man. It is the rightof this separation, the right of the restricted individual, withdrawn intohimself. The practical application of man’s right to liberty is man’s rightto private property.’

Over the next forty years, Marx and Engels were to sharpen thiscritique of rights and develop a richer sense of how an alternative societymight work. But they never wavered from this original scepticism to

asks David Renton

SL64_pp32-35_rights-colombia_print 13/06/2013 22:42

t of ?demands for a universal ‘freedom’. Faced withthe proposal that there should be a right towork, Marx’s instinctive answer was todemand what his son-in-law Paul Lafarguenicely formulated as ‘the right to be lazy’, i.e.rather than just demanding that all should beable to work, Marx and his allies wantedeveryone to be free from having to work.

Perhaps the best developed example ofMarx’s critique of rights was his 1875 Critiqueof the Gotha Programme. All universal rights,Marx argued, by their nature, result in unequaltreatment: ‘Right, by its very nature, canconsist only in the application of an equalstandard; but unequal individuals (and theywould not be different individuals if they werenot unequal) are measurable only by an equalstandard insofar as they are brought under an

equal point of view, are taken from one definiteside only -- for instance, in the present case, areregarded only as workers and nothing more isseen in them, everything else being ignored.Further, one worker is married, another is not;one has more children than another, and so onand so forth. Thus, with an equal performanceof labour, and hence an equal in the socialconsumption fund, one will in fact receivemore than another, one will be richer thananother, and so on. To avoid all these defects,right, instead of being equal, would have to beunequal’.

Marx’s Critique is worth bearing in mindwhen considering, for example, the employer’sduty under section 20 of the Equality Act 2010to make reasonable adjustments for a disabledworker. If an employer employs two workers,one of whom is disabled and uses a wheelchairand one of whom does not, and the doors toenter the workplace are beside a short flight ofstairs, an equal balance between disabledworker and employer can only be achieved bythe employer buying a ramp to the door. Thesame treatment of both workers would resultin the employer discriminating against thedisabled worker. An equal outcome dependson unequal treatment. Even contemporary law,at its present limited stage of development,obliges the employer to buy the ramp; althoughit allows the hegemony of the employer back inby making the purchase necessary only if itwould be ‘reasonable’ to require it. What forcontemporary law is a heavily-qualifiedanomaly is in Marx’s hands, the principleunder which an entire legal system would beconstructed:

‘In a higher phase of communist society’, hewrote, ‘after the enslaving subordination of theindividual to the division of labour, andtherewith also the antithesis between mentaland physical labour, has vanished; after labourhas become not only a means of life but life’sprime want; after the productive forces havealso increased with the all-around developmentof the individual, and all the springs of co-operative wealth flow more abundantly – onlythen can the narrow horizon of bourgeois rightbe crossed in its entirety and society inscribe onits banners: From each according to his ability,to each according to his needs!’

This is one of those concentrated passagesof careful thought that repays careful re-reading. First of all, it is clear from it thatMarx, despite, his rights scepticism,understood the desire for justice that liesbehind most rights discourse, whether therights themselves are virtuous or otherwise. Hewas not hostile to justice but passionate aboutgoing much further in the same direction.

Second, in referring to ‘phases’ ofcommunist society Marx is describingsocialism not as a one and for all process, butas a series of steps towards an ideal. Like thenovelist who writes and rewrites the samebook, or like Marx himself in his decades longstruggle to complete Capital, we should notassume that the first draft will be the finalversion.

Third, long before a just system of ‘rights’could possibly be practical, all sorts ofconditions will have to be encountered andpassed: the breaking down of the division ofthe day between work and non-work, thespread of co-operative forms of production,and the extraordinary increase in human

productive capability that we could have ifonly the whole world had universal access tothe very latest technology on the same terms. Incontemporary terms, Marx is envisaging aworld in which all of Africa and all of Asia hadaccess to the same levels of agriculture andindustry as the most developed regions of theWest; Marx is asking what law there might beduring, and beyond, transitions of this scale.

In these circumstances, the revolutionaryfragment buried even in laws such as thepresent-day Equality Act law could bedeveloped and generalised, i.e. there would be‘rights’, but unlike the rights enshrined in theEuropean Convention on Human Rights, theequality principle would be equality ofoutcome rather than equality of opportunity.Everyone should give what they can; everyonemust have what they need.

Drawing on Marx, a useful approach to theproblem of right in the crisis of the present day,could be to disregard temporarily the searchfor further and better lists of rights in order tofocus on their revolutionary kernel: i.e. theright to a just outcome. Part of establishing afair outcome depends on a system ofexpropriation.

There are models, even undercontemporary law, of how this could work. Inthe emerging field of environmental law, thereis a developing concept of environmental‘responsibility’. For example, Section 24 of theSouth African constitution provides a right ofall people to have access:‘a. to an environment that is not harmful totheir health or well-being; andb. to have the environment protected, for thebenefit of present and future generations,through reasonable legislative and other mea-sures that:i. prevent pollution and ecological degrada-tion;ii. promote conservation; andiii. secure ecologically sustainable developmentand use of natural resources while promotingjustifiable economic and social development.’

A moment’s thought will show that the ideaof a right to prevent ecological degradation is aright that is only capable of enforcement ifthere are others, i.e. people holding property,who have caused or risk causing thatdegradation.

Polly Higgins’ Eradicating Ecocide usesinterchangeable terms of environmental‘responsibility’ and ‘stewardship’ and portraysthe key task of the moment as being to shift thefocus from commodity to responsibility.

Now we are used to hearing ‘responsibility’as a weasel-word to justify, for example, right-wing arguments that welfare benefits shouldnot be universal, but should be madeconditional, e.g. on a person taking up low-paid part-time work, which will contribute to ageneral lowering of the average wage.

But there are other notions of‘responsibility’ which point in more interestingdirections. When family members ask a courtto determine where a child should live, thestarting question is whether the applicant has‘parental responsibility’. The idea is verysimply that a child, as a human being, cannotbe subject to the ordinary principles of privateproperty, they cannot be owned. Accordinglyrather than asking first ‘who has the right tocare for the child?’, the court’s first question is‘who has the duty of care?’ Contrary to the




demands of campaigns such as ‘Fathers forJustice’, the answer will not necessarily be ‘thefather’, it may not even be either of the parents.Section 3 of the Children Act 1989 definesparental responsibility as ‘all the rights, duties,powers, responsibilities which by law a parentof a child has…’

When a local authority’s social workershave reached an interim view that a child issuffering or likely to suffer significant harmliving with their parents (section 31 ChildrenAct), they initiate care proceedings. The initialstep in these proceedings is often for the localauthority to ask the court if it may shareparental responsibility with the parents.

Children Act 1989 proceedings are not byany means ‘model’ instances of the law at itsbest. In ‘private’ Children Act 1989proceedings involving disputes betweenparents there are many examples of the lawgetting it wrong, whether by disregarding theviews of victims of domestic violence, or byreaching the right decisions in the event butdoing so slowly. In ‘public’ Children Act 1989care proceedings, courts are torn betweencompeting instincts including the knowledgethat children in care are often bitterly unhappy,and the consciousness also that some familiesare actually so unsafe that there is noalternative but to remove the child. Thepositive feature of this litigation is the absenceof a ‘parents’ rights’ discourse. A parent whosays merely that their child is their child,therefore it is their right that the child shouldlive with them, will not get far; the court willexpect a much more serious focus on the truebest interests of the child. If only we could learnto treat the ownership of property with thesame scepticism with which we already treatthe purported ownership of children.

As a conceptual example in considering

how a fully developed legal concept ofenvironmental responsibility might work, aperson who believes that a polluter riskscausing ecological degradation on a piece ofland, might petition a court complaining thatthe polluter has lost the right to environmentalresponsibility for that piece of land. A courtwould investigate. It might find that theapplicant’s case was made out, in which case,they could listen to proposals that theresponsibility for that piece of land should begiven to another. They might find that theapplicant’s case was hopelessly weak. Theymight instead find that the land should remainwith its present owner, but only on an interimbasis, subject to the present ownerdemonstrating that their custodianship wasrapidly improving and they were taking allsteps to prevent pollution.

There is no reason of principle why thereshould not equally be an overriding duty of‘social responsibility’. In order for someone toexercise any right as an owner of property, orfor any contract to be enforced, the ownershould be capable of being challenged byanyone – a worker, consumer, anyone – on thegrounds that their stewardship of the propertywas deficient, and should be given to another.Where an employer did not pay the minimumwage or their workplace was unsafe, theordinary principle should apply that theirworkplace should be passed to another.

The rule that is proposed is simple andintuitive. Questions of whether a workplace isproperly run could easily be determined byjuries, to whom we already leave inquests andsometimes very complex questions of criminallaw.

There is no political will in Parliament foranything like this model of social responsibilitybecause the large majority of political forces

are signed up to a vision of untrammelledcorporate power, with all the disasters that hascaused, in terms of recession, bankers’ bailouts, and collective austerity. We are not goingto see the expropriation of capital withoutsocial upheaval.

In working out the next step for the rightsdiscourse, socialists should go further than themajority of rights activists. We have a conceptof right in which the highest categories arehuman need, and agency to answer humanneed. The next step is a right of expropriationwhere property ownership limits humanpotential.

The simplest rebuttal of the presentproposal – for an overarching concept of socialand/or ecological responsibility which wouldbe capable of taking priority over all otherproperty rights and any contractualagreements – is that class society has been inexistence for around 10,000 years withouthaving anything like such a practice. Foraround a third of that time we have had anidea, through contract law, that property isdisbursed in agreements, the terms of whichare binding on the contracting parties. Nocommercial agreement could be attractive if itseffect was constantly uncertain. This is exactlythe spirit in which socialists should respond tobig questions about what the law should be inthe future. Socialists should demand what isabsolutely incompatible with the conditions ofcapital and the State: the right not to beexploited. We ask of course in a modestfashion, pointing out in this way the absurdlylimited conditions under which capitalismallows billions of people worldwide to live.

.David Renton is a barrister at Garden CourtChambers and a member of The HaldaneSociety’s executive committee.

‘We have a concept of right in which the highest

categories are humanneed, and agency to

answer human need.’



As it turns out, we were lucky to see him at all,as the UK Government had, withoutexplanation, not issued his visa in time. It wasonly after a concerted effort by the organisationJustice for Colombia (‘JFC’) and UK Membersof Parliament that Carlos was finally givenclearance to travel.

While this seems a mere inconvenience, it hasgreater ramifications as Carlos is one of themost prominent peace figures in Colombia.Since the beginning of the civil war, Colombianhuman rights defenders have faced continuousharassment, death threats, torture,disappearances and assassinations at the handsof paramilitaries and the military, often with thedirect or indirect collusion of the State.

Shockingly, this targeting of human rightsdefenders has only increased since the beginningof the peace process in November 2012.

Fresh from the small victory of hisadmittance into the UK, Carlos was upbeat.Considering his status as a respected politicalfigure by both the left and right, we began bytalking about his political experience.

Could you tell us about your politicalcareer up to the point of the current peaceprocess? All my life I’ve been on the left. Since secondaryschool I was in the Colombian CommunistParty. I studied law at university and in the1970s moved to the Soviet Union to work forthe federation of youth for five years.

On my return to Colombia I again started toorganise within the Communist Party. In 1991 I became editor of Voz, replacing lawyer andformer senator Manuel Cepeda, who was thenmurdered by paramilitaries with the complicityof the State in 1994.

During the time of Pastrana’s Government I was included in the Commission of Notableswhich was created as part of the peace processof that period.

In 2008 I jointly published a book entitledWhat, How and When do you Negotiate withthe FARC? which was a collection of YezidArteta, Medofilo Medina and my experiences of working as an intermediary and advocate forpeace.

With the introduction of the UribeGovernment it became impossible to createspaces for peace and dialogue. The Governmenteven tried to falsely accuse me of working withthe FARC, claiming to have found damningdocuments in a computer which had beenrecovered following a Government raid of aFARC camp. A case was begun against me inthe courts but was later dropped as the courtrecognised that there was no merit to the claims.Unfortunately these false accusations are madeto intimidate people into ceasing their humanrights work. Why have previous peace talks failed? The reason the peace talks with Pastrana failedare the same ones which existed in previoustalks, i.e. the establishment did not allow forany political, social or economic change. Theywould ideally like to see the present peace talksresult in a simple laying down of arms, ratherthan any substantial change in the society. Theyhave a will for peace, but not for change.

It is correct to say that there were militaryactions undertaken by the FARC during theprevious peace process which precipitated theend of the talks, but these were simply a pretext

for the establishment to abandon a process theyunderstood would not lead to a simpledemobilisation of the guerrilla. How is the current process any different? Unlike previous processes, the Government hasbeen willing to discuss the agenda for the talks.This is a good sign as it shows from the outsetthat the Government is willing to discuss thepossibility of change. There are five topics onthe agenda: (1) Comprehensive agrariandevelopment policy; (2) Political participation;(3) An end to the conflict; (4) Solution to theproblem of illicit drugs; and (5) Victims.

Though these topics are important, we areconcerned that the Government has insistedthat the economic model in Colombia is notpart of the agenda.

In relation to political participation, theGovernment wants to reduce this to simplygiving guarantees for FARC members whichwill allow them to run in elections. We believethat the idea of public participation needs to begreater than this. We do not only wantdemocratisation following the talks, we needpopular participation in the talks themselves.Only popular pressure can create momentumfor the oligarchy to accept what is necessary forpeace.

‘We believe that the ideaof public participationneeds to be greater’

Carlos Orjuelaspeaks to Colombian humanrights campaigner and Vozeditor Carlos Lozano

There are many problems arising from thisprocess but I can see that there is definitemomentum for a meaningful peace among thepeople which the Government at least sees isnecessary to acknowledge and show support for. What role do international bodies have inthis process?We believe that the international Inter-American Court, the International CriminalCourt and the Commission of Human Rightsall have a part to play in this process. They havein their own ways been useful bodies whichhave highlighted human rights abuses inColombia. We are worried however that thesebodies may create unnecessary obstacles to thepeace process, in particular around the issues ofvictims and transitional justice. There iscurrently a very strong debate taking placeamong the left as to how to proceed with thesematters. Eventually there will need to be a Truth Commission to deal with these mattersthoroughly. What role do lawyers have internationallyin this process?The primary role for lawyers around the worldis to raise awareness of the peace process and toplace pressure on the Colombian Governmentto make sure that the process does not collapse.



The Permanent Peoples’ Tribunal (PPT), the most widelyrecognised successor to the Russell Tribunal of the 1960sand 1970s, will be holding hearings in Mexico City from19th to 21st August 2013 focussed on systematic humanrights violations against both migrants in transit andmigrants of Mexican origin, and related issues regardingthe rights of refugees and victims of forced displacement.Many of these migrants have their origins in indigenouscommunities and peoples in Mexico, Central America,and the Andean region.

These hearings are part of an unprecedented three yearprocess undertaken by the PPT to assess the responsibilityof State and corporate actors within the context ofMexico’s overall human rights crisis which has deepenedover the last six years, resulting in over 100,000 civiliansdead and disappeared since 2007 under both formerpresident Felipe Calderón and current president EnriquePeña Nieto. Further hearings regarding migrant rightsissues pursuant to the PPT process in Mexico will be heldin May 2014, and a final general hearing to conclude theprocess in June or July 2014.

Serious human rights violations have persisted inMexico since Peña Nieto took office in December 2012,returning the former longtime ruling party known as theInstitutional Revolutionary Party (PRI) to power,following bitterly disputed elections earlier that year. Theauthoritarian régime headed by the PRI and its previousincarnations for over 70 years between 1929 and 2000was characterized by widespread human rights violationsand corruption, including deep-seated complicity withMexican and international drug cartels. The country’sfirst relatively free elections for president took place inJuly 2000, but Mexico has never undertaken key steps tocomplete its purported process of democratic transitionsuch as trials for human rights crimes prevalent duringthe PRI régime, and the organisation of a national TruthCommission, as in similar contexts such as Argentina,Chile, Guatemala, El Salvador, and Peru.

Conceptual and methodological foundations of the August hearingsThe hearings build on conceptual and methodologicalfoundations laid during the PPT’s two year process ofhearings in Colombia between 2006 and 2008, given theincreasingly convergent character of human rightsviolations in Colombia and Mexico (what is referred to inthe latter context as ‘colombianisation’). Thesefoundations also include the conclusions resulting fromhearings held in Mexico City and Quito, Ecuador inOctober and November 2010 and again in Mexico Cityin November 2011, by the first tribunal of conscience(International Tribunal of Conscience of Peoples inMovement-ITCPM) focussed on violations of migrant

Mexicanstandoff

by Camilo Pérez-Bustillo

rights throughout the world, which was organised incollaboration with the PPT by over 500 organisationaland individual adherents in some 60 countries.

The August 2013 hearings in Mexico City also drawupon the experience of the International Migrants’Tribunal which organised hearings regarding the impactof the Global Forum on Migration and Development(GFMD) on the rights of migrants, which was organisedin Manila in November 2012 by a wide range of migrantorganisations led by the International Migrants’ Alliance(IMA).

The PPT hearings in Mexico also reflect broaderefforts to rethink and reshape the epistemology, history,theory and praxis of human rights from the perspective ofthe Global South, based on the understanding thatfailures to fully recognise the dignity and rights ofmigrants and indigenous peoples, ‘peoples in movement’,reflect the overall deficiencies of hegemonic, Eurocentric,neoliberal, and liberal versions of such rights.

This critique includes an emphasis on the PPT andsimilar tribunals of conscience as spaces for theconstruction of alternative, counter-hegemonic forms ofjustice, law, and rights ‘from below’, and on theaffirmation of a universal right to freedom of movementwhich includes the right to migrate, not to migrate, andnot to be arbitrarily displaced. The Mexican hearings arealso grounded in the understanding that mostcontemporary processes of human mobility constitute aviolation of the right to migrate to the extent that theyresult from conditions of life in communities andcountries of origin which make a dignified life impossible,producing multidimensional violations of internationallyrecognised economic, social, and cultural rights, such aspoverty, inequality, and multiple forms of discrimination.Such conditions in turn are the predictable result of theimposition of convergent forms of State, structural, andsystemic violence reflected in neoliberal ‘free market’ and‘free trade’ policies, mega-development projects, and thedevastation of natural resources and the environmentwhich are inherent in capitalist forms of globalisation.Under such circumstances most processes of humanmobility in fact constitute variations of forced migrationand displacement.

Global migration policy trends: the post-9/11 paradigmThe August 2013 hearings in Mexico will includeexploration of the extent to which serious, recurrentviolations of migrant rights affecting both migrants ofMexican origin (over 34 million currently living in theUSA) and hundreds of thousands of migrants in transitthrough Mexican territory; reflect broader trends inglobal migration policy. These include the emergence of apost-9/11 paradigm characterised by the subordinationof migration policies to the supposed imperatives of post-9/11 conceptions of ‘national security’, ‘anti-terrorism’,and the so-called ‘drug war’, as well as their

SL64_pp36-37_mexico_print 13/06/2013 21:30

‘externalisation’ (extra-territorial application of USmigration policies on Mexican soil) and regionalisation,pursuant to the Security and Prosperity Partnership ofNorth America (the ‘national security’ component of theNorth American Free Trade Agreement – NAFTA), andthe Mérida Initiative (Mexico’s equivalent of PlanColombia), in the Mexican context. This paradigm alsoincludes the ‘securitisation’ of Mexico’s migrationpolicies, the militarisation of its northern and southernborders and overall of the country’s public securityapparatus, as well as the criminalisation of irregularmigration flows heading north through Mexican territorytowards the USA.

The hearings in Mexico will also explore the extent towhich the tendencies referred to above in the Mexicancontext are analogous to similar trends such as the role ofFrontex within the framework of the European Unionand Schengen. In both cases the net result of theapplication of such policies has been a sharp increase inthe number of migrants dead and missing en route in thedeserts and seas along the peripheries of the US andEurope, which vastly exceed the victims of pastaberrations which are much more generally recognisedsuch as the Berlin Wall. One of the Tribunal’s keyobjectives with the Mexico hearings is to contributetowards more concerted and effective exchange andcollaboration between migrant rights movements anddefenders in the US-Latin American context and in that ofEurope, Africa, and the Middle East, as well as on aglobal scale.

Substantive elements of the August 2013 hearingsThe August 2013 hearings will focus on issues related tothe rights of both Mexican migrants and migrants intransit, primarily from Central and South America andthe Caribbean, within the context of what the 2010Tribunal of Conscience has characterised as theimplementation of a politics of ‘State terror’ againstmigrants in transit. This will include cases presented byMexican and international migrant rights defenders andmigrant networks and organisations arguing that the PPTshould approach such issues from the perspective of theaffirmation of a universal right to free mobility, freedomof circulation or movement, including the right tomigrate, not to migrate, and not to be forcibly displaced.This framework is grounded in the recognition that theserights cannot be freely exercised within contextscharacterised by convergent processes of State, structural,and systemic violence that make a dignified lifeimpossible in communities and countries of origin. Theseforms of violence include militarisation, paramilitarism,and the effects of neoliberal ‘free market’ and ‘free trade’policies, mega-development projects involving miningand other forms of exploitation of natural resourceswhich result in environmental devastation and climatechange.

A key specific case which will be presented is that ofthe August 2010 massacre of 72 migrants in transit fromHonduras, El Salvador, Guatemala, Ecuador, and Brazil,which has been characterised by the 2010 InternationalTribunal of Conscience of Peoples in Movement as thefirst massacre of ‘continental dimensions’, and as a caseof ‘migrant genocide’, where migrants in transit weretargeted for elimination because of their status as

migrants. It will be argued that the massacre, whichaccording to State authorities was carried out bymembers of the ‘Zetas’ drug cartel, was both thepredictable and thus preventable result of the overallpolicy of State terror against migrants in transit, whichlays the basis, among other factors, for a finding of Stateresponsibility for actions and omissions whichculminated in this grave incident.

The massacre and the mass graves with hundreds ofstill mostly unidentified bodies which were found in thesame municipality of San Fernando in the monthsfollowing the massacre, arguably included both crimesagainst humanity and potentially, war crimes, if theTribunal determines that Mexico’s so-called ‘drug war’,including the militarisation of the country’s overall publicsecurity apparatus, amounts to an ‘armed conflict’ withinthe meaning of the Geneva Conventions andinternational humanitarian law.

Most of the regions in Mexico which have beenmilitarised pursuant to the ‘drug war’ are alsocharacterised by latent armed insurgencies such as theZapatistas in Chiapas, which the Mexican State hasresponded to with concerted counter-insurgencyinitiatives and the promotion of paramilitary forces (oftenintertwined with drug trafficking cartels) similar to thosewhich have become the single most important sectorresponsible for human rights violations in Colombia.Militarisation and paramilitarism are in turn among themost important causes of forced displacement in bothColombia and Mexico, and arguably also of forcedmigration in Mexico.

Other issues or cases which will be presented inMexico in August include alleged violations of whatmigrant advocates have characterised as rights to refuge,asylum, hospitality, solidarity, humanitarian assistance,and sanctuary, recurrent patterns of harassment andthreats against migrant rights defenders, and policies ofarbitrary and abusive detention including torture andother forms of inhuman and degrading treatment ofmigrants in transit on Mexican territory.

Members of the international jury, advocates, andobservers participating in these hearings will includejurists and scholars from the USA, Norway, the UnitedKingdom, Iran, Colombia, Guatemala, and Brazil,among others. Honorary members of the jury includelongtime US political prisoner, journalist and activistMumia Abu Jamal, a former Black Panther.

Camilo Pérez-Bustillo is Research Professor of the GraduateProgramme in Human Rights and the Faculty of Law,Autonomous University of Mexico City (UACM) and wasResearch Professor at the Instituto Tecnológico y deEstudios Superiores de Monterrey (ITESM).


SL64_pp36-37_mexico_print 13/06/2013 21:30


Above: 23rd March,1982. General EfrainRios Montt, centre,announces theformation of a juntaat a press conferencein Guatemala City.Left: Rios Montt, May2013, a free man.

SL64_pp38-41_guatemala-joinpage_print 13/06/2013 22:41

I first went to Guatemala in the summer of 2002 to volunteerat the Centro para la Acción Legal en Derechos Humanos(CALDH), a well-known human rights legal centre inGuatemala City. I recall that on one of my first days there,the legal director explained that Guatemala was like aGabriel Garcia Marquez novel. Some things changed as newcharacters entered the story but no matter how manyadvances people thought they had made, history repeateditself and everything returned to the way it had been before.

Guatemala is a spectacularly beautiful country. Itsindigenous people make up approximately 39 per cent of thepopulation, the vast majority of whom are Maya and whosecultures and traditions have been preserved since the Spanishconquest.

During the Cold War, Guatemala, like many countries,was caught between the West and the Soviet Bloc. In the1950s, a reformist government attempted to introduce someland reform by appropriating land from wealthy landownersand redistributing it. However, the President, Jacabo Arbenz,was ousted from power in 1954 by a CIA backed coup.Following this, a number of left-wing guerilla movementsbegan to form and a civil war ensued between 1962 and1996.

Over 200,000 people died during the conflict. By far themost violent part of the war took place between 1978 and

1983 under the presidencies of Lucas Garcia (1978-82) andEfrain Ríos Montt (1982-1983) who had overthrown theformer in a military coup. According to the Inter AmericanCourt of Human Rights, their counterinsurgency policy wascharacterised by ‘military actions geared toward destructionof groups and communities as well as the forceddisplacement of indigenous communities when they wereconsidered potential supporters of the guerilla forces.’ TheGuatemalan army identified the Mayan indigenous peopleas ‘domestic enemies’ as they were deemed to be the socialbase for the guerillas and its ‘scorched earth’ policy entailedthe massacre and forced displacements of many of theircommunities.

One such massacre took place in the village of Plan deSánchez in Baja Verapaz. The villagers were accused by themilitary of belonging to the guerilla after they refused toparticipate in the Civil Defence Patrols (PAC). In early July1982, a plane flew over the village and bombed places nearthe inhabited areas. Then on 18th July 1982, a group ofapproximately 60 people, including members of the army,military commissioners, members of the PAC and possiblymembers of the judiciary entered into the village. The men,women and boys were separated from the girls and youngwomen. Approximately 20 girls aged between 12 and 20were mistreated, raped and murdered. The other boys


In May, the Constitutional Court inGuatemala overturned the genocideconviction of the former dictator José Efraín Ríos Montt. The ruling is ablow to those fighting for justicefollowing Latin America’s ‘dirty wars’.The general had earlier beensentenced to 80 years in prison forcomplicity in the deaths of 1,771people. Siobhán Lloyd looks at thecountry’s troubled past and present...

>>>



and girls were beaten to death. Others were forced togather into a house and its yard. Once they were there,members of the commandos threw two hand grenades andfired indiscriminately at their victims. It was estimated that268 people were executed that day. Those who survived fledthe village.

This pattern was repeated across certain areas of thecountry. Some 200,000 refugees crossed the border withMexico between 1981 and 1984. However, this did not stopthe Guatemalan army, which sent aircraft and soldiers in toMexico to harass and kill the refugees who had fled fromRíos Montt’s brutal regime.

The civil war ended in 1996 following lengthy peacenegotiations. As part of the peace accords, the constitutionwas amended so that Guatemala’s Mayan population andtheir lifestyles traditions and customs were to be protected(Article 66) and no one who had come to power through acoup could become president (Article 186).

In 1998, the Dioceses of Guatemala, under ArchbishopGerardi, published Guatemala: Never Again, a reportdocumenting the atrocities committed by both State forcesand the guerrillas during the civil war. The report found thatthe vast majority of the violations had been committed by theGuatemalan army, paramilitary forces and other State actors.Two days later Archbishop Gerardi was brutally murdered.The following year, the Commission on HistoricalClarification produced a report: Guatemala: Memory ofSilence, in which it found that approximately 200,000people had been killed during the civil war but that acts ofgenocide had been perpetrated against certain Mayancommunities between 1981 and 1983 when 81 per cent ofthe grave human rights violations had been committed.

CALDH’s legal department was the representative of theAsociación para la Justicia y Reconciliación, an associationof survivors of some of the worst massacres committedduring Lucas Garcia and Efrain Ríos Montt’s regimes. At thetime I was there, the legal department was in the process ofcollating evidence from the survivors and trying to convincethe State authorities that it should investigate allegations ofcrimes against humanity and genocide perpetrated by LucasGarcia, Ríos Montt and their military high command, aswell as taking cases, such as that of Plan de Sánchez, to theInter American Court of Human Rights. The lawyers andothers in the organisation were followed and threatened.Many of them had already spent some time in exile in

Mexico or the USA themselves during the civil war.I returned to Guatemala in the summer of 2003. Ríos

Montt had been nominated by the ruling GuatemalaRepublican Front (FRG) to be their candidate in thepresidential elections that were to be held in November2003. His candidacy had been rejected by the SupremeCourt of Justice on the basis that he was constitutionallybarred having come to power through a military coup. TheConstitutional Court then overturned that decision on thebasis that the constitution had been drafted after he hadcome to power. However, in what felt like a game of judicialping-pong, the Supreme Court then suspended his candidacywhile it heard another complaint only to be overruled by theConstitutional Court once again. Meanwhile, on 24th July2003, approximately 35,000 of Montt’s supporters took tothe streets of Guatemala City where they attacked thebuildings and offices of opponents of his candidacy. Ajournalist was killed. CALDH’s offices were closed down aseveryone fled to safety in a nearby district.

Although the mobs left the streets the following day, therewas a harrowing sense of fear everywhere and people wereextremely concerned about what could happen if RíosMontt actually came to power.

Fortunately, the Guatemalan electorate rejected his bid tobecome president and he only won 11 per cent of the vote.He was then placed under house arrest and investigated forthe manslaughter of the journalist who had been killedduring the earlier unrest. The charges were dropped in 2006.Montt was then elected as a congressman and benefittedfrom immunity until he stepped down in 2012. Withinweeks he was summonsed to court and charged withgenocide and crimes against humanity.

On 10th May 2013, 86 year old Ríos Montt wasconvicted of genocide and sentenced to 80 years’imprisonment by a Guatemalan court. However, hisconviction was set aside only 11 days later by theConstitutional Court which annulled all proceedings thathad taken place since 19th April 2013 when the General hadbeen temporarily left without a defence lawyer.

Lucas Garcia died in exile in Venezuela in 2006 before hisvictims were able to see him convicted for the heinous crimeshe was alleged to have committed. Let’s hope that historydoes not repeat itself.

Siobhán Lloyd is a barrister at 1 Mitre Court Buildings.

‘The Commission on HistoricalClarification produced a report:Guatemala: Memory of Silence, in whichit found that approximately 200,000people had been killed during the civilwar but that acts of genocide had beenperpetrated against certain Mayancommunities between 1981 and 1983when 81 per cent of the grave humanrights violations had been committed.’

>>>


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Reviews

Jai Bhim Comrade (2011)Directed by Anand Patwardhan

Jai Bhim Comrade represents a 14 year labour of love and will bythe documentary film makerAnand Partwardhan. This epicthree hour film was given a rarescreening at the Institute ofContemporary Arts on 20thMarch 2013 as part of this year’sHuman Rights Watch FilmFestival. It is due for a furtherscreening at the SheffieldDocumentary Film Festival in June2013. As those who attended theQ&A session after the film wasshown at the ICA will know,Anand Patwardhan is anunashamed socialist. He has madein this film an eye-opening accountfor those unfamiliar with India’ssevere caste discrimination.

The film commences with theevents of 1997 that led to the policeshooting of 10 unarmed Dalitprotesters in the Ramabai Colonyin Mumbai. The Dalits are thosefrom the oppressed caste known asthe ‘untouchables’. The film goeson to shine a light on the sociallydestructive stratification of thecaste system that has existed forover 2,000 years.

Patwardhan traces events thatfollowed the 1997 shootings of theDalit protesters which saw thesuicide of the Dalit singer, poet andactivist, Vilas Ghogre, who foundthe deaths of the protesters toomuch to bear. The film seeks toillustrate the dignity within theDalit community. There followscompelling individual testimonyand riveting footage asPatwardhan’s camera movesthrough the dusty alleys of theRamabai Colony and intoMaharashtra villages. Given theconnection to Vilas Ghogre, thereis a particular focus in the film onthose musicians and poets whocontinue to pass on their songs of‘upliftment’ and lament. The songsinvariably urge their listeners tocontinue in their struggle fordignity as they blend dance,politics and humour.

The songs recorded in this filmrecall Dalit heroes of the past, mostnotably the political leaderBhimrao Ambedkar, also knownas ‘Dr Ambedkar’. The incredibleand progressive story of DrAmbedkar forms a centre piece ofthe film. Disturbingly the memoryof Dr Ambedkar and hissignificance is shown as beingappropriated and subverted byright wing nationalistic politicalparties seeking the Dalit vote.

Dr Ambedkar rose from theDalit caste to gain PhDs fromColumbia University in the USA

and then the London School ofEconomics. He was also called tothe Bar in England beforereturning to India to seek torepresent and act as an advocatefor his caste. He is perhaps the leastwell known of the three barristers,Gandhi and Nehru being theothers, involved in India’s move toindependence from the colonialrule of Britain. It is striking that DrAmdbedkar, a man from thelowest caste for whom it is deemededucation should not be permitted,was chosen by Gandhi to writeIndia’s new constitution. One ofthe memorable Dalit songs of‘upliftment’ about Dr Ambedkarheard in the film which willresonate with readers of this

magazine is ‘My barrister iscoming home’.

The scope of Patwardhan’s filmis stirring. In this respect it isreminiscent of similarlyconsummate and lengthydocumentaries such as When theLevees Broke by Spike Lee andThe Battle of Chile by PatricioGuzmán. The film is presently onlybeing screened at film festivalssuch as in Sheffield. Patwardhan,who made the equally engrossing1985 film Bombay Our City,seems presently content for hisfilms to receive their mainscreenings and distribution withinIndia. A wider release can only behoped for.Tim Potter

Indian eye-opener

Lives;RunningBy DavidRentonZero booksISBN 978-1-78099-235-8

After a year inwhich sport

has been hugely prominent, mostobviously through the LondonOlympics, Lives; Running is anunusual book which provides adeeply personal narrative of theauthor’s experiences of running

both competitively andrecreationally.

The descriptions of earlyexpectations of – and indeedrealised – success in middledistance running at school bringthe reader into a private worldwhere the joys of achievement andpain of injury impact heavily in acontext where great emphasis isplaced on sporting prowess,through peer and family culture.

The author however interjectsinteresting facts and analysis of asport for which he remains clearlypassionate, most significantly ofthe oft-forgotten rivalry in middledistance running between SteveOvett and Sebastian Coe thatdeveloped in the late-1970s and

which reached its peak at the 1980Moscow Olympics.

Fascinating detail is providedabout those two individuals’backgrounds and experiences andwhich in particular furthers adegree of insight into Coe’strajectory from ungracious loserto Ovett in the 800m Olympicfinal, to Tory MP and thenultimately to crowned glory as theChair of the London OrganisingCommittee of the Olympic andParalympic Games (LOCOG) andbeyond.

As the currently shallowdiscussion about the ‘legacy’ of theLondon Olympics proceeds, it isrefreshing to read an account ofsport by someone who was active

in the important critique andattendant activism surroundingthe Games.

The contributions of suchindividuals, as people passionateabout sport but also about realaccessibility and participation willbe essential as the memories ofLondon 2012 fade, the corporateOlympic juggernaut moves on andcuts in public funding for leisureservices translate.

In essence however Lives;Running is a memoir of oneindividual’s relationship to sportand the power of the same toultimately provide straightforward enjoyment, far from themadding crowd or otherwise.John Hobson

Race aware

Anand Partwardhan’s epic three hour film illustrates the dignity of theDalit community in the face of India’s severe caste discrimination.

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