Socialist Lawyer No.59

Active solidarity

Resistance to the cuts is a multi-faceted movement. The next big protest is the Pensions Justice Day of Action, on Wednesday 30th November 2011, called by the TUC.

As I write, public sector unions are balloting their members for action and we encourage all Haldane members in the public sector to vote to defend their pensions and public services. The Haldane Society will be providing practical solidarity to workers on strike in defence of public services.

Len McCluskey in this issue calls for industrial action, and protest on the street – the oldest form of democracy. He voices support for UK Uncut and for the student protests, and opposition to the police tactics of kettling and other forms of containment. We agree with McCluskey that what is needed is resistance at all levels and across all groups.

Riots may not be a political tactic, but they certainly reflect the sheer desperation and alienation experienced by poor young people in urban environments. They have seen their access to higher education snatched away from them – through the increase in university fees and the abolition of the EMA – they regularly find themselves subject to heavy policing, they are at the sharp end of the cuts to welfare benefits and indeed legal aid, and in August 2011 it all just snapped. Connor Johnston, from Young Legal Aid Lawyers, gives a vivid account of observing the Hackney riots from his window and remarks on the ‘near impossibility of escaping poverty’ for many young people.

Meanwhile, the Tories have stepped up the attack on the Human Rights Act. The insidious propaganda against it relies on xenophobia and right-wing ‘law ‘n’ order’ type rhetoric: rights are appropriate for law-abiding British citizens but immigrants, criminals, travellers and others are demonised. This rhetoric deliberately misses the points that rights are rights no matter what. The whole point of human rights is that they should not be determined by political expediency or popular prejudices.

Human rights are under attack all over the world. Colombian trade unionist, human rights defender and academic Liliany Obando has been detained, without charge or trial, for over three years. Whilst the new Santos government in Colombia promised that his Government would have ‘a firm and unwavering’ commitment to human rights, on average one Colombian human rights defender is murdered every three days.

In solidarity with our comrades defending human rights across the globe, The Haldane Society is holding a conference ‘Defending Human Rights Defenders’ on Friday 24th February 2012 in Central London. We will focus on supporting activists – lawyers, trade unionists, journalists, NGO workers, and political campaigners – who risk their lives for their commitment to social justice and human rights. We have invited delegations from Colombia, Palestine, the Philippines, Swaziland and the Caucasus region. We hope that the audience will include members of an even broader range of national and international campaigning organisations and solidarity movements. More details are on the back page.

Defending Human Rights Defenders will be a fantastic opportunity to provide practical support and solidarity to comrades facing death threats for standing up for human rights. Please circulate the event widely, and contact Haldane Vice-Chair Anna Morris at dhrd@haldane.org if you can offer practical assistance in the organisation of the event.

We are sad to report the death of Haldane Society Vice-President Professor Kader Asmal in June 2011, and we are proud and privileged to have been associated with him. Kader Asmal was a South African lawyer, stalwart of the freedom struggle and long-standing Haldane member, who worked while in exile principally at Trinity College, Dublin. Besides representing the ANC in Ireland, he found the time to champion human rights in Northern Ireland, chairing an inquiry into the British Army and RUC’s shoot to kill policy and helping to found British Irish Rights Watch. On his return to South Africa, after the fall of the apartheid-regime, he helped to write South Africa’s Bill of Rights and proposed setting up the Truth and Reconciliation Commission, as well as serving as Minister for Water and Forestry Affairs and then as Education Minister. Richard Harvey and Michael Seifert share their memories of Kader.

Kader told the ANC’s National Executive Committee in 1993, when some members were anxious to excuse human rights abuses committed by their own organisation: ‘Human rights are human rights, they belong to all human beings, whoever they might be’. Wise words, which the ANC was right to accept, and which we need to repeat whenever Theresa May, The Daily Mail and David Cameron try to whip up xenophobia and hatred.

Liz Davies, chair of the Haldane Society of Socialist Lawyers

lizdavies@riseup.net

"Justice should not depend on luck" by Gabe Tan

Gabe Tan argues that fresh evidence should not be needed in miscarriages of justice

The Court of Appeal (Criminal Division) is often described as the safety net of the criminal justice system. One of its key functions is to ensure that the wrongly convicted can have their convictions quashed. In 1995, following a series of high profile miscarriages of justice including the Guildford Four and the Birmingham Six, the Criminal Cases Review Commission was established as an added safeguard to the Court of Appeal. Its role is to review alleged miscarriages of justice and refer convictions and sentences deemed to have a ‘real possibility’ of being quashed back to the Court of Appeal.

Yet, just how effective are these safeguards in protecting the innocent and ensuring their prompt acquittal?

On the 18th March 2009, Sean Hodgson walked out of the Royal Courts of Justice frazzled and overwhelmed by the crowding press. After 27 years of incarceration, it did not take the Court of Appeal much deliberation to declare Hodgson a free man. Hodgson’s conviction for the murder and rape of Teresa de Simone was overturned when DNA testing on biological swabs taken from the victim proved him to be factually innocent.

The Forensic Science Service very soon became the target of the media’s fingerpointing exercise for wrongly reporting that the swabs were destroyed 11 years earlier when the request for DNA testing was first made. Hampshire Police was also subjected to criticism for ruling out another suspect, David Lace, who confessed to the murder in 1983 and took his own life shortly after.

However, the focus on blaming individual parts of the criminal justice jigsaw lost sight of the systemic dysfunctions with the criminal appeal system that, for over two decades, failed to overturn Hodgson’s conviction.

The jury’s conviction of Hodgson back in 1982 was hardly surprising. At trial, the jury heard how Hodgson made a series of voluntary confessions – first to a priest, then to a prison officer, to the police and to his own solicitor. He made oral and written admissions to the murder, each time giving a detailed account of how he killed Teresa de Simone – details which, the prosecution claimed, could only have been known by the killer. Supporting his confessions, his blood group was a match to that of the killer, and he was undoubtedly present in the locality at the time of the murder.

The unreliability of Hodgson’s confession was put forward at trial and, certainly, when he applied for leave to appeal in 1983. Hodgson was a notorious compulsive liar with a known severe personality disorder. He had made repeated false claims to the police for other criminal offences, including confessions for two other murders that he could not have committed as they did not happen. Many of the details that the prosecution claimed could only have been known by the killer were widely reported in newspapers and television reports.

The then Court of Criminal Appeal dismissed Hodgson’s leave to appeal almost as quickly as the Court of Appeal would allow it 26 years later. The initial appeal was dismissed on the basis that these arguments, as forceful as they may be, were either already heard by the jury or could have been made at the time of his trial. Instead, presumably because counsel had thought that Hodgson was unlikely to be able to withstand the prosecution’s crossexamination, a tactical decision was made for Hodgson to give an unsworn statement from the dock which barely gave details of why and how he had made up the false confessions. The safety net of the appeal court offered little protection to this vulnerable man. Rather, a severely mentally ill defendant was somehow to be individually blamed for not being able to stand in the dock and convincingly articulate to the jury the complex psychological processes that made him repeatedly confess to the most heinous of crimes.

The advent in knowledge on the phenomenon of false confessions appeared to be of no help at all to Hodgson either. Since the early 1990s, dozens of others who voluntarily confessed to crimes that they had not committed have had their convictions quashed due to fresh psychiatric evidence not heard at trial that rendered their convictions unsafe. Key examples include Judith Ward, Andrew Evans, Ashley King, Darren Hall and Patrick Kane who all suffered from forms of psychiatric or personality disorders that made them vulnerable to false confessions. As far back as 1989, the Lloyd-Bostock report cited false confessions as the second biggest cause of wrongful convictions in Britain after eyewitness misidentification. The pioneering work of internationally renowned forensic psychologist Professor Gisli Gudjonsson further enhanced our understanding of how even ordinary people with normal intelligence can be susceptible to making false confessions either voluntarily or under the pressures of police interrogation. It appeared that because Hodgson’s history of making false confessions was already known to the jury who nevertheless decided to convict him, the doctrine of finality precluded the (un)reliability of his confession from being re-examined.

As with all other appeals against conviction, the primary way to defy this long-standing doctrine is to find fresh evidence that renders a conviction unsafe – a requirement under section 23 of the Criminal Appeal Act 1968 and section 2 of the Criminal Appeal Act 1995 respectively. Hodgson’s fate was therefore sealed, at least until luck befell him with the discovery of the exonerating DNA evidence – the fresh evidence that held the key to his eventual acquittal by the Court of Appeal.

Hodgson is one of the ‘lucky’ few – perhaps an odd term to describe someone who served almost three decades of wrongful incarceration. However, the discovery of fresh evidence is not something that can be guaranteed for every innocent victim of wrongful conviction. Indeed, the Criminal Cases Review Commission, which similarly applies the fresh evidence criteria in deciding whether to refer an application back to the appeal courts, has referred fewer than four per cent of over 13,000 applications it has received since its establishment.

The Innocence Network UK, established at the University of Bristol in September 2004 to facilitate investigations into alleged wrongful conviction has, to date, deemed around 200 prisoners (out of over 1,000 requests for assistance) to have a plausible claim of innocence. Many are convicted on evidence that is dubious to say the least – alleged cell confessions; inconsistent witness testimonies; questionable forensic evidence; and forms of highly circumstantial evidence. Almost all these 200 prisoners have failed in their first appeal – the principal reason being that arguments relating to the unreliability of the evidence that convicted them have already been heard by the jury and, unless fresh evidence is produced, the Court of Appeal is not entitled to go behind the jury’s verdict. Around half of these cases have been refused at least once by the Criminal Cases Review Commission. Despite the questionable circumstances of their convictions, the Criminal Cases Review Commission, whose role is generally confined to a review of fresh evidence, can do little, if anything, to assist them.

However, returning to the case of Hodgson, it should not have required fresh evidence in the form of a DNA exoneration to quash his conviction 27 years later. He was convicted mainly on his own confession, which we knew then and certainly more so in the last two decades, to be an inherently unreliable form of evidence. Hodgson’s conviction should arguably have been overturned much earlier on the basis of his questionable confession alone. Yet, without the miraculous discovery of the DNA evidence, Hodgson would most certainly still be trapped within the prison system.

If there is anything that Hodgson’s wrongful conviction has taught us it is that justice should not be dependent on the luck of finding fresh evidence. If the overriding concern of the Court of Appeal and the Criminal Cases Review Commission is truly about safeguarding the innocent, then the requirement for fresh evidence should not be a barrier for revisiting the convictions of those who might be.

Gabe Tan is Executive Director of the Innocence Network UK (INUK)

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Justice for the Morong 43

The Haldane Society of Socialist Lawyers supports the Alliance for the ‘Justice for the Morong 43! Justice for all victims of human rights violations! Alliance’. The Morong 43 are the 43 health workers in the Philippines who in 2010 accused of being members of the New People's Army, who were illegally arrested following an illegal search. The Morong 43 suffered both physical and psychological torture while in military custody and were denied access to lawyers for several days.

Click here to read our letter of support for the Alliance and its endeavours to hold the state to account and fight for the human rights of all in the Philippines.

‘Early in life I had noticed that no event is ever correctly reported in a newspaper’ by Jim Duffy

‘Early in life I had noticed that no event is ever correctly reported in a newspaper’

The words are George Orwell’s, but they could just as easily have been those of 22 year-old Cait Reilly. In the week of 9th January 2012, Cait filed judicial review proceedings challenging the sort of State approach to maximising employment that Orwell prophesised. Her stand against what she argues to be an unfair, unpaid compulsory labour scheme seemed all the braver by the time The Daily Mail had finished with her. For them, this was a young, middle-class upstart who considered herself too good for Poundland.

The reality is much different. Cait is one of a quarter of a million unemployed people who will, by the end of the year, have found themselves on the end of the Coalition’s drive to ‘Get Britain Working’ and required to carry out between two weeks and six months of unpaid work under one of a plethora of complex schemes elaborated administratively and without Parliamentary scrutiny.

Cait graduated from the University of Birmingham in July 2010 intent on forging a career in museums. In the meantime, she claimed Jobseeker’s Allowance (JSA), sought paid work and was eventually able through the now-defunct ‘Future Jobs Fund’ to obtain valuable work experience at The Pen Room, a Birmingham museum. When her six-month paid placement ended, Cait decided to continue on a voluntary basis and once again claimed JSA while she looked for paid work. She is conscious of the need for extensive work experience in her chosen field.

In October 2011, her Jobcentre Plus adviser informed her of an ‘opportunity’ to attend an open day at which retail jobs would be available. She attended having been told that it could lead to a week’s training followed by a guaranteed job interview. When she discovered at the open day that what was on offer involved six weeks of training, Cait decided that this would take her away from her important voluntary work for too long. Her adviser’s tone changed, and what was previously described as an opportunity had suddenly hardened into a ‘mandatory’ requirement. If Cait failed to attend, her JSA would be reduced or withdrawn.

Cait then spent a week in a classroom being told by a training company how to dress, greet people and become more employable. There then followed two weeks at Poundland where no training or direction was offered and, crucially, no pay. Cait, who already has retail experience, was simply told to sweep floors and to stack shelves. Neither the ‘guaranteed’ job interview or the promised City & Guilds retail certificate ever materialised. Meanwhile, many supermarket employees apparently found in the run-up to Christmas that overtime work was suddenly hard to come by as a result of an influx of unpaid jobseekers.

It was not until Cait instructed us to bring a legal action that she found that she had been involved in a ‘sector-based work academy’, as opposed to ‘work experience’, or the ‘work programme’, or a ‘Mandatory Work Activity Scheme’, or the ‘Community Action Programme’ (CAP). She then realised she was perhaps one of the lucky ones – Public Interest Lawyers acts for another individual who has been required to undertake a full six months’ unpaid work under the CAP.

With youth unemployment figures at their highest level in 17 years, the Government faces a monumental challenge in getting people back to work. In addressing that crisis, it has chosen to import the same model of ‘Workfare’ attempted previously in the United States. Before setting up the array of schemes that Public Interest Lawyers is now challenging, the Department for Work and Pensions commissioned expert research that examined Workfare in the USA, Canada and Australia. Two of its main conclusions ought to have put the brakes on the political temptation to get the proles working, pay or no pay:

‘There is little evidence that workfare increases the likelihood of finding work. It can even reduce employment chances by limiting the time available for job search and by failing to provide the skills and experience valued by employers’; and ‘Workfare is least effective in getting people into jobs in weak labour markets where unemployment is high.’

Yet, the Secretary of State for Work and Pensions has created the UK’s own Workfare programme in the weakest labour market since 1996, without the required prescription of what the schemes entail or those to whom they apply, either within the Regulations or any published policy. As such, he has arguably exceeded his powers under the Jobseekers Act 1995, granting near omnipotence to the Jobcentre Plus adviser, who is henceforth empowered to determine what is good for the Jobseeker, even if it means what is arguably ‘forced or compulsory labour’ under the European Convention on Human Rights.

Notwithstanding the lack of clear criteria or guidance, what we do know is that these schemes are not for the maligned ‘somethingfor- nothing’ generation of unemployed not complying with their jobseeking conditions – the DWP is clear that such individuals must continue to receive the appropriate sanction of JSA withdrawal and are ineligible for these schemes. Yet, no one seems to have told the Employment Minister this: ‘It is a nonsense to suggest we should just be leaving them on benefits without making a real effort to find work.’

In fact, Cait would welcome paid work at Poundland or anywhere else that would afford her the luxury of living off more than £53 per week. Her experience, however, suggests that coercive schemes that require people to carry out work over which they have no choice and for which they are not remunerated is unlikely to bring an end to their unemployment.

Cait Reilly hopes to make the Government think again and work with young unemployed people, who perhaps ought to be seen as victims rather than culprits of the financial crisis. An approach that instead empowers and equips them, tailored to draw upon their skills and plug their skills gaps, might ensure that they not only enter the paid job market but stay there.

Jim Duffy is a Solicitor at Public Interest Lawyers

Socialist Lawyer No.60

60th Edition

This is the 60th edition of Socialist Lawyer. The Haldane Society remains as active as ever. On 30th November 2011, Haldane members expressed their solidarity with public sector workers striking in defence of their jobs, pensions and pay by marching alongside them. The ideologically driven Con-Dem coalition cuts agenda continues apace.

Readers of this magazine will be all too familiar with the current Government’s drive to cut the legal aid budget and the threats this poses to access to justice particularly for the most vulnerable members of society. As Lord Prescott complains of the lack of media coverage of the Legal Aid, Sentencing and Punishment of Offenders Bill, Connor Johnston of Young Legal Aid Lawyers casts a focused eye on the passage of the legal aid Bill through Parliament in the pages of this edition.

It was 12 months ago that The Haldane Society and Young Legal Aid Lawyers jointly organised ‘The Case for Legal Aid – an inquiry into public funding and access to justice’ which was held in Parliament in February 2011. Following on from this event a year down the line, The Haldane Society in partnership with Amnesty International and European Lawyers for Democracy & Human Rights (ELDH) have set their sights on organising an equally ambitious and no less important international conference on Defending Human Rights Defenders. The conference will take place at the Amnesty Human Rights Action Centre on 24th February 2012.

The aim of the conference is to draw together lawyers, trade unionists, journalists and activists from some of the world’s most challenging civil societies. In recent years Haldane members have been active participants in delegations to Turkey, Colombia, Palestine, and the Philippines among other locations. It is a great privilege to be able to draw together delegates from all these countries as well as Swaziland and the Caucasus region to share in their knowledge and experiences as well as an exchange of solidarity and expertise.

Given the upcoming conference, this edition of Socialist Lawyer is full of accounts of those working in defence of human rights. Marina Sergides looks back at the conclusions of the delegation to East Jerusalem in December 2010 where delegates encountered those standing up for their housing rights in Sheikh Jarrah. The delegation went on to deliver briefing sessions in Brussels and in Parliament in London on 18th October 2011. The review section covers the story of Brazilian human rights activist Marcelo Freixo whose actions have helped inspire a feature film directed by José Padilha. There is also a report on those fighting for land rights in Chiapas, Mexico which is accompanied by an interview with Abigail Escalante, an intrepid Mexican human rights lawyer.

Brian Currin is perhaps better known in Spain than on these shores for his instrumental role within the international team of facilitators who have sought a negotiated and democratic solution to the conflict in the Basque country. He brought his experience as a South African lawyer who had been involved in the creation of the Truth and Reconciliation Commission in his home country to his work as a facilitator for peace. He gives his account in this edition of the reasons behind the announcement of Eta’s ceasefire in October 2011.

It is a great pleasure to be able to print a piece of work by the artist Ruth Ewan in Socialist Lawyer. Ruth’s work places the accounts of activists, socialists, protesters and the socially marginalised in the public sphere. She has exhibited widely from the ICA in London to the Centro Andaluz de Arte Contemporáneo in Seville. One of Ruth’s recent pieces of artwork involved commissioning over 100 buskers, placed at different areas around London, to sing The Ballad of Accounting. The song was written in 1964 by the folk singer Ewan MacColl who held communist beliefs.

Also featured in the magazine is some artwork from the days of Salvador Allende’s government of Popular Unity in Chile before it was toppled by the military coup led by General Pinochet in 1973. The artwork displays some of the spirit of Allende’s government. It is also a reminder of the price that has been paid by many across the globe who strive to defend justice, equality and human rights.

Tim Potter, Editor of Socialist Lawyer Magazine.

Haiti cholera victims sue the United Nations by Bill Bowring

Mario Joseph, of Bureau des Avocats Internationaux (BAI) is Haiti’s best-known human rights defender and is the lead advocate in the cholera case against the UN. He is longstanding friend of Haldane, through his work for many years on the Bureau of the International Association of Democratic Lawyers (IADL), of which Haldane is a founding member. He is supported by Brian Concannon of the US-based Institute for Justice and Democracy in Haiti (IJDH), which in November 2011 filed a Petition for Relief with the UN’s Claims Unit in Haiti on behalf of more than 5,000 victims.

This unprecedented petition against the UN has its roots in centuries of anti colonial struggle. Haiti has a proud history of revolution, and was the scene of the first decisive overthrow of slavery. C. L. R. James wrote of the ‘Black Jacobins’, part of the French revolutionary movement of the 1780s. The Haitian Revolution of 1791 to 1794, led by Toussaint Louverture, culminated in the Haitian Constitution of 1801, which proclaimed ‘There cannot exist slaves [in Saint-Domingue], servitude is therein forever abolished. All men are born, live and die free and French.’ The Haitian revolution was crushed by France within two years and Toussaint died in captivity. However, from 1804 until US occupation in the 20th century, Haiti was an independent black state, posing a very significant threat to all colonial and slave regimes. In 1817 Simón Bolívar received soldiers, weapons and financial assistance from black Haiti.

In 1904 the US imperialist President Theodore Roosevelt established the ‘Roosevelt corollary’ to the 1823 Monroe doctrine, itself a response to the successful liberation struggles against Spain and Portugal. This asserted the right of the United States to intervene in Latin America in cases of ‘flagrant and chronic wrongdoing by a Latin American Nation’. On this basis, Haiti was occupied by the USA from 1915 to 1934; the departing US forces established the border between Haiti and the Dominican Republic, and laid the basis for the brutal hereditary dictatorship of the Duvaliers, ‘Papa Doc’ and ‘Bébé Doc’. Bébé fell from power in 1986.

The former priest and continuing threat to US hegemony, Jean-Bertrand Aristide, was elected President in 1990, ousted in a coup in 1991, and returned to power in 1994. He left power according to the Constitution at the end of his term in 1996 and was re-elected with 92 per cent of the vote in 2000. In 2004, in what was termed a ‘new coup-d’etat or new kidnapping’, US forces removed Aristide from Haiti, and engineered a compliant vote in the UN Security Council.

The United Nations Stabilization Mission in Haiti (MINUSTAH) has been there ever since. China Miéville (2008) has suggested that ‘… multilateral UN sanctioned imperialism is more of a threat to justice and emancipation than its unilateralist Rumsfeldian sibling’.

On 12th January 2010, Haiti was struck by a massive earthquake. The International Red Cross estimated that about three million people were affected. The Haitian Government reported that over 316,000 people had been identified as dead, an estimated 300,000 injured, and an estimated one million were made homeless. An outbreak of cholera began in October 2010. Five hundred and twenty five thousand Haitians contracted the disease and 7,025 have died since then.

MINUSTAH personnel deployed from Nepal brought the vibrio cholerae bacteria to Haiti, as has been established by numerous DNA tests and epidemiological studies, including those carried out by the UN itself. Although Nepal has endemic cholera, the UN did not test or treat the Nepalese peacekeepers for cholera prior to their deployment to Mirebalais. There they lived on a base with a ‘haphazard’ and ‘inadequate’ sewage system that dumped all waste into an unfenced pit. It was entirely foreseeable that human faeces containing cholera bacteria could contaminate a tributary that runs just metres from the base into the Artibonite River. Epidemiologists calculated from the record speed at which the outbreak had spread that a full cubic metre of cholera-ridden water was dumped into the Artibonite and moved downstream like a plume, infecting the Haitian families that drink, bathe, play and do
their laundry in the river.

In March 2011, Bill Clinton, by then UN Special Envoy to Haiti, acknowledged that MINUSTAH was the ‘proximate cause’ of the outbreak.

The Petition for Relief seeks:

a) the clean water and sanitation infrastructure necessary to control the epidemic;

b) compensation for victims who have lost family members or were ill from cholera; and

c) a public apology from the UN.

MINUSTAH’s operations in Haiti are governed by a Status of Forces Agreement (SOFA), which gives the UN and MINUSTAH broad immunities from civil or criminal actions in the Haitian courts. To balance this immunity, the SOFA requires the establishment of an independent Standing Claims Commission to hear claims and compensate victims who have been injured in the course of the UN’s operations. Despite this requirement, no Commission has been established during the seven years MINUSTAH has operated in Haiti. In fact, no Standing Claims Commission has ever been established in over 60 years of UN peacekeeping, even though most SOFAs provide for such commissions.

The UN has confirmed receipt of the petition, and its official response is that it is ‘studying’ it. Liability has so far been denied, despite the overwhelming evidence. However in a Security Council meeting on 8th March 2012, France acknowledged the damage cholera had done to Haitians and to the reputation of the UN, declaring, ‘We can regret this, but we cannot ignore it.’ Pakistan called for a UN apology, adding that the UN must do ‘whatever is necessary to make this situation right.’

Unofficially, the UN responded to the petition several months after it was filed, by creating a ‘coalition force’ including the World Health Organization, Pan-American Health Organization (PAHO), UNICEF, and others. These organisations have announced a ‘One Team Against Cholera’ initiative to eradicate cholera through investments in comprehensive water and sanitation.

Haldane is part of the international campaign of solidarity, with the UK Haiti Support Group, to demand that the UN admits its liability to the cholera victims of Haiti, and provides effective and speedy relief as demanded by the petition.

Bill Bowring is Haldane’s International Secretary

Another door shut? by Maryam Masalha

The government has axed the independent appeal panel on school exclusions. Maryam Masalha asks: has another door shut for children seeking justice?

The independent appeal panel, the body which currently hears challenges to school exclusions, is being axed. Provisions in the Education Act 2011 will see the appeal panel replaced with a ‘review panel,’ affecting the majority of schools in England. The move simultaneously strips the panel it of its power to reinstate pupils whom it finds to have been wrongly excluded from school, and is a further blow to a process which already shows worrying patterns of inequality.

At present, black children are statistically three times as likely to be excluded from school as white children. Children in care – many of them black – are eight times as likely to face exclusion. Children with special educational needs are also at much greater risk. The disproportionately high rate of exclusion among black pupils in schools, coupled with current political fervour for academies, shown to exclude twice as many pupils as Statefunded schools, raise serious concerns about the UK education system. Curtailing thepowers of the independent appeal panel, a channel through which young people can argue their case, will only worsen a system which is already reaching crisis point.

Independent appeal panels are currently made up of a panel of three to five members of the public who hear exclusion cases and have the power to reinstate pupils if they feel that the head teacher’s original decision was flawed. The new review panels will have much more limited powers, and will only be able to:

(a) uphold the decision of the responsible body,

(b) recommend that the responsible body reconsiders the matter, or

(c) if it considers that the decision of the responsible body was flawed when considered in the light of the principles applicable on an application for judicial review, quash the decision of the responsible body and direct the responsible body to reconsider the matter.’

The panel will no longer be able to direct reinstatement. At most, it can order the decision-making body to ‘reconsider the matter,’ but only where there has been a breach of judicial review principles.

This immediately raises two problems. First, it is likely that the process of reconsideration will simply provide an opportunity for schools to vindicate themselves, rather than genuinely re-evaluate the situation and reinstate a pupil where a poor decision was originally made. Second, thereference to ‘judicial review’ principles in the Act raises serious concerns that the panel, whose members are often totally without legal training, will not be able to decide on potentially complex public law issues relating to the fairness or otherwise of a permanent exclusion. The majority of young people appearing before the panel have no legal representation whatsoever, and are therefore very unlikely to invoke the public law principles which appear in the Act.

Exclusion appeals can be seen to mirror the legal system and its flaws in many respects; the process seems fair, but imbalances in resources and ability to navigate the system result in only a small portion of exclusions even reaching the appeal stage in the first place. Consequently, the stripping back of this quasilegal appeal process is based on the falseassumption that vast amounts of exclusion decisions are being undermined in a systematic and widespread ‘interference’ with a head teacher’s right to manage their school. Similar arguments are often used to justify the ongoing assault on legal protection for workers and individuals. Why, for example, should a former employee take their employer to court following a potentially unfair dismissal when this interferes with an employer’s right to manage their business? The question assumes that decisions made by people in power or authority are always correct and should never be challenged, despite the impact this may have on a individual’s life.
The independent appeal panel is not an alternative to a system which minimises exclusion by investing in schools and communities, but it is an opportunity for life-changing decisions to be scrutinised.

Gerry German is the director of the Communities Empowerment Network, an organisation which advocates on behalf of children who have been excluded from mainstream education. He is concerned about the use of permanent exclusion in schools, and thinks that more must be done to challenge the current regime. ‘I would like to see the Equality and Human Rights Commission undertaking selective casework and formal investigations aimed at exposing individual and institutional discrimination,’ he said. ‘Law enforcement is the key to bringing about change.’

Exclusion from school can be the catalyst for a host of further problems, from poor employment prospects to the breakdown of relationships with family and friends and involvement in criminal activity. The changes to the appeal panel do nothing to address the underlying causes of school exclusion. They may possibly lead to further injustices occurring in a system which is already plagued by inequality. The long term consequences of these decisions remain to be seen.

Since the time of this article being written, Gerry German has sadly passed away.

Maryam Masalha has worked as a volunteer for the Communities Empowerment Network, an advocacy charity which assists children and young people who have been excluded from mainstream education.

Socialist Lawer No.61 Editorial

Since the last issue, The Haldane Society has organised one of its most successfulconferences in its history: Defending Human Rights Defenders held jointly with Amnesty International and European Lawyers for Democracy and Human Rights. 150 people heard from human rights defenders from Belarus, Chechnya, Dagestan, Colombia, Palestine, the Philippines and Turkey. This issue contains a short report and pictures can be viewed on our website. A longer report will be available in the autumn.

Our comrades from overseas are an inspiration to us. Lawyers, trade unionists, journalists and even judges put their lives at risk by standing up for human rights. We were sad that Aleh Volchek, a lawyer in Belarus, was unable to join us because he had been detained a month before the conference and his passport had been confiscated. In the Philippines, the National Union of Peoples' Lawyers is challenging impunity by bringing a private prosecution against retired Army Maj. Gen.Jovito Palparan, accusing him of complicity in disappearances. The retired General is evading the court process. In Turkey, lawyers representing Kurdish or left-wing prisoners are frequently arrested. Perhaps the most striking observation was from the Palestinian comrades: since they came from East Jerusalem, Ramallah and Gaza, our invitation to visit London meant that the three of them could meet each other. In Palestine, Israel prevents travel between those areas. In Colombia, several leading members of the National Movement for the Victims of State Crimes (MOVICE) have been detained by the State, and, when they eventually face a trial, are at risk of false accusations.

We could only invite representatives from a few countries and are conscious that human rights defenders are at risk in many countries. In this issue, Brian Richardson describes political persecution in Zimbabwe: the prosecution of members of the Movement for Democratic Change.

The Haldane Society was pleased to provide a platform to bring some of those well-known and less well-known struggles together. We are committed to providing practical solidarity to our comrades, with calls for urgent action, statements in support and denunciations of repressive measures. We will work towards holding future conferences and facilitating electronic networks and communication. The issue of impunity was a recurrent theme: how to hold governments, and corporations, responsible for their crimes by due process of law.

The passing of the Legal Aid Sentencing and Punishment of Offenders Act 2012, despite the record number of Government defeats in the House of Lords, means that the changes to legal aid come into force next April. The lobbying campaign against LASPO was one of the most impressive and effective I have ever seen and, crucially, turned the issue from lawyers' interests, as claimed by the Government, to an issue about welfare rights and access to justice.

How can we now stop the decimation of legal aid, the NHS, welfare benefits and the other pillars of the welfare state? Clever lawyering is one way forward. There are complex provisions in the Act permitting the Lord Chancellor to increase the scope of legal aid. But our interests, and those of the public, are identical to publicsector workers. Legal aid lawyers are effectively public-sector workers employed in the private sector. As the minimum salary for trainee solicitors is outrageously abolished, the profession will become more and more distant from the public we serve.

Mark Serwotka, General Secretary of the Public and Commercial Services Union (PCS), spoke with Christine Blower, General Secretary of the National Union of Teachers, and John Hendy QC at a meeting jointly organised with the Institute for Employment Rights. Mark is also interviewed in this magazine. He tells us that his members' fight to defend their pension rights is certainly an industrial dispute but it's also ‘clearly a political dispute’. We will be joining the TUC and trade unions on their march for ‘A future that works’ on 20th October 2012. Watch out for The Haldane Society banner.

We are very sad to report the death of Lord Bill Wedderburn, pre-eminent labour and commercial lawyer of his generation and a committed Vice-President of The HaldaneSociety. His life will be remembered at a memorial service on Tuesday 3rd July 2012, 6pm at the London School of Economics and the Haldane Society will be in attendance. We send our condolences to his family and comrades.

Liz Davies, chair of the Haldane Society of Socialist Lawyers

1st October 2012: Public Meeting: Future of Legal Advice Services

Access to Justice and other supporting organisations (including the Haldane Society of Socialist Lawyers) invite you to a Public Meeting on the future of Legal Advice Services, taking place on 1st October 2012 in Manchester.