CLIMATE CHANGE - Squarespace · India and climate change, ... ([email protected]) Membership...

SocialistLawyer Magazine of the Haldane Society of Socialist Lawyers � Number 54 � March 2010 £2.50

CLIMATECHANGE INTHECOURTROOM

LAWYERS:HAVE WETHE TOOLSTO HELPSAVE THEPLANET?

2 n Socialist Lawyer l March 2010

Number54 March 2010 ISSN09543635

News & comment ................................................................................4with Yessika Hoyos Morales, Akmal Shaikh, Tzipi Livni and Binyam Mohamed

Regime change? ..................................................................................12Chris Loxton on the unravelling of the Government’s anti-terrorism legislation

Throttled....................................................................................................................14Keith Ewing on the legal and industrial battle between BA and Unite

Brazil’s Indians win legal battle......................16But, as Ana Naomi de Sousa argues, the Court decision is not all good news

A fair trial? ............................................................................................................18Brian Richardson on how the new Supreme Court is leaving defendants in the dark

Climate Change in the Courtroom ..........20Our special report with Richard Harvey, James Thornton and Polly Higgins

War crimes trial........................................................................................34Clark Kingsley asks if human rights are in the balance in Sierra Leone

Reviews ......................................................................................................................38India and climate change, and films on Venezuela and ‘The Age of Stupid’

Editor: Kat Craig Assisted by: Liz Davies,Declan Owens, Tim Potter, Joe WilliamsMany thanks to all our othercontributors, readers andmembers who have helpedwith this issue.

Contents

The Haldane Society was founded in 1930. It provides a forum for the discussion andanalysis of law and the legal system, bothnationally and internationally, from a socialistperspective. It holds frequent public meetingsand conducts educational programmes.The Haldane Society is independent of anypolitical party. Membership comprises lawyers,academics, students and legal workers as wellas trade union and labour movement affiliates.President: Michael Mansfield QCVice Presidents:Kader Asmal, Louise Christian, Tony Gifford QC,Tess Gill, John Hendy, Helena Kennedy QC,Imran Khan, Kate Markus, Gareth Peirce,Michael Seifert, David Turner-Samuels, FrancesWebber and Professor Lord Wedderburn QC.Chair: Liz Davies ([email protected])Vice-Chairs: Kat Craig ([email protected]) and Anna Morris([email protected])Secretary: Chris Loxton([email protected])Socialist Lawyer Editor: Tim Potter([email protected])Treasurer: Declan Owens([email protected])Membership Secretary:Dave Renton ([email protected])International Secretary: Bill Bowring([email protected])Executive Committee: Camille Warren,Catrin Lewis, Dale Brook, Hannah Rought-Brooks, John Hobson, Richard Harvey, StephenMarsh, Azam Zia, Marcus Joyce, RebekahWilson, Rheian Davies, Margaret Gordon, MikeGould, Owen Greenhall, Carlos Orjuela, RiponRay, Kezia Tobin, Marcela Navarette, BrianRichardson, Russell Fraser, Marina Sergides,Simon Behrman, Dirghayu Patel, Sophie Khan,Majida Bashir, Yoshihiro Bartlett-Imadegawa,Deborah Smith, Joanna Gilmore, Robert Atkins,Rathy Alkgaratnam and Martha Jean Baker.

Haldane Society PO Box 57055London EC1P 1AFWebsite: www.haldane.org

Pict

ure:

Jes

s H

urd

/ rep

ortd

igita

l.co.

uk

Printed by:The Russell Press

fromthechair

and tragedies of environmental law cases: from class actions againsttobacco companies to record their role in promoting lung cancer,removing the tetraethyl component of petrol, to recent litigation broughtby indigenous people against multi-nationals’ incursions onto theirlands, and against the governments who are frequently hand-in-glovewith those multi-nationals. As Richard notes, the record is a mixed one.The example of Shell in Nigeria is instructive: despite a robustjudgement against them, Shell has avoided drawing any real schemesto avoid environmental damage.

A real problem in environmental litigation is its expense. Conditionalfee agreements may have enabled solicitors to represent claimants,but provide no protection against the risk of paying the other side’scosts. If you’re litigating against Shell, these will be huge. Thetraditional rule that the loser pays may be fine in disputes where thereis equality between the parties, but environmental cases pit Davidagainst Goliath. Goliath has the resources to spin out litigation, to takespurious points, to overwhelm the Court with expensive expertevidence, and generally to throw money at the litigation. The Jacksonreport fails to grapple with this problem, as James Thornton sets out.

Finally there are criminal cases, initiated by the state againstenvironmental activists. In Britain, we remain cheered by theKingsnorth Six result, when the Court heard expert evidence that led itto its conclusion that the Defendants’ actions (trying to paint ‘Gordon’down the side of a power plant chimney) were motivated by self-defence and the urgency of preventing climate change. We wish ourcomrades from Greenpeace Japan the best of luck: in a travesty, theirattempts to expose the illegal sale of whale meat have resulted in theactivists themselves being charged with its theft.

The Haldane Society is well aware that lawyers elsewhere in theworld face far worse threats than the attacks of legal aid – importantthough the campaign to Save Legal Aid is (for more details see LauraJanes’s Young Legal Aid Lawyers column). We hosted a talk byYessika Hoyos Morales, a Colombian human rights lawyer, and EdreOlalai, from the National Union of Peoples’ Lawyers in the Philippines.Both of them have had colleagues, friends or family membersmurdered by the state and lawyers can be considered legitimatetargets, along with trade union activists, political activists and anyoneelse fighting for their own rights, and those of others. We will maintainthese links by sending an international delegation to Colombia toreport further on human rights’ abuses, and by participating in electionmonitoring in the Philippines in May.

Finally, the British Government’s assaults on civil liberties, in thename of the war of terror, have taken a beating in the Courts recently.Control orders can no longer be based entirely on secret evidence,damages claims brought by those subject to control orders have notbeen ruled out and secondary legislation freezing the assets of so-called suspected terrorists (who are not given any opportunity tochallenge that ruling) has been declared contrary to the Human RightsAct. In addition, the Court of Appeal has released the earlier finding bythe High Court that British security services knew about the torture ofBinyam Mohamed and colluded in it.� Liz Davies, chair of the Haldane Society of SocialistLawyers [email protected]

The international failure to reach any meaningfulagreement at Copenhagen 2010 was a crime against theplanet, its current occupants and future generations. Oilcompanies will have been celebrating, whilst the rest ofus bemoan the failures of our leaders to tackle the mostserious crisis humanity has ever faced. Nothing will be

achieved from a non-binding document to which no country hassigned up.

At times of crisis, most lawyers’ thoughts turn to legislation andlitigation. Can the tools of our trade help to save the planet? Legislationmost certainly would. Since climate change is a global threat, ourresponse also has to be global. A Universal Declaration of PlanetaryRights, as called for by Polly Higgins, could enshrine the right not to bepolluted. Companies will howl, and rely on greenwashed adverts toconvince the rest of us that they care about the environment. But thecomparison with the slave trade is instructive. Slave-traders resistedabolition. They argued that Britain’s economic prosperity depended on

it, and proposed voluntary capping of the numbers of slaves tobe imported. But the world did not stop turning when theslave trade was abolished.

The slavery example is a good one, but it also showsthe limits of legislation. It took decades for the institutionof slavery to be declared illegal by European and NorthAmerican governments. Freed slaves continued tosuffer the institutional effect of slavery: racism,economic exploitation and assaults on their civilrights. Two hundred years after the abolition of the

slave trade, there is still someeffective slavery in the richNorth: trafficked sex-workers,domestic workers, etc.

The crisis of climatechange is so immediate that

we cannot wait two hundredyears for attitudes to change.

Can litigation help to preventclimate change? We’re pleasedto report on some successfullitigation – indigenous groups inBrazil fought as far as the

Supreme Court for the rights totheir ancestral land againstlarge-scale rice growers and

won. But their victory isclouded by reservations

allowing for governmentand defence industry

needs to takeprecedence. RichardHarvey surveys

some of thesuccess

stories Pict

ure:

Jes

s H

urd

/ rep

ortd

igita

l.co.

uk

Courtingdisasterunless weact now

Socialist Lawyer�March 2010 �3

4� Socialist Lawyer�March 2010

News&Comment

Pict

ure:

Jes

s H

urd

/ rep

ortd

igita

l.co.

uk

Getting downto business

The Haldane Society’sAGM took place on19th November, afterour President, Mike

Mansfield QC, had spoken abouthis book Memoirs of a RadicalLawyer (see review in SL 53).Mike’s political speech rangedfrom the Prevent Agenda (theHome Office encouraging spies ineducational institutions), NewLabour’s assault on civil libertieswith a warning not to trust theTories and his belief that ordinarypeople care about politics, butdon’t have any time for themainstream political parties.

We held a short and business-like AGM immediatelyafterwards. We elected officersand a much bigger executivecommittee (see inside front pagefor details). We passed threemotions: agreeing to work withand affiliate to Unite AgainstFascism, in solidarity with humanrights defenders in Colombia andthe Philippines, and re-affirmingour commitment to campaign forthe retention of publicly fundedlegal services.

We’re undertaking somevery practical activities as aresult of those motions. Wenow have a network ofvolunteer legal observers whoprovide observation andmonitoring of the policing ofdemonstrations. We makethat service availablegenerally to progressivedemonstrations, but withthe emergence of the BNPand EDL, we are working

particularly closely with UniteAgainst Fascism to ensure thatanti-fascist demonstrators arenot scapegoated or targeted bythe police is a priority. AnyHaldane member who wants tovolunteer as a legal observer cancontact Kezia at [email protected].

We plan an internationaldelegation of lawyers and otherhuman rights activists toColombia in autumn/winter2010, in association with Justicefor Colombia, and we will alsotravel to Philippines to assist inmonitoring its general election inMay 2010. Shortly after we hadpassed our motion, some of ourcomrades in the National Unionof Peoples’ Lawyers in thePhilippines were brutallymurdered, along with electioncampaigners and journalists.Haldane members interested inparticipating in either delegationshould contact Liz Davies, KatCraig or Anna Morris (emailaddresses on inside front page).�Liz Davies

Defending the humanrights defenders

The Haldane Societywelcomed a healthycrowd on 10thDecember for what was

its final lecture of the year. AnnaMorris introduced the guests,Yessika Hoyos Morales, aColombian human rights lawyerworking for CorporaciónColectivo de Abogados JoseAlvear Restrepo (CCAJAR) andAttorney Edre Olalia, the deputygeneral secretary for internationalsolidarity work of the NationalUnion of Philippine Lawyers.

Some 10,000 miles separatesthe industrial streets of Medellinin Colombia’s Aburrá valley tothe shores of Manila Bay and thedensely populated capital of thePhilippines, Manila. Yet, thislecture demonstrated so muchthat draws the two countriesclose together. To be a humanrights defender in Quezon City orQuibdó is to be an enemy of thestate. Our guests’ description ofthe challenges they faced were, ofcourse, unique and localised inmany respects but much of thelanguage was identical:surveillance, threats, violence,raids, ransackings, and extra-judicial murder.

Yessika Hoyos Morles wasfirst to speak. Addressing thoseassembled through herinterpreter, Liam Craig-Best ofJustice for Colombia, shedescribed the declining status ofhuman rights in her country.The situation, she told us, had

worsened since the election ofPresident Alvaro Uribe in 2002.Lawyers who oppose his reformsare deemed legitimate targets ofthe Government’s counter-narcotics programme. She spokeof the Justice and Peace Lawwhich is promoted as a protectorof those most at risk fromcriminal elements in Colombiabut in reality protects only thosewho visit violence on oppositionand human rights organisations.

Yessika and others have calledfor an investigation into the workof paramilitaries but are thwartedby a congress which is intimatelyconnected to those she wantsbrought to justice.

Yessika represents victims ofthe notorious DAS – in English,the Administrative Department ofSecurity – and Edre Olalia beganby reminding the audience of theMaguindanao Massacre whichtook place on 23rd November2009, perpetrated againstopposition activists who were ontheir way to file the candidacy ofa prospective challenger to theincumbent mayor’s son. It soonbecame abundantly plain that thetactics so favoured by theColombian Government are alsoemployed with impunity by theauthorities in the Philippines.Lawyers who help those mostdisenfranchised in the Philippines– farmers and workers, urbanpoor, students, women, politicalactivists are labelled ascommunists, threatened and

19:The Governmentannounces it is dropping itsproposals to retain the DNAprofiles of innocent people onthe national database. ThePolicing and Crime Bill iscurrently going throughParliament.

16:The High Court rules thatthe Foreign Secretary, DavidMiliband, acted in a way thatwas harmful to the rule of law bysuppressing evidence aboutwhat the Government knew ofthe illegal treatment of BinyamMohamed, a British residentwho was held in a secret prisonin Pakistan.

17:A Government programme,‘Preventing Violent Extremism’,aimed at preventing Muslims frombeing lured into violent extremism,is being used to gather intelligenceabout innocent people who are notsuspected of involvement interrorism. Liberty brands it anaffront to civil liberties.

17:Figures from ScotlandYard reveal that the numberof reported homophobiccrimes in London hasincreased by nearly a fifthover the past year – from1,008 to 1,192.

23: Police recordedquarterly crime figures forEngland and Wales showa 4% fall in crime andmurders involving knivesare down 35%, from 71 to46%. The largest fallswere a 12% drop in carcrime and a 10% fall infraud and forgery.

October

Socialist Lawyer � March 2010 � 5

News&Comment

to protect victims of extra-judicial killings. The military canbe restrained from approachingcertain individuals and familiescan apply to inspect any militarybuildings. However, theGovernment has abused it,leading to the perverse sight ofthe military applying for ordersagainst victims.

Edre presented a slide show

which read like a grim roll callof death. Featured were thenames and biographies of anumber of his comrades whohad been assassinated in theirfight to defend human rights.Others had come close but hadlived to continue their struggle,including Romeo T Capulong, a prominent and respectedhuman rights lawyer who hadsurvived four assassinationattempts. Edre’s final slidedepicted himself as he, withremarkable calm, describedhow he was subjected tosurveillance and falseaccusations of involvement incrime.

Foremost in the minds ofHaldane members was how wecould help our comrades in theirendeavours to raise awareness oftheir situation. Yessika concededit was difficult but asked that wecampaign against the free trade

agreement currently tabledbetween the European Unionand Colombia. It is, in Yessika’sown words, more important tothe Colombian Governmentthan their own people.

Edre Olalia simply asked thatwe tell others what he told us.Afterwards he presented theHaldane with DVD filmsdocumenting the work andbattles of the National Union ofPhilippine Lawyers and askedthat we make copies anddistribute them to others.

Richard Harvey reminded usthat we were assembled on theeve of Human Rights Defenders’Day and how disquieting it wasto note the similarities betweenthe treatment of our Colombianand Filipino comrades and thefates which befell Pat Finucaneand Rosemary Nelson muchcloser to home. �Russell Fraser

Pict

ure:

Rip

on R

ay The Haldane Society’sChristmas party thisyear was held jointlywith Justice for

Colombia as well as ourtraditional party-partners, YoungLegal Aid Lawyers on 11thDecember. As well as the usualfood, drink, music, dancing andrelentless fund-raising, we wereprivileged to hear from YessikaHoyos Morales, human rightslawyer from Colombia. Yessikahad spoken with Edre Olalia fromthe Philippines the day before atthe College of Law (see left).

Before and after Yessika’sspeech, there was plenty of jollity.

But we all stopped in our tracksas we heard Yessika describemurders of trade unionists,journalists and lawyers withoutany accountability. The HaldaneSociety works with Justice forColombia to provide solidarityfor our comrades defendinghuman rights who are alwaysliving with threats to them andtheir families. We participate inJustice for Colombia’s regularfact-finding delegations toColombia. We hope that Yessika’spresence will have inspired somelawyers and law students in theUK to help with practicalsolidarity. �

Yule never walk alone

attacked. Most chillingly of all,many have their names placed onthe Order of Battle, a listcompiled by the Government ofits perceived enemies, those whoare most at threat of extra-judicial killings. And as Colombiamisuses its Justice and Peace Lawso too does the PhilippinesGovernment exploit legislation.The ‘Writ of Amparo’ is intended

Colombian human rights lawyer Yessika Hoyos Morales

31: A top Scotland Yardofficer, Commander MoirStewart, who waspersonally criticised forfailings in the Jean Charlesde Menezes shooting, hasbeen appointed to theleadership of theIndependent PoliceComplaints Commission.

26: The police arekeeping the details ofthousands of activistswho attend politicalmeetings and protests,and storing their data ona network of nationwideintelligence databaseseven if they have notcommitted a crime.

November6:A parliamentarycommittee drawsup a new criminaloffence to outlawthe practice ofextraordinaryrendition.

5:Prospective judges will nolonger have to declare if theyare Freemasons. Jack Straw,Justice Secretary, said thatthere was no evidence ofimpropriety or malpracticeas a result of a judge being aFreemason –so it would be‘disproportionate’ to continuewith the ban.

6:The family of IanTomlinson, the man whodied at the G20 protestafter being attacked bypolice, has been told thatit would be ‘inappropriate’for an official watchdog toconsider whether policeofficers were involved in acover-up.

7:Figures reveal that theMetropolitan Police’sinfamous riot squad –the Territorial SupportGroup (TSG) – receivedmore than 5,000complaints in the lastfour years. But only nine(less than 0.18 per cent)were upheld!

6 � Socialist Lawyer � March 2010

News&Comment

Brown lets Israeli warcriminal off the hook

In December, WestminsterMagistrates’ Court issued anarrest warrant for Israel’sformer foreign minister and

current opposition leader TzipiLivni. The arrest warrant wasmade in relation to war crimescommitted during the Gazaoffensive in December 2008which killed about 1,400Palestinians, mostly civilians.

The warrant was withdrawnonce news emerged that Livnihad cancelled her visit to London,where she was due to attend aconference.

Following these events,members of theGovernment openlycriticised the issuing ofthis arrest warrant, withGordon Brown going sofar as to telephone Livnito state that he wascompletely opposed to theissuing of the warrant.David Miliband, theForeign Secretary alsotelephoned Livni and thecurrent Foreign Secretary,Avigdor Lieberman, to apologise.

These acts showed a cleardisregard for the separation ofpowers and there have beenstrong calls for the Governmentto stay out of individual cases andlegal decisions.

There are also suggestions thatthe UK may consider changing itslaws to curb any future attempt touse universal jurisdiction to arrestsuspected war criminals. One of

the suggestions is that theAttorney General will be asked toapprove warrants beforesuspected war criminals can bearrested in the future. This willeffectively provide the Attorney-General with a veto on subsequentwar crimes prosecutions.

Various human rights lawyersin the UK have commented onthe dangers of such changes tothe law. The UK has obligationsunder international treaties toseek out and prosecute warcriminals, wherever and

whoever they are, if there is goodprima facie evidence of anoffence. For Livni’s arrestwarrant to be issued, a magistratemust have been satisfied thatthere was a case to answer andthat there was reasonablesuspicion that an offence hadbeen committed.

Attempts to change the law inthe way suggested would pavethe way for selective applicationof the law to prevent the potentialembarrassment of theGovernment. The fact thatGovernment ministers haveopposed the issuing of this arrestwarrant so vocally does not bodewell for any future attempts touse universal jurisdiction for warcrimes or crimes againsthumanity if the law is changed.Baroness Scotland, the currentAttorney General, has alreadyadded her voice to calls forchanges in the law requiring herconsent.

It was a former AttorneyGeneral Lord Goldsmith, alongwith Tony Blair, who put thebrakes on the Serious FraudOffice investigations into BAESystems and allegations ofbribery. If the law changes, andfuture arrests are deemed by theAttorney General not to be in thepublic interest, it will make itimpossible to bring a caseinvolving war crimes by invokinguniversal jurisdiction. These arecases often involving injured,tortured or bereaved people whohave been unable to obtainredress in their domestic courts.They will now also be likely to

be denied remedies underinternational law in theUK. �Marcela Navarrete 29th January: Tony Blair gave evidence to

November December14:The EuropeanCommission says that parts ofUK law, including provisions onsexual orientation anddisability, are inadequate inprotecting people fromdiscrimination at work. It couldrefer the situation to theEuropean Court of Justice.

24: Home Office figuresshow a sharp drop in thepolice use of counter-terrorstop and search powers,following a public outcryover their discriminatoryuse, but the statistics showthat only a tiny proportion,0.6%, of the searches ledto an arrest.

11: The Home Officeconfirms that they want tosee the DNA profiles ofinnocent people kept on thenational database for sixyears. The nationaldatabase is already thelargest in the world withprofiles of 4.5 million peoplealready recorded.

10:Keir Starmer, DPP,considers whether to bringcharges against TerritorialSupport Group officers involvedin an assault on Babar Ahmedduring his arrest at his home inTooting. The Met has alreadypaid £60,000 in damages but aMet investigation concluded noofficer should be disciplined.

18:The Chief Inspector ofPrisons, Anne Owers, says that abuilding that houses 72 prisonersat Portland young offendersinstitution is ‘insanitary, unfit foruse and should be closed’. Morethan 40% of Portland’s populationcome from black or minorityethnic backgrounds but almostnone of the staff do.

Where is thejustice in warcriminalsbeing let free?


News&Comment

Pict

ure:

Jes

s H

urd

/ rep

ortd

igita

l.co.

uk

No reprievefor Akmal

The New Year began forReprieve in the shadowof the tragic executionof Akmal Shaikh in

China on 29th December 2009.Having only been informed aboutAkmal’s execution date on 21stDecember, over the next eightdays we did all we could to savehis life. We were appalled that inthe end no mercy was shown to aman who was clearly mentally ill.

As sometimes happens whenthe hours are ticking down toexecution, the media coverageprovoked impartial witnesses – inthis case, six – to come forwardat the last minute, each concernedthat an injustice was about totake place. We passed statementsfrom each of them onto theChinese authorities, all of whichfell on deaf ears.

Members of the Shaikh familyjoined a respectful vigil outsidethe Chinese Embassy as the hourscounted down towardsexecution. They continued to begthe Chinese authorities to showmercy by all avenues possible.This, too, elicited no compassion.

The last minute failure toallow a proper medicalevaluation followed months ofintransigence by the Chineseauthorities. Reprieve hadconsistently asked for anevaluation by a local expert andflew out an independent expert,whom we had been told wouldbe allowed to visit Akmal, butwho was later refused access.Repeated requests since that timewent ignored.

The failure to allow the mostbasic due process in the face ofoverwhelming and unrebutted evi-dence of Akmal’s mental illness isan appalling blot on China’srecord. We are deeply disap-pointed, but also enormouslygrateful for all the support frompeople that flowed in for Akmal.Akmal’s family is now requestinga coroner’s inquest into the cir-cumstances of his death. To findout more and sign a petition tosupport their request, see http://petitions.number10.gov.uk/Inquest4Akmal.

Akmal’s execution hasstrengthened our determination tokeep up the fight for our clients, aswell as the fight to attain the even-tual worldwide abolition of thedeath penalty. Akmal Shaikh’sdeath has also exposed seriousflaws in the Chinese legal system,which cannot be ignored. Howmany vulnerable people like Ak-mal are wrongfully killed byChina every day?

We support the Shaikh family’srequest for answers about Akmal’streatment in prison, in the courtsand at the time of his death. Thecontinued stonewalling by theChinese authorities is offensive,inhumane and disrespectful.�Sally Rowen Legal Director(Death Penalty), Reprieve the Chilcot inquiry on Iraq. He said he had “no regrets...”

Akmal Shaikh

15:Prosecutors are reviewing thethree-decade-old case into thedeath of Blair Peach, an anti-fascist campaigner widelybelieved to have been killed by apolice officer. The CPS has beengiven a copy of a secret reportinto the death of Peach andlawyers are to review it and adviseon further investigations.

30: Mordechai Vanunu, whoserved 18 years in prison afterrevealing Israel’s secretnuclear programme, has beenyet again placed under housearrest pending criminalcharges for allegedlybreaching the terms of hisrelease in 2004, whichincludes a ban on foreigners.

22:Evidence emergesthat the British Armysubjected prisoners inNorthern Ireland towaterboarding duringinterrogations in the1970s, after one of thealleged victims launchedan appeal against hisconviction for murder.

January4:Warnings emerge that new plansto slash the legal aid bill will deprivethe public of a crucial way ofchallenging Government policy in thecourts. The challenge to prosecutionsfor assisted suicide and the overhaulof the DNA database, which went tothe European Court of Human Rights,are among those that could getcaught out.

11:Five Crown Courts inEngland and Wales begincharging people their ownlegal fees. Lawyers say thatmeans testing in the courtscould affect one in fourdefendants in seriouscriminal cases and havemounted a legal challengeagainst the scheme.


News&CommentPi

ctur

es: J

ess

Hur

d / r

epor

tdig

ital.c

o.uk

EAT saw no reason whypolitical beliefs should not beprotected.

His beliefs were based onscience, the employer said,which was always opposed toreligion. The EAT saw no reasonwhy beliefs could not bescientific in origin.

If a person who believed inclimate change was protected,the employer scoffed, a personwho did not believe in climatechange would also have to beprotected. The EAT had nodifficulty agreeing that theymight well be.

Although you might havethought that the global warmingsceptics at the Daily Telegraphand in the tabloids would havebeen pleased that they too wouldnow be protected from detrimentat work, press comment focussedrather more predictably on therisk that claimants would bringclaims in future relating to evermore esoteric ideas. Indeed, inthe same month as Grainger’sappeal was heard against MrNicholson, a spiritualist inManchester succeeded with aTribunal claim against the police.

Yet the decision in Grainger vNicholson needs to be placed inthe right context. As of the endof March 2009, religion andbelief claims were running at therate of just 600 per year,compared to total EmploymentTribunal claims of around150,000 per year. Even afew more belief claims willnot still be very many.

Indeed, a decision of theCourt of Appeal inFebruary that indirectdiscrimination claims canonly succeed in religion andbelief cases where a whole

class of people aredisadvantaged (Eweida v BritishAirways Plc [2010] EWCA Civ80) is likely to have particularimpact on the ‘unusual belief’cases.

The best justification foroutlawing discrimination ongrounds of religion or belief isthat some numerous groups ofpeople in Britain – Muslimsand Hindus – are not protectedby laws outlawingdiscrimination on grounds ofrace; and there are nocompelling reasons why otherswho are protected from racediscrimination (for exampleSikhs and Jews) should betreated differently from them.And if people with a religionare protected, then sensibly somust be those without.

From this perspective, thedecision in Grainger vNicholson – far from makingthe law an ass – is in fact longoverdue.� David Renton

Of the six types ofdiscrimination claimsthat can be broughtbefore Employment

Tribunals, the ones with thelowest chances of success arethose where the act was allegedto have been done for reasons ofreligion or belief. On averageonly around one in seven of suchclaims are upheld.

Most religion or belief claimsare brought by Muslims, Sikhs,Hindus or Jews. Such claimantsare in the relatively easy positionthat at least their beliefs are well-recognised. Yet few enough ofthem succeed.

Even more difficult are caseswhich concern belief-systemswhich are not well-recognisedreligions. The employer will seeka Pre-Hearing Review andusually the case will be struckout.

Claimants who havesucceeded with what might betermed ‘atypical’ religion orbelief claims have included anon-Christian employed by aChristian employer (Nicholson vThe Aspire Trust), a pagan(Keeling v (1) Public InformationPillars Ltd, (2) Oakden and (3)Oakden), and an individualwrongly supposed by hisemployer to be Muslim (Mayet vHM Customs and Excise).

Other claimants who havefailed have included a member ofa racist political party (Baggs v

FDA Fudge), a patrioticAmerican wearing a ‘Stars andStripes’ badge on his jacket(Williams v South Central Ltd),and a person who had engagedin acts of charity of a vaguelyreligious origin (Devine v HomeOffice).

To the list of those who havesucceeded can now be added –following a decision of theEmployment Appeal Tribunal(EAT) in November – a personwho believes that we musturgently cut carbon emissions toavoid catastrophic climatechange (Grainger Plc & Ors v.Nicholson [2010] IRLR 4).

One matter which seems tohave influenced the EmploymentTribunal to decide in MrNicholson’s favour was that hisbeliefs affected how he lived hislife. Mr Nicholson said that heno longer travelled by airplane,he had eco-renovated his home,he tried to buy local produce andhad reduced his consumption ofmeat.

In a wide-ranging decision,the EAT agreed. Mr Nicholson’sbeliefs only concerned a smallpart of human activity, theemployer complained. Beliefscan be specific, the Tribunalfound, declaring that protectionwould be given to the other‘green’ beliefs of pacifism andvegetarianism.

Mr Nicholson’s views werepolitical, the employer said. The

12:The Islamist group Islam4UK and its ‘parent’organisation al-Muhajiroun are banned under newlegislation outlawing the ‘glorification’ of terrorism.The decision will have to be endorsed byParliament and will make it a criminal offencepunishable by a prison term of up to 10 years to bea member of either organisation or to attend oraddress their meetings.

12:Police admit that theyconducted illegal stop andsearches on 11-year-oldtwins and other activists at aclimate camp demonstrationat Kingsnorth power stationin Kent.

12:The first criminal trial without juryin more than 400 years begins afterlawyers’ legal challenges wereexhausted. Four men face trial over arobbery at Heathrow airport in 2004.The Court of Appeal examinedsecret evidence and ruled that ‘thedanger of jury tampering and thesubversion of th process of trial byjury is very significant’.

January

On the picket line:religion or belief?

18:The Chief Constable of Kent,Mike Fuller, is accused ofundermining the public’s right toprotest after documents revealed heurged the owner of Kingsnorthpower station to do more to disruptenvironmental demonstrators, andtold E.ON it was ‘grosslyinappropriate’ for taxpayers to payfor policing.


News&Comment

Seven Judges at theEuropean Court ofHuman Rights in Januaryconsidered that the

powers of authorisation andconfirmation, as well as those ofstop and search under sections 44and 45 of the Terrorism Act 2000Act, were neither sufficientlycircumscribed nor subject toadequate legal safeguards againstabuse and were in violation ofArticle 8 of the EuropeanConvention of Human Rights.

The case arose from the stop andsearch of both Kevin Gillian, astudent, and Pennie Quinton, ajournalist, when they attended aprotest against an Arms Fair beingheld at the Excel Centre in EastLondon. The AssistantCommissioner of the MetropolitanPolice had given an authorisationunder s 44(4) of the Act on 13thAugust 2003, which allowed thewhole of the Metropolitan PoliceDistrict to be designated a stop andsearch area for 28 days. There hadbeen a rolling programme ofsuccessive section 44 authorisationssince the Act came into force on 19thFebruary 2001. The authorisationallowed a police officer to stop andsearch any person or vehicle withoutthe need to demonstrate theexistence of any reasonablesuspicion.

The European Court of HumanRights held that the fact that the

decision to stop and searchwas based exclusively on apolice officer’s own hunchmeant that adequate legalsafeguards were not in placeto prevent an abuse of that

power and could therefore not be inaccordance with the law. The Courtwas struck by the evidence thatshowed the extent to which policeofficers resorted to the powers ofstop and search under section 44and found that there was a clearrisk of arbitrariness in grantingsuch a broad discretion to policeofficers. The judges drew specialattention to statistics showing thatblack and Asian people weredisproportionately affected by thepowers. They also considered thepublic nature of the searches, withthe discomfort of having personalinformation exposed to public view,

which might compound theseriousness of the interferencebecause of an element ofhumiliation and embarrassment.

The Home Secretary, AlanJohnson, voiced hisdisappointment with the judgment,stating in a short statement that‘pending the outcome of theappeal, the police will continue tohave these powers available tothem’, but it is unlikely that theappeal against the ruling will beupheld, and instead the judgmentwill force a welcome change in thelaw.�Sophie Khan

February

Stop and search ‘abused’

Judges at Isleworth CrownCourt have handed out‘deterrent’ sentences ofimprisonment to those

arrested at demonstrations againstIsrael’s attacks on Gaza. JoanneGilmore of Manchester University(and Haldane Executive member)noted that, of the 119 peoplearrested in January 2009, 78 werecharged with offences. Of that 78all but two were young Muslims; astatistic which in no way reflects themixture of people at the demos.

Lawyers for the defendants whohave been sentenced after pleadingguilty have questioned the startingpoint of two years imprisonmentfor those who attended thedemonstration with peaceful

intentions, but became involved inpublic disorder outside the IsraeliEmbassy. HHJ Dennis told thedefendants that the starting pointwould only be departed from inexceptional circumstances, forexample where someone has mentalor physical health problems.

The ‘guidelines’ used by thecourt meant that a universitystudent of good character was sentto prison for 12 months forthrowing a single bottle, which didnot cause any injury or damage toproperty. If the same student hadbeen arrested outside his studentunion for throwing the same bottle,he would probably be cautioned, orat most fined. For combining thatact with an expression of anger atgenocide in Gaza, he will bewrenched from his degree and livethe next year of his life as a prisoner.Is it any surprise that youngMuslims feel victimised by thepolice and the court system? �

Victimisingthe young

20:A new ‘premium service’ –costing £15,000 – aimed at thesuper-rich – avoids the delaysand humiliations that ordinarypeople have to suffer whenapplying for visas andnationality applications to theUK. The fees for migrantsapplying to bring elderly parentsfrom abroad are to double.

18: Mr Justice Silber givesHigh Court ruling that clearsthe way for compensation tobe paid to two unnamed ‘terror’suspects whose control orderswere quashed after a ‘secretevidence’ legal battle. Theprospect of damages beingpaid questions viability of thecontrol order regime.

8:Ministry of Justicecomplaints data shows thatprison officers are twice aslikely to be reported forracism than prisoners.Alleged racist incidentsacross prisons have risenby a quarter between 2006and 2008.

9:An inquiry, headed by civilrights lawyer Helena Kennedy,is launched to investigateallegations by the Equalitiesand Human Rights Commissionthat the police and immigrationservices may be illegallyignoring the human rights offoreign women who have beenforced into prostitution.

9:A report by the ParliamentaryOmbudsman finds that the UKBorder Agency’s failure tomanage its workload ispenalising individuals, drainingpublic funds and jeopardisingconfidence in the asylum andimmigration system.

News&Comment

Fighting for the real-life Avatars


On 18th February theHaldane Society hosteda lecture on ‘holdingmultinationals to

account through litigation’, atwhich the speakers were GordonBennett, barrister for SurvivalInternational, and Peter Frankental,from Amnesty International.

Gordon told us about the Courtstruggles of various indigenouspeoples being assisted by SurvivalInternational. He was counsel forthe Kalahari Bushmen, who hadtaken the Botswana Government tocourt after they had been displacedfrom their ancestral lands. They

had won the case, and some ofthem were able to return, but theyare still litigating for the right tohunt, fish and maintain theirsubsistence. He also spoke aboutthe indigenous community ofDongria Kondh in Orissa, India,whose experience is similar to thefictional Na’vi in James Cameron’sAvatar. They face displacementfrom their lands, which include animportant religious site for them,by the multinational Vedanta.Vedanta plans to mine bauxite andto expand an existing aluminarefinery. The local state is hand-in-glove with Vedanta.

Peter talked about Amnesty’scampaign for multi-nationalcompanies to respect human rightsand for human rights to be part ofany balance sheet or due diligenceanalysis. Internationalorganisations, such as the UN,OECD and the World Bank have,over the last decade, started toinclude human rights amongsttheir guidelines to companies,although often using the weakestpossible formulation. But policingeven those weak standards isremarkably difficult: themultinational company oftensubtracts the controversial workPeter Frankental

February

Three senior Court ofAppeal judges dismissedthe Government’sargument for secrecy

over the publication of sevenparagraphs summarising thetreatment of Binyam Mohamedwhen he was detained by the US([2010] EWCA Civ 65). Thejudges on 10th February decidedthat as the information hadalready been disclosed by the USCourts in a judgment de-classifiedlast month, the US-UK intelligencesharing relations would not bedamaged by the UK Courtspublishing the information andthat the ‘control principle’ shouldnot be applied in this case. TheGovernment will not be appealingthe judgment but it emerged thaton 8th February, JonathanSumption QC, representing DavidMiliband, had sent a secret letter

to the Appeal judges to persuadethem to amend their draftjudgement and remove thesweeping criticisms of MI5. Thisnews added to the criticism of theGovernment’s open and flagrantdisregard for the Public InterestImmunity system, which thejudges indicated was not to beused to hide embarrassinginformation from the public. Theyheld that the ultimate decision

whether to include the redactedparagraphs in the open version ofthe High Court judgment was amatter for judicial, not executive,determination. Lord Judge statedthat the paragraphs ‘vindicatedMr Mohamed’s assertion that theUK authorities had been involvedin and facilitated the ill treatmentand torture to which he wassubjected’. �Sophie Khan

The seven redacted paragraphs:1. It was reported that a new seriesof interviews was conducted by theUnited States authorities prior to17th May 2002 as part of a newstrategy designed by an expertinterviewer.2. It was reported that at somestage during that further interviewprocess by the United Statesauthorities, Binyam Mohamed(BM) had been intentionally

R v (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs

Pict

ures

: Jes

s H

urd

/ rep

ortd

igita

l.co.

uk

25:Advisory Panel on JudicialDiversity reports that a lack ofdiversity amongst judges isaffecting the experience of peoplewho use the courts and limitingjudicial perspectives on criticallegal issues. Chair of the report,Lady Neuberger, called forpositive action to draw minoritycandidates.

22: Justice Secretary Jack Strawannounces that the prison service’searly release scheme will end by10th April. There are 86,000 peoplein jails in England and Wales, butthe end of the scheme will addbetween 1,000 and 1,200 inmates

every day to an alreadyovercrowded prisonpopulation.

18:Government asks Israeliambassador to explain theuse of faked British passportsby a Mossad hit squad whomurdered a Hamas official inDubai. Some of the assassinsused fake identities stolenfrom six British people.Imagine if Iran had done thesame thing...

16:Children’s CommissionerSir Al Aynsley-Green writesdamning report on the Yarl’sWood immigration detentioncentre, saying children face‘extremely distressing’ arrestand transportation proceduresand are subjected toprolonged and sometimesrepeated periods of detention.


and is usually acting with theapproval of the local state. Thebottom line for shareholders anddirectors is the profit margin, notconcern for human rights.However, gradually multinationalsare being embarrassed into payingmore attention to human rights,quite simply because they fear thebad publicity. Where litigation hasbeen started, or threatened,companies are quick to settle.

For more information, go towww.survivalinternational.org andwww.amnesty.org.uk (corporateaccountability section). SurvivalInternational is asking forpostcards to be sent to JamesCameron, calling for his supportfor the Dongria Kondh people.�Liz Davies Gordon Bennett

There is a limit to howinteresting a quarterlycolumn on legal aid canbe – even to an audience

of socialist lawyers. Getting thepublic interested is anotheruniverse. Rifling through someold boxes recently, I found a loveletter from an ex-boyfriend. Itwas more of an apologia really,reading something like, ‘Pleasetake me back… I am sorry I saidyou were boring because youalways go on about law… it’sactually really interesting’. Itdidn’t work.

Still, it was a cutting reminderthat for most people the law, letalone banging on about how it isfunded, is pretty boring. Perhapsthat is why it is so difficult to getthe public on side in the battle tosave legal aid and hard topersuade our politicians that legalaid is worth saving.

But why should it be so hard?The tabloids are crammed withtales of crime and crisis – the stuffat the very heart of most legal aidcases. Isn’t there also a part of theordinary person in the street, asopposed to the Claphamomnibus, that feels passionatelyabout the values legal aidchampions: fairness, dignity andjustice?

If lawyers could learn tocommunicate the essence of ourwork in a way that the generalpublic could understand andidentify with, saving legal aidmight be something that everyonewould sign up to. At the end of acase I have often been told byclients how grateful they are thatlegal aid has been able to helpthem; how they never thought itwould happen to them or thatyou could even get legal aid forthings like being protected from aviolent husband or gettingsomewhere safe to live on release

from a children’s prison. To try and get the message

across, YLAL has joined forceswith a number of legal aidinterest groups, including theLegal Action Group and theLegal Aid Practitioners’ Group,to launch a public campaign to‘Save Legal Aid’. The plan is toraise awareness of legal aid andwhy it is worth saving.

Getting away from the legaleseof ‘matter starts’ and ‘contracts’,the campaign is designed toillustrate in ordinary languagewhy ordinary people should careabout legal aid. The aim is todivert attention from tabloidsensations about apparentlytrivial cases which waste publicfunds, and to peel away the tired,fat cat-lawyer-gravy-train claimsto reveal the stories about howlegal aid has helped save homes,access to health and social care,and in some cases, even lives.

If people can be made to seewhat legal aid can do for them,then it will be easier to make theeconomic and political case for it.But time is of the essence. Asfinancial pressure mounts on allpublic bodies during therecession, they are more andmore likely to make decisionsthat impact adversely onvulnerable members of society.Legal aid will be more importantthan ever in this economicclimate to ensure vulnerablepeople do not lose out unfairly ascorners are cut.

If legal aid is not to be acasualty of election campaignscompeting to be tough on lawand order or public spending, weall need to join in with the ‘SaveLegal Aid’ campaign now. �Laura JanesFor more information visitwww.younglegalaidlawyers.org and www.savelegalaid.org

Sex and drugsand legal aid...

subjected to continuous sleepdeprivation. The effects... werecarefully observed.3. It was reported that combinedwith the sleep deprivation, threatsand inducements were made to him.His fears of being removed fromUnited States custody and‘disappearing’ were played upon.4. It was reported that the stressbrought about by these deliberatetactics was increased by him being

shackled in his interviews.5. It was clear not only from thereports of the content of theinterviews but also from the reportthat he was being kept under self-harm observation, that theinterviews were having a markedeffect upon him and causing himmental stress and suffering.6. We... have to conclude that thereports provide to the SecurityService made clear to anyonereading them that BM was beingsubjected to the treatment that wehave described and the effect uponhim of that intentional treatment.7. The treatment reported, if it hadbeen administered on behalf of theUnited Kingdom, would clearlyhave been in breach of theundertakings given in 1972.Although it is not necessary for us tocategorise the treatment reported, itcould readily be contended to be atthe very least cruel, inhuman anddegrading treatment by the UnitedStates authorities.

March

Young LegalAidLawyersThis regular column is written by Laura Janes of YLAL. If youare interested in joining or supporting their work, please visittheir website www.younglegalaidlawyers.org

5:A British soldier whorefused to return to duty inAfghanistan andsubsequently spoke at anti-war rallies, Lance CorporalJoe Glenton, receives anine-month jail sentence.Messages of support [email protected]

3:Justice Secretary JackStraw says the LegalServices Commission,the body whichdistributes the £2.1billioncivil and criminal legal aidbudget, is to beabolished after 10 years.It will be replaced by an‘executive agency’.

4:The Digital EconomyBill could become lawbefore Parliament isdissolved at thebeginning of April,enabling rights ownersto cut off or restrictinternet access forusers who downloadfilms and music illegally.


The British Government has faced afull-frontal assault on the legality ofits anti-terror laws, most recentlythrough challenges to the use ofcontrol orders and asset freezingorders. Since the House of Lords’

seminal ruling on the application of controlorders in June 2009 (Secretary of State for theHome Department v F, E and N [2009] UKHL28), the High Court has seen a slew of chal-lenges to the legality of their use. Nine law lordsheld unanimously that the procedural and evi-dential basis upon which control orders wereapplied for – in particular the use of secret evi-dence – violated the accused’s right to a fairhearing under Article 6 of the European Con-vention on Human Rights (ECHR). Their lord-ships gave deference to the recent decision ofthe Strasbourg Court in A v United Kingdom(Application No.3455/05) that ‘the controleemust be given sufficient information about theallegations against him to enable him to giveeffective instructions to those allegations’.

The ruling now means that if the Secretary ofState for the Home Department (SSHD) refusesto disclose material which the Courts considersought to be disclosed under Article 6, such evi-dence cannot be relied on by the SSHD in con-trol order proceedings.

Thus far, five controlees have had theirorders quashed or revoked following the judg-ment, including two of the appellants in the casebefore the House of Lords – referred to as ‘AE’and ‘AF’ in proceedings – and most recently aLibyan national, Faraj Hasan Al Saadi (referredto as ‘AS’).

Mr Justice Wilkie, passing judgment in AlSaadi’s case, emphasised that mere suspicioncould not suffice for considering that a personwas or had been involved in terrorism andwhether it was necessary to subject that person toa control order for the purposes of protecting thepublic. Reasonable suspicion meant a genuinesuspicion had to be formed such that a reasonableman, having regard to all the circumstances,would regard the grounds as reasonable. Thejudge cautioned against the dangers of guilt byassociation, quoting Mr Justice Collins in SSHDv Bullivant [2008] EWHC B2 (Admin) that‘expressions of support for Islamic extremists...[and]...the sharing of extremist views or keepingcompany with extremists will not suffice’.

The judge concluded that there were groundsfor reasonably suspecting Al Saadi had been

involved in terrorism prior to his arrival in theUK, but throughout his detention and in the twoand a half years since his release – initially onSpecial Immigration Appeals Commission(SIAC) bail and then under a control order –there was nothing of substance giving rise to rea-sonable suspicion of his re-engagement in ter-rorism-related activity.

Arriving at his conclusion, Mr Justice Wilkiedrew particular attention to the evidence givenby a Home Office civil servant and a member ofthe Security Services. When asked for theirviews of Al Saadi being allowed to leave the UK(under the control order he could only do sowith the permission of the SSHD), both wit-nesses’ answers were described by the judge as‘indicative of a relaxed view’ even were Al Saadito be fully at liberty abroad. No evidence wasput forward that the SSHD would require anykind of assurance from a foreign country thatAl Saadi would be subject to supervision or con-trol. These were telling indications in the judge’sview as to the seriousness, or lack thereof, withwhich both the SSHD and the Security Servicesviewed the prospective activity of Al Saadi.

Although Al Saadi remained disaffectedfrom the state and mainstream UK society andadhered to a view of Islam with which manywould feel uncomfortable, Mr Justice Wilkieemphasised such views fell ‘some way short’ ofbeing sufficient evidence of engagement in ter-rorist related activity so as to ‘necessitate theonerous intrusion into his life represented by acontrol order’.

Speaking after the ruling, Al Saadi admon-ished control orders as ‘Apartheid-style housearrest’, their intended use being to ‘break youand make you want to leave the country’.

Remedying wrongsIn Secretary of State for the Home Departmentv AF and AE [2010] EWHC 42 (Admin), twoof the original appellants in the case before theHouse of Lords sought to determine whetherclaims for damages could be brought againstthe SSHD for being subject to orders that weresubsequently revoked in the light of the lawlords’ ruling.

Both applicants had been subject to controlorders for over three years. Following the lawlords’ decision their orders had been revoked bythe SSHD on the basis that he was unwilling tomake disclosure of closed evidence relied uponin proceedings.

REGIMECHANGE?

Over the last year we have seen the systematicunravelling of the Government’s so-called anti-terrorism laws. Chris Loxton asks if this is...


Pict

ure:

Jes

s H

urd

/ rep

ortd

igita

l.co.

uk

The thawing of asset ordersIn Ahmed & others v HM Treasury ([2010]UKSC 2), the Supreme Court allowed a challengebrought by five men who had their assets frozenunder two Orders-in-Council, made in responseto UN Security Council resolutions calling foraction to halt the financing of international ter-rorism. The Court found that the effect of assetfreezing on the individuals and their families wassevere. To take the example of one of the appel-lants, the whole of his assets were frozen. He wasdependent for subsistence on welfare benefitsclaimed by his wife. She, in turn, was only al-lowed to spend her benefits on ‘basic expenses’and, until recently, had been required to reportevery item of expenditure, no matter how small,to the Treasury, including any money spent byher children. Given that she and her childrenwere not the subject of any asset freezing orders,this was an extraordinary invasion of her privacy.

The Court directed itself that, the greater thelevel of interference with fundamental rights, themore Parliamentary scrutiny should be given tothe measures before they become law. In the casesof the two Orders, no Parliamentary scrutiny hadbeen given to them at all. They had simply beenlaid before Parliament as Orders in Council.Orders laid in that fashion are therefore onlylegitimate when the interference with fundamen-tal rights to which the Orders give rise is nogreater than that required by the UN’s regime. Ifthe Government considered such far-reachingmeasures to be necessary or expedient in com-bating terrorism or honouring the UK’s interna-tional obligations, it must first obtain theapproval of Parliament.

Lord Hope, in an agreed judgment with LordWalker and Lady Hale, condemned the Terrorism(United Nations Measures) Order 2006 (TO)and the Al-Qaida and Taliban (United Measures)Order 2006 (AQO) as clear examples of ‘anattempt to adversely affect the basic rights of thecitizen without the clear authority of Parliament’.

The justices stated that those affected by theorders had not had the opportunity to challengethe grounds on which they were suspected (butnot charged) of financing terrorism. It had notbeen the intention of Parliament to give the Trea-sury power to make orders without parliamentaryscrutiny that interfered so profoundly with indi-viduals’ fundamental rights.

The following day, 5th February 2010, theTreasury published a Terrorist Asset-Freezing(Temporary Provisions) Bill, which then cameinto force on 10th February. The Act re-enacts theTO that was struck down by the Court, on a tem-porary basis until 31st December 2010. The idea,presumably, is that Parliament will debate a per-manent replacement after the general election.Individuals who had their assets frozen under theAQO find that their assets remain frozen becauseEuropean Union has enacted directly effectivelegislation, which has the same effect.

�Chris Loxton is a Bar school graduate,Secretary of the Haldane Society and a memberof the Society’s Executive

What these cases surely reflect is that the use ofcontrol orders are ‘a hopeless device in amodern democracy’ and ‘a small gasp of defeat’

Home SecretaryAlan Johnson MP:“disappointed”.

Mr Justice Silber described the applicants’case as an attempt to obtain a remedy for seri-ous wrongs imposed on them in the form ofsubstantial restrictions on their ability to leadnormal lives in breach of their Article 6 rights.

In justifying the basis for claiming damages,reference was made to Lord Justice Sedley’sview in R (K) v Camden and Islington HealthAuthority [2002] QB 198 that ‘an effectiveremedy for violations of Convention rightsreflects the long-standing principle of our lawthat where there is a right there should be aremedy’. Compliance with this principle clearlymeant in this case that the applicants could beentitled to compensation for the seriouswrongs imposed upon them under the controlorders.

The principle of equality of arms was also ofprimary importance to adjudicating disputesbetween individuals and the state. The appli-cation of the principle to control orders meantthat a party could not be ‘doomed to lose hiscase’ by reason of not knowing the full extentof the case against him. Unless the controleesknew the case against them, they would almostcertainly either lose their rights to clear theirnames or at the very least have great difficultiesin enforcing those rights.

In Mr Justice Silber’s opinion, the fact thatcurrent (and potential) controlees could nowdemand to know the full extent of the caseagainst them would likely mean disclosure infuture should either take its ordinary form orprocedures would have to be adopted to pro-vide for hearings in camera with controlees andtheir legal representatives giving undertakingsof secrecy.

Despite concluding that the applicants wereentitled in principle to damages, the judge tookthe view that any such awards would likely besmall in light of the Strasbourg Court’s view ofcompensation available to the foreign con-trolees in A v United Kingdom. In the Euro-pean case, the Strasbourg judges had concludedthat the foreign controlees who had all beendetained for over three years and who, togetherwith their families, had suffered mental illnessand distress, should only be entitled to damagesof several thousand euros each. The Court tookaccount of the fact that ‘the detentionscheme…was devised in good faith, as anattempt to reconcile the need to prevent thecommission of acts of terrorism with the oblig-ation under Article 3 of the Convention not toremove or deport any person to any countrywhere he could face a real risk of ill-treatment’.

Responding to the decision, the SSHD, AlanJohnson, made his expected disappointmentclear, emphasising his intentions to appeal ‘inthe strongest possible terms’, while insistingthat the payment of damages to former con-trolees would be robustly resisted.

What these cases surely reflect is that the useof control orders are, in the words of the formerDPP, Ken Macdonald QC, ‘a hopeless device ina modern democracy’ and ‘a small gasp ofdefeat’ in the face of actual Islamic terrorism.

In the week before Christmas,the union Unite was banned, byan injunction, from taking industrialaction following the breakdown ofnegotiations with British Airways.Keith Ewing looks at this

extraordinary decision...


The company had proposed toreduce the size of crews on anumber of flights – a proposalwhich the union claimed wasunlawful. It is a striking featureof the injunction (no pun

intended) that it was granted despite thefact that the European Court of HumanRights has recently opened up Article 11of the European Convention on HumanRights (ECHR). These freedom of associ-ation guarantees have now been read toinclude the right to bargain collectivelyand, subsequently, the right to organiseand take part in collective action.

It is striking also that the injunction wasgranted, despite the fact that the Human RightsAct 1998 was supposed to incorporate Con-vention rights into domestic law, not in a formfossilised on the date the Act was brought intoforce, but in a way (per section 2 of the Act)that takes account of the evolving jurispru-dence of the Strasbourg Court. The latter issupposed to guide the English courts in theirduty to construe domestic law consistently withConvention rights.

The recent decisions of the Strasbourg

Court (beginning with the unani-mous ruling of 17 Grand Chamber

judges in Demir and Baykara vTurkey, on 12 November 2008) are

nothing short of extraordinary. Apartfrom explicitly turning its back on 30

years of jurisprudence to say that corelabour rights must be read into the Con-

vention, the Court said that these rightsare to be defined in accordance with the

treaties (Conventions 87 and 98) andjurisprudence of the International Labour

Organisation.Not only that: the Demir and Baykara court

emphasised further that the scope and contentof the newly expanded Article 11 of the ECHRare to be read in accordance with the Councilof Europe’s Social Charter of 1961, and thejurisprudence of the Social Rights Committeeestablished there-under. This is good news forBritish unions, given that the latter Committeehas consistently held that British anti-strike lawbreaches the Charter, as have equivalent Inter-national Labour Organisation supervisorybodies (notably the Committee of Experts) inrelation to International Labour Organisation(ILO) Convention 87.

THUNION RIGHT

Pict

ures

: Jes

s H

urd

/ rep

ortd

igita

l.co.

uk

ROTTLEDTO STRIKE


The jurisprudence of the Strasbourg Courthas been contemptuously disregarded by theCourt of Appeal in London, in another caseinvolving Unite. This was the occasion of aninjunction granted to Metrobus, in the course ofa dispute by London bus workers, seeking toestablish London-wide collective bargainingarrangements. According to the Court ofAppeal, the ILO and Council of Europe mater-ial on labour rights was to be treated as being nomore than ‘part of the context’ of the Stras-bourg decisions.

This is a conclusion confounded by even themost cursory reading of Demir. However, indiminishing the importance of the Strasbourgjurisprudence, Metrobus permitted an injunc-tion to be maintained on the flimsiest grounds,undermining action that had the support of amajority of workers voting in a ballot. Forexample, the action was ruled unlawful becausethe union had failed to tell the employees thatthe information it provided about the ballot hadbeen produced from its computerised member-ship records, information of no consequencewhatsoever.

Flimsy or not, Metrobus was followed in acase involving energy company EDF in a dis-pute with the National Union of Rail, Maritimeand Transport Workers. Here, Blake J grantedan injunction because the union had failed togive adequate information to the employer – ina notice of intent to hold a strike ballot – aboutthe category of workers to be balloted. The cat-egory of ‘engineer/technician’ members washeld to be too imprecise, even though it was thebest the union could do, it was a categorisationwidely used in the industry and the employersuffered no prejudice as a result of its use.

It is thus crystal clear that incorporation ofConvention rights by the Human Rights Act1998 (HRA) is of little consequence for Britishtrade unions, for whom it is business as usual inthe domestic courts, raising wider questionsabout why they should lend their weight to theretention of the Act. The road to Strasbourgcontinues to be the only route for the protection

of trade union rights to freedom of association,with the HRA inhibiting that process with itsintroduction of new temporal and financialobstacles.

This conclusion brings us back to the cabincrew injunction, which illustrates just how widethe gap is between domestic legislation andConvention rights. The announcement by Uniteof intended industrial action was made follow-ing a ballot in which the cabin crew voted over-whelmingly in favour. According to Cox J,before whom the case was heard, 10,286

employees voted in the ballot, of whom 9,514(‘that is 92.49 per cent of those voting, on aturnout of 80 per cent’) were in favour of strikeaction.

So how could it possibly be that actiondemonstrating such intense levels of support forindustrial action could be stopped in the courts?In their panic to have the action banned, theemployers stumbled across a provision of theTrade Union and Labour Relations (Consoli-dation) Act 1992 which says that when ballot-ing for industrial action, the union must includein the ballot those ‘who it is reasonable at thetime of the ballot for the union to believe will beinduced by the union to take part . . . in theindustrial action’, and ‘no others’.

In this case, Unite had included in the ballot

a number of people who had taken voluntaryredundancy and so would not be participatingin the action, an oversight causing problemsalso for other provisions of the legislation thatrequire the union to give details to the employerof pre-ballot notice and pre-strike notice ofaffected employees; a term that does not includethose who had left the service of the employer.It was immaterial that the oversight on the partof the union was ‘unlikely to affect the result ofthe ballot’.

In light of the Demir and Baycara decision,it is particularly galling that the injunction inthis case was granted by Cox J, even if she couldplausibly claim to have been constrained by theCourt of Appeal in Metrobus. It is particularlygalling because Cox J happens to be a memberof the ILO Committee of Experts, to which ref-erence has already been made. As she pointedout, however, ‘sooner or later, the extent towhich the current statutory regime [on the rightto strike in the UK] is in compliance with thoseinternational obligations and with relevantinternational jurisprudence will fall to be care-fully reconsidered’.

In the light of the developing jurisprudenceof the European Court of Human Rights, thereconsideration to which Cox J refers needsurgently to take place in Strasbourg. The recentStrasbourg jurisprudence holds open the possi-bility that many of the current restrictions ontrade union freedom in British law will have tobe removed, with far-reaching implications forwhichever party wins the 2010 general election.This sorry tale also has implications for theHuman Rights Act 1998, to the extent thatthere is a compelling need for the debate on theLeft about its future to be grounded more inreality, and rather less on iconography.

�K D Ewing is Professor of Public Law at KingsCollege London and President of the Institute ofEmployment Rights. His forthcoming book, Bon-fire of the Liberties – New Labour, Human Rightsand the Rule of Law, will be published by OxfordUniversity Press.

BYAPPEALCOURT


On 19th March 2009, theSupreme Court of Brazil finallyput an end to three decades ofstruggle for the rights of five in-digenous groups to their ances-tral land in the state of

Roraima, in Brazil’s Amazon region. Four years after President Lula signed a

decree guaranteeing the rights of the Indians tothe 1.7 million-hectare Raposa/Serra do Sol re-serve, the opposing rice-growers – and theirpolitical allies – were finally forced to acceptthe decision of the Brazilian judiciary and toleave the area definitively.

However, despite the temporary victory,reservations attached to the decision pose athreat to the future of indigenous people notjust in Roraima, but all over Brazil, where thefight for the rights of native communities con-tinues.

Roraima and the history of theRaposa/Serra do Sol reserveIn the far-northern Amazon region of Brazil, inan area bordering Venezuela and Guayana, liesthe state of Roraima. Home to 44,000 nativeBrazilians, it is the state with the largest in-digenous population in the country, andalmost half its territory is divided into a seriesof protected reserves.

Raposa/Serra do Sol, one of 32 reserves inthe state, is home to between 17,000 and20,000 members of the indigenous Makuxi,

Wapixana, Ingarikó, Taurepang and Pata-mona peoples, and includes around 150 set-tlements.

Recognised by FUNAI, the National In-digenous Foundation (under the Ministry ofJustice) and the National Institute for AgrarianReform in 1993, the Raposa/Serra do Sol re-serve was demarcated in 1998 under the gov-ernment of then-President Fernando HenriqueCardoso. It was to include 1.7 million hectaresof land. Lamentably, the declaration was neverratified and incursions by non-indigenousgroups continued for over a decade.

The large-scale rice growers who havecome to symbolise the opposition to theRaposa/Serra do Sol reserve are only the latestintruders. In the past Spanish, Portuguese,Dutch and English explorers all vied after themineral wealth of the region, and since in thetwentieth century cattle-ranchers, wood-cut-ters and wildcat miners prospecting for goldand diamonds have sought the riches of landswhich indigenous groups inhabited for hun-dreds of years before them.

Bringing disease and often resorting to vio-lence to seize land, the practices of non-in-digenous settlers have also causeddeforestation and the contamination of localsoil and water, for example with mercury, usedby gold miners, and pesticides employed byrice growers; facts recognised by the Inter-American Commission on Human Rights in1997 in their report on Raposa/Serra do Sol.

The rice-growers, or rizicultores, who selltheir produce primarily in the Amazonian cap-ital of Manaus, have been present in the dis-puted region of Roraima since the 1970s andon a larger scale since the mid-1990s. Yet inthe case of Raposa/Serra do Sol reserve, theyhave operated without the land deeds, títulosde propriedade, required under Brazilian law.Rice is one of the most important sectors ofthe state’s economy, and the growers have longenjoyed the support of local politicians – astate of affairs replicated in many of Brazil’sland battles.

President Lula ratifies thedemarcation of the reserveThe election of President Luiz Inacio ‘Lula’ daSilva in 2002 heralded a new era for landstruggles in Brazil. From the outset, Lula wasquick to voice his support for the country’sthree million landless farmers, who have tra-ditionally struggled against the so-called lati-fundios: large land-owners who possess over40 per cent of the national territory, with ap-proximately half of their vast estates situatedin the Amazon region. In 2005, Lula approvedthe demarcation of the Raposa/Serra do Solreserve, and a deadline of one year was set forall non-indigenous settlers in the area to leave.

Resistance and struggle in 2008More than three years later, the rizicultores re-mained, and the situation became critical.

BrazilianIndianswin legalbattle

They have won their ancestral land but, Ana Naomi de Sousa reports,


A military and police operation – dubbed Op-eration Upatakon, meaning ‘our land’ in theMacuxi language – to oversee the removals ofnon-indigenous settlers proved the catalyst fora new wave of resistance, and the rice-growersrefused to leave.

As local indigenous communities appealedfor their removal, the Roraima state govern-ment rushed to the aide of the rice producersand lodged an appeal at the Supreme Court,questioning the demarcation of the reserve asunconstitutional and requesting it be reducedin size. Such a decision would have left the In-dians in a series of isolated islands and wouldhave had severe consequences for the future ofother indigenous reserves in Brazil.

Playing on old fears, the state governmentclaimed that the demarcation of the reserveposed a threat to national security, owing to itsproximity to the borders with Venezuela andGuyana. They also alleged that the state’s in-digenous reserves hamper the development ofRoraima and impede economic activities; ar-guments that have been heard often in Brazilover the course of its history.

In a bid to appease them, President Lula of-fered five million hectares of federal land toRoraima state on which the rice farmers couldresettle, as compensation. This did little to easetensions. Violence flared in April 2008, withthe perpetrators burning bridges, targetingcommunity centres and roads, and assemblinghome-made bombs. The following month, ten

indigenous people were shot whilst they con-structed houses on previously occupied land.

In August that year, the case came to theSupreme Court, with Joenia Batista de Car-valho, a Wapichana lawyer and head of the In-digenous Council of Roraima’s legaldepartment defending the reserve, becomingthe first indigenous lawyer to defend herpeople in Brazil’s Supreme Court. ‘We are ac-cused of being thieves on our own land,’ shetold the court. ‘We are defamed and discrimi-nated against, and this must end.’

According to Brazilian law, ten judges ofthe Supreme Tribunal must each vote for oragainst the decision of an eleventh, the rap-porteur, who is the first to review the case.Minister Ayres Britto’s decision in the Serra doSol case was in favour of the continued de-marcation of the reserve, and of the removal ofnon-indigenous settlers, though he attached aseries of reservations to his decision. Afterthree judges delayed their decisions, the finaljudgment was further postponed until early2009.

Resolution in 2009Eventually, however, the remaining SupremeCourt judges returned with a majority verdictin March 2009, ruling that the demarcation ofthe reserve was constitutional and ordering thevacation of the area by all non-indigenous set-tlers. Initially hailed as victory for indigenousrights all over the county, with Gilmer

Mendes, one of the Supreme Court judgespointing out that they had ‘established astatute that has to be applied not only in theRaposa Serra do Sol case, but also in othercases of demarcation’, there is still reason to beconcerned for the future of indigenous landrights in Brazil.

The nineteen reservations attached to thecase allow for military installations, road net-works, alternative energy exploration, and‘projects’ and ‘works’ to be undertaken with-out the need for consent from the local in-digenous community. In effect, thereservations limit the security of indigenouscommunities in their reserves and provide alegal basis for the Government to infringe theirrights as guaranteed in the Brazilian constitu-tion, which stipulates that: ‘Indians shall have… their original rights to the lands they tradi-tionally occupy, it being incumbent upon theUnion to demarcate them, protect and ensurerespect for all of their property.’

The residents of the Raposa/Serra do Solreserve may have succeeded in evicting the ag-gressive rice producers and even defeating theirpowerful political allies, but if governmentneeds and defence interests can still take prece-dence over those of indigenous communitiesin the future, the case of the Raposa/Serra doSol reserve was indeed a muted victory.

�Ana Naomi de Sousa is a freelance journalistspecialising in Portuguese speaking countries.

restrictions on the Court decison could endanger the future of their reserves

Pict

ures

: Jes

s H

urd

/ rep

ortd

igita

l.co.

uk

The year 2009 was bookended bytwo judgments: Al Khawaja andTahery in the European Court ofHuman Rights ((2009) 49 EHRR 1)and Horncastle in the new SupremeCourt ([2009] UKSC 14), whose

conclusions have major implications for defen-dants in criminal trials. The fundamental prin-ciple raised in both cases is the right to a fairtrial under Article 6 of the European Conven-tion of Human Rights (ECHR), and the specificissues addressed were the admissibility of evi-dence from absent and anonymous witnessesrespectively.

The importance of the rule against so-calledhearsay evidence is self-evident. It is manifestlyunfair to deny defendants the opportunity toconfront their accusers and challenge the accu-

A F

AIR

TR

IAL?

Brian Richardsonreports on how thenew Supreme Courtis leaving defendantsin the dark

racy and honesty of their accounts as well as thecredibility of those witnesses.

Al Khawaja was convicted on two counts ofindecent assault on female patients. The firstcomplainant made a statement to the police butsubsequently committed suicide before the casecame to trial. Her statement was admitted pur-suant to ss23-28 of the Criminal Justice Act1988. Tahery, the second applicant, was con-victed of GBH with intent. The evidence againsthim included that of a man who informed thepolice that he had seen Tahery stab the victim.The witness later refused to give evidencethrough fear of reprisals. His evidence was readpursuant to s116(2)(e) of the Criminal JusticeAct 2003 (CJA 2003).

Strasbourg upheld both applications on thegrounds that a defendant’s right to a fair trial isirretrievably compromised if the case againsthim or her is based ‘solely or to a decisive degree’upon statements from witnesses that the defen-dant is unable to properly examine and chal-lenge. Crucially the ruling was unable to con-ceive of any counterbalancing factors that mightjustify any convictions secured on the basis ofsuch evidence.

The UK Government was deeply disturbedby this decision, made by the fourth section ofthe European Court sitting as a Chamber, andtherefore sought a definitive judgment from theGrand Chamber. Strasbourg adjourned its deci-sion until the Supreme Court had decided on thecase of Horncastle and so, at the time of writing,we await Strasbourg’s judgement.

The basis of the objection is a belief that theChamber failed to take account of the specificand necessary measures established by domesticjurisdictions when considering and applyingConvention rights. For example there has never,in actual fact, been an absolute prohibition on theuse of hearsay evidence in English law. Parlia-ment’s position is that there are exceptional cir-cumstances which justify the admission of suchevidence. Thus, it is argued, a defendant’s right toa fair trial must be balanced against the protec-tion of witnesses and the interests of justice.

S116 of the CJA 2003 codified a set of con-ditions that would allow for the admission ofevidence from absent witnesses including thosewho have died, from those whose attendance it‘was not reasonably practicable to secure’ and incircumstances where ‘through fear the relevantperson does not give (or does not continue togive) oral evidence in the proceedings…’. Therights of defendants are supposedly protected bythe requirement that an appropriate direction isgiven by the Judge about the caution with whichhearsay evidence should be considered.

The evidence of anonymous eyewitnessesraises a slightly different concern. It is evidencegiven orally in the proceedings so clears thehearsay hurdle but, by definition, it is from sourcesthat the defendant is unable to identify. Writtenstatements made by these witnesses before the trialare likely to be heavily redacted. Within the court-room itself the witnesses will be hidden behind ascreen. Their voices may be modulated beyondrecognition and the defendant’s counsel will beprecluded from asking any questions that mightreveal their true identity. Consequently, despite thebest efforts of defence counsel, in many cases,cross-examination is rendered a nullity.

This type of evidence was not explicitlyaddressed by CJA 2003, but it nevertheless came


as something of a shock to politicians andobservers when the House of Lords upheld theappeal of Iain Davis on 18th June 2008 ([2008]1 AC 1128, CA). The appellant had been con-victed of a particularly macabre offence in whicha single bullet fired at a New Year’s Eve partyhad fatally wounded one person then passedthrough a partition wall and killed a secondguest. Seven witnesses who gave evidence at thetrial did so anonymously. Moreover it wasaccepted by the Law Lords that without the tes-timony of three of these witnesses Davis wouldnot have been convicted.

Their Lordships clearly accepted that theremay be circumstances in which the admission ofevidence from anonymous witnesses was justi-fied. Nevertheless they acknowledged that,despite the increasingly widespread practice bytrial judges, there was no power to admit itunder the common law and that any change tothis long-established principle would have to beintroduced by Parliament.

Practitioners and students of criminal law mayrecall the hue and cry whipped up by the Govern-ment, police, Crown Prosecution Service andmedia in the immediate aftermath of that deci-sion. The then head of Scotland Yard’s CounterTerrorist Command, Bob Quick, described theruling as ‘catastrophic’ and suggested that ‘[t]hereis too much principle and not enough pragmatismin the criminal justice system’.

Justice Secretary Jack Straw’s response wasslightly more measured. He acknowledged that‘[i]t is fundamental that defendants should beable, literally to see and hear the evidence beforethem’. However he added ‘[b]ut you have got tobalance that against what actually happens in reallife these days where you’ve got very serious gunand drug crime and there is a high level of fear’.

The opportunism of Government ministers insuch circumstances is breathtaking. Barely paus-ing for thought, successive Home and Justice Sec-retaries have casually flitted from boasting abouttheir administration’s record on cutting crime toclaiming that society faces an unprecedentedthreat unless their increasingly draconian mea-sures are passed into law.

It was suggested that the implications of theruling in Davis would lead to the collapse ofdozens of pending trials, including the emotivecase of the youths charged with killing 11-year-old Rhys Jones in Liverpool. In addition, it wasargued that a whole series of convictions wouldhave to be quashed. Notable among these wouldbe that of the men jailed for killing two teenagers,Charlene Ellis and Letitia Shakespeare, in 2003at a New Year party in Birmingham.

It was in this atmosphere of hysteria that Par-liament passed the Criminal Evidence (WitnessAnonymity) Act 2008 (CE (WA) Act 2008). Thisaddressed their Lordships’ concerns and estab-lished a set of conditions for the admission of evi-dence from such witnesses. It received its RoyalAssent on 21st July 2008, barely a month afterthe Davis ruling. Any concern about the hastewith which it was drafted, debated andapproved was, supposedly, allayed by the inclu-sion of a so-called ‘sunset clause’, which wouldsee the legislation lapse at the end of 2009.

The Court of Appeal considered the compat-ibility of the CE (WA) Act in Mayers ([2008]EWCA Crim 2989, CA) and happily concludedthat it ‘provided a comprehensive structure todeal with witness anonymity and sought to

address the provisions of the European Con-vention of Human Rights’. This confident asser-tion was, however called into question by thedecision in Al Khawaja and Tahery.

Following that pronouncement, Horncastlewas considered by the Court of Appeal ([2009]EWCA Crim 964, CA). That judgment in Marchlast year was dismissive of Strasbourg’s ‘sole anddecisive’ evidence test, suggesting both that it issimply one of the factors courts must considerand that the safeguards required by Strasbourgare already established in English law.

The Supreme Court’s later ruling fully adoptsthe decision of the lower court. Indeed, in theirjudgment their Lordships indicate that their dec-laration should be read in conjunction with thatof the Court of Appeal. Giving the lead opinion,Lord Phillips, its President, made three very spe-cific points:

(i) The common law hearsay rule addressed theaspect of a fair trial covered by Article 6(3) (d), andParliament had enacted exceptions to the hearsayrule in a regime which contained safeguards thatrendered the ‘sole and decisive’ rule unnecessary.

(ii) Strasbourg had recognised that exceptionsto Article 6(3) (d) were required in the interests ofjustice, but the jurisprudence on the exceptionslacked clarity and had introduced a ‘sole and deci-sive’ rule without discussion of the principle under-lying it or full consideration of whether it was jus-tified to impose it equally on common law andcontinental jurisdictions.

(iii) The ‘sole and decisive’ rule would createsevere practical difficulties if applied to Englishcriminal procedure.

In fact, the Supreme Court decision goesslightly further than the Court of Appeal as,unlike the lower court, it also addressed thequestion of anonymous witnesses. In so doing,it recognised that ‘whether evidence is or is likelyto be sole or decisive is relevant to the questionof whether the court should permit it to be givenanonymously but…’ it added ‘there is nomandatory rule prohibiting the admission ofsuch evidence’.

As we begin a new decade, these new rulesare becoming increasingly entrenched. From the1st January 2010, new witness anonymity pro-visions contained within Chapter 2 of Part 3 ofthe Coroners and Justice Act 2009 have replacedthe defunct CE (WA) Act 2008. A Ministry ofJustice circular dated 17th December 2009announced that the new scheme is very similarto that of the 2008 Act. The provisions have sim-ply been ‘fleshed out’ to expand upon thoseareas which were not fully considered when theoriginal measures were passed.

The original assertion in the wake of Davisthat so many convictions and trials would beplaced in jeopardy is somewhat telling. It sug-gests that, far from being an exceptional measuredeployed only after all other safeguards havebeen considered as the legislation requires,anonymity is being routinely offered in return fora witness’s agreement to give evidence. Defen-dants were already at a distinct disadvantage incriminal proceedings, battling as they mustagainst the might of the state. These rulings andprovisions mark a further erosion of the ancient,if illusory, principle of the equality of arms.

�Brian Richardson is a pupil barrister at GardenCourt Chambers and a member of the HaldaneSociety Executive.


CLIMATECINTHECOU


CHANGE URTROOM


Copenhagen failed totackle the most seriouscrisis humanity has everfaced. Can the tools ofthe lawyer’s trade helpsave the planet?


As early as the 1950s, the first law suits were filed inresponse to the first major study to show a causallink between smoking and lung cancer, but it tookalmost half a century before ‘big tobacco’ was

forced by juries in the United States to pay big awards. In the 1970s, in the days before tetraethyl lead (TEL)

levels in petrol were regulated, a client of the North Kens-ington Neighbourhood Law Centre in London lived next toa recently-constructed flyover. His children began doingpoorly in school. They were tested at the local hospital andfound to have dangerously high levels of lead in their blood.The Law Centre brought a High Court action against theleading petrol companies. The companies moved successfullyto strike out the claim as having no basis in law and the LawCentre was lucky not to be hit with a crippling costs award.

Just over a decade later, the World Health Organisationlabelled TEL ‘the mistake of the 20th Century’. It is nowscientifically accepted that TEL retards the mental devel-opment of children and petrol companies have removedTEL from their product.

Climate change litigation has increased exponentially inthe new century. The Center for Climate Change Lawshows that only five climate change actions were broughtin the US in the whole of the 1990s. Eleven came before thecourts between 2000 and 2005. Following the entry intoforce of the Kyoto Protocol in 2005, 11 suits were filed in2006, rising to 31 in 2007 and 71 in 2008.

The human rights approach has been used in differentjurisdictions and litigation can achieve more than one pur-pose. As the cases below show, it can: � Force governments or corporations to disclose informa-tion which may help to educate the public about the po-tential environmental impact of a given project, forexample, by using the rules of disclosure in criminal or civilcases or by employing freedom of information legislation;

� Help to confront and punish a notorious polluter;� Protect campaigners facing criminal charges or civil suits,while causing embarrassment to the targets of their cam-paigns; and � It can be used tactically, to bring parties to the negotiat-ing table with the aim of settling out of court.

The native Iñupiat village of Kivalina in North Alaska isbeginning to fall into the ocean. Ice, formerly a wave bar-rier, is melting because of Greenhouse Gas (GHG) emis-sions. The 400 villagers will have to be relocated at a costof up to $400 million. However, they are not going quietly;they are taking some of the most powerful corporations onearth to court. Kivalina v. ExxonMobil Corp., et al., (2008)constitutes an important development in rights-based liti-gation against those principally responsible for climatechange. The suit claims damages related to climate changeagainst nine oil companies (including ExxonMobil, BP andRoyal Dutch Shell) as well as fourteen power companiesand one coal company.

Their complaint echoes the rights guaranteed under theUniversal Declaration of Human Rights (UDHR) and In-ternational Covenant on Economic Social and CulturalRights (ICESCR) in asserting that ‘Defendants’ emissions ofcarbon dioxide and other greenhouse gases, by contribut-ing to global warming, constitute a substantial and unrea-sonable interference with public rights’.

Historically, climate change nuisance claims have beenrejected by courts. The main problem has been showingthat individual polluters’ emissions were the proximatecause of the plaintiffs’ harm. It is also hard to prove the

by Richard Harvey

Climate change litigation has increased exponentially in the 21

The Kivalina Case

degree to which the harm was increased owing to an indi-vidual defendant’s emissions. The Kivalina suit ingeniouslyattempts to circumvent these problems by including claimsfor civil conspiracy.

The complaint cites the Arctic Climate Impact Assess-ment (ACIA) to show that defendants ‘conspired to createfalse scientific debate about global warming in order to de-ceive the public.’ The plaintiffs accuse ExxonMobil, AEP,BP America Inc, Chevron Corporation, ConocoPhillipsCompany, Duke Energy, Peabody, and Southern of engag-ing in ‘… an agreement with each other to mislead thepublic with respect to the science of global warming and todelay public awareness of the issue’.’.

In bringing the Kivalina suit, the San Francisco-basedCenter on Race, Poverty and the Environment, togetherwith the Native American Rights Fund in Anchorage, havedrawn on the experience of tobacco litigation where plain-tiffs used civil conspiracy to target corporations’ fraudulentcampaigns to mislead the public about the effects of theirproducts.

A similar case on behalf of indigenous peoples in the Arcticwas filed in December 2005, citing many of the same ar-guments and scientific research as the Kivalina case. Thetactical approach was different. Instead of targeting the pol-luters themselves, the Inuit Circumpolar Conference tookthe US Government to task for its failure to protect the Inu-its’ human rights. They petitioned the Inter-American Com-mission on Human Rights for ‘relief from human rightsviolations resulting from global warming and climatechange caused by … the United States.’

The petition asserts that the US is obligated to protectthe rights of the Inuit by its acceptance of the American De-claration of the Rights and Duties of Man.

The Inuits’ approach was to avoid taking on the wealthytransnational corporations in protracted and costly courtbattles. Instead, they seek a form of international equitablerelief in a cooperative approach to resolving the problemscaused by climate change. The case remains under review.

In 2005, eight Nigerian communities in the Niger Deltafiled a case in the Federal High Court of Nigeria againstShell, ExxonMobil, ChevronTexaco, TotalFinaElf and Agipjoint venture companies, the Nigerian National PetroleumCorporation and the Nigerian Government, to stop a prac-tice known as gas flaring.

Refining companies are only interested in the oil and notthe gas, so they burn off the gas by ‘flaring.’ Refined, thatgas could be worth $15 million each day to Nigeria’s econ-omy. Flaring causes mercury, benzene and lead to be re-leased if the gas is flared at too low a temperature. Thiscocktail of chemicals causes cancers, respiratory diseasesand blood disorders in humans. Flaring also releases nitro-gen oxide and sulphur dioxide, creating acid rain.

For human rights litigators, the good news came in No-vember 2005 when, in Gbemre v Shell et al., Justice Nwoko-rie in the High Court of Nigeria issued a landmarkdeclaration and held flaring to be a violation of the consti-tutionally-guaranteed right to life. He ordered the Respon-dents to cease flaring immediately and found they hadviolated the law by failing to carry out an environmentalimpact assessment in the Applicants’ community. He orderedthem to ‘take immediate steps to stop the further flaring ofgas.’ He also ordered Nigeria’s Attorney General and Min-istry of Justice to amend the law so as to remove from thestatute book all provisions purporting to permit gas flaring.

However, a year later Justice Nwokorie was removedfrom the case and transferred to the far north of the country.

st century, from five actions in all the 1990s to 71 in 2008 alone

�


The Inuit Circumpolar Conference

The Niger Delta

Pict

ure:

Jes

s H

urd

/ rep

ortd

igita

l.co.

uk


When attempts were made to hold Shell in contempt forfailing to comply with the court order, Shell were insteadgranted a further year within which to file and implementa detailed scheme to phase out flaring. When the Plaintiffs’lawyer went to the courthouse in April 2007 to request acopy of the scheme, not only was there no scheme on file,but the court file itself was mysteriously unavailable.

Shell and the Nigerian National Petroleum Corporationcontinue to violate the human rights and to pollute the en-vironment of the people of the Niger Delta in a case that isfar from over. However, where the rule of law is weak andcorruption rife, climate change litigation in Nigeria seemsto be winning the battle but losing the war.

Another potential litigation strategy in seeking account-ability for climate change is the justification defence. Thishas been used successfully in a number of cases by Green-peace activists and other environmental campaigners as wellas anti-war protestors. Campaigners provoke the state intoprosecuting them, with the aim of using the ensuing pub-licity to persuade governments and transnational compa-nies to change policies and practices which damage theenvironment.

The tactic was pioneered by Lord Melchett, as directorof Greenpeace UK, in 1999 when he and 27 other activistswere acquitted of criminal damage after destroying an ex-perimental field of genetically modified crops in Norfolk.Their carefully calculated legal tactics wrong-footed theprosecutors, while the Defendants’ obvious sincerity anddesire to act in the public good even caused the officer whoarrested them to decide to join Greenpeace.

The defence strategy was also used when six Greenpeace ac-tivists admitted trying to shut down the Kingsnorth powerplant in October 2007 by occupying its smokestack andpainting the word ‘Gordon’ on its chimney. Their justifica-tion defence was based on the proposition that they weretrying to prevent climate change causing infinitely greaterdamage to property around the world.

Professor James Hansen, director of NASA’s GoddardInstitute for Space Studies, testified that there is an imme-diate need to protect property endangered by rising sealevels. He and other witnesses cited areas at serious risk,including parts of Kent, the Pacific island state of Tuvalu,parts of Greenland, China’s Yellow River region, the LarsenB ice shelf in Antarctica, coastal areas of Bangladesh and thecity of New Orleans.

Hansen said this one power station emits the same

amount of CO2 as the 30 least polluting countries in theworld combined.

The acquittal of the ‘Kingsnorth Six’ is the first casewhere preventing property damage from climate changehas been invoked successfully as a lawful excuse in anycourt. The Defendants’ vindication came just over sixmonths later, when the UK’s new Department for Energyand Climate Change ruled that it will not allow any newcoal-powered plants to be built in Britain without carboncapture and storage (CCS). Any new plants will have toguarantee 25 per cent CO2 capture immediately, with 100per cent capture by 2025.

International human rights law is being cited in the case ofthe Tokyo Two: an important environmental case in Japan,offering a new twist to the defence of necessity. In January2008, Greenpeace Japan began to investigate claims by awhistle-blower that crewmembers in Japan’s whaling fleethave for years been embezzling valuable whale meat andselling it for personal gain.

In April 2008, Greenpeace investigators delivered to theTokyo District Prosecutor a box they had taken from acourier depot. It was addressed to a crewmember from thewhaling fleet and contained black market whale meat. In-stead of an investigation into embezzlement and high-levelcover-up, it was Junichi Sato and Toru Suzuki, two Green-peace investigators, who were arrested and charged withtheft of a box of whale meat and trespass.

The defence has invoked Article 19 of the InternationalCovenant on Civil and Political Rights, the freedom to‘seek, receive and impart’ information, in support of theirjustification defence, arguing that the Defendants’ actionswere intended to expose official corruption and to stirdebate about government-subsidised ‘research’ whaling.

This is Japan’s first ‘necessity’ defence, and lawyers forthe Tokyo Two plan to call international human rights ex-perts to demonstrate that this concept is also recognised inthe European Court of Human Rights where, under Arti-cle 10, the duty of a journalist or campaigner to gather andimpart information to the public may in certain circum-stances override other duties and responsibilities, even theduty to obey certain criminal laws.

Another field of creative lawyering is that pioneered by Cli-mate Justice and a coalition of environmental organisations,who have petitioned UNESCO’s World Heritage Commit-tee in 2004 to place a number of environmentally endan-gered localities on their List of World Heritage Sites in

�

Since the Kingsnorth acquittals, new coal-powered plants will

Greenpeace v GMThe Tokyo Two

UNESCO’s environmental mandate

The Kingsnorth Case

Marching in August2008 against thebuilding ofKingsnorth coalfired electricitystation inRochester, Kent.


Danger owing to the threats posed to the sites by climatechange.

In 2004 the Belize Institute of Environmental Law andPolicy petitioned UNESCO about the impact of climatechange on the Belize Barrier Reef Reserve System, the largestbarrier reef in the northern hemisphere, comprising offshoreatolls, several hundred sand cays, mangrove forests, coastallagoons and estuaries. The system’s seven sites illustrate theevolutionary history of reef development and are a signifi-cant habitat for threatened species, including marine turtles,manatees and the American marine crocodile.

Citing UNESCO’s Intergovernmental Oceanic Com-mission, petitioners demonstrated the threats to the Reeffrom rising sea levels; changes in sea currents resulting ininterference with ecosystems and increased temperatureand precipitation levels; collapse of fishing industry; coralbleaching; cholera and seafood poisoning, increasinglylikely because of the warming of the oceans; and also theimpacts on marine and human life of harmful algalblooms.

Major conservation operations are necessary to make thereef system more resilient to global climate change and toreduce GHGs. Petitioners ask that a Coral Bleaching Re-sponse Programme be set up to provide early warning ofmajor bleaching events, to monitor their spatial scope andimpact, and to evaluate management policies and strategiesfor dealing with mass bleaching events. They emphasise thatsustaining coral reefs requires a plan to reduce GHG emis-sions and lessen the future impacts of climate change. Stud-ies suggest that 40 per cent of the world’s coral reefs willhave been lost by 2010, and another 20 per cent in the nexttwo decades unless urgent management action is imple-mented.

A report by the Sydney Centre for International andGlobal Law on Australia’s responsibilities under interna-tional law for the Great Barrier Reef World Heritage areahighlighted many of the same problems as those cited in re-lation to Belize. This report was considered by the WHCtogether with the rest of the petitions.

One further case merits inclusion as an example of a suc-cessful negotiating strategy resulting from a problematiccourtroom tactic. In 2002, Friends of the Earth USA,Greenpeace USA, and the City of Boulder, Colorado fileda lawsuit in which they were later joined by the Californiacities of Arcata, Santa Monica and Oakland. They allegedthat the Export-Import Bank of the United States and theOverseas Private Investment Corporation (OPIC) illegallyprovided more than $32 billion in financing and insurance

to fossil fuel projects over a ten year period without as-sessing whether the projects contributed to global warm-ing or impacted the US environment, as they were requiredto do under the National Environmental Policy Act(NEPA).

Fossil fuel projects financed by the two agencies from1990 to 2003 produced cumulative emissions equivalent tonearly 8% of the world’s annual CO2 emissions. In August2005, a federal judge found that US cities suffering eco-nomic and other damages from climate change had stand-ing to sue under NEPA, opening up the courthouse doorsto those injured by climate change. Testimony from thecase, which successfully asserted that climate change is realand caused by human activities, later informed the Mass-achusetts v EPA decision, where the US Supreme Courtheld that carbon dioxide and other GHGs are pollutantsthat can be regulated under the Clean Air Act.

In February 2009, the case was settled; the Export-Import Bank agreeing to take carbon dioxide emissionsinto account in evaluating fossil fuel projects and to createan organisation-wide carbon policy. OPIC has set a goal ofreducing GHGs associated with projects by 20 per centover the next ten years. Both agencies have committed toincreasing financing for renewable energy. In an encour-aging note for other climate change litigators, the settle-ment awarded $100,000 in Plaintiffs’ attorneys’ fees andcosts pursuant to the Equal Access to Justice Act, (28U.S.C. § 2412).

The ‘Greenpeace defence,’ of goading governments andtransnational corporations into taking legal action that canproduce a reasonably quick result in the courtroom offersone useful model for campaigners and litigators. Goingdown the ‘Tobacco Road’ and taking the climate changefight into the halls of government and boardrooms of bigbusiness can produce worthwhile negotiated settlements,as in the Friends of the Earth case. It also has the risk ofbeing time-consuming and costly, but it can also force di-rectors and shareholders in the world’s greatest polluters torethink their policies. Already some oil companies areshowing concern about their public image in this regard.Shell’s climate-friendly pop-up ads all but obliteratedrecent internet reports from Copenhagen, while BP’s newcorporate logo is calculated to look as if our cars are pow-ered by organically grown sunflowers. Lawyers have amajor part to play in the struggle to get the big polluters tochange their policies, not just their PR.

�Richard Harvey is a barrister at Garden Court Chambers,consultant to Greenpeace International on the Tokyo Twocase and a member of the Haldane Executive Committee.

notbebuilt inthiscountrywithoutcarbon capture and storage

Climate Change in the US Courtroom

Pict

ure:

Jes

s H

urd

/ rep

ortd

igita

l.co.

uk

The COP 15 Climate negotiations were a disaster. Theend result was a three page document, now namedthe Copenhagen Accord (not a treaty because it isnon-binding, merely stating principles of which to

(‘take note’)) which no country has signed up to in anyevent. It has no lawful authority or standing at all, it is amere statement of vague intent. This is a sin of omission.The collective failure to act is a crime against the planet andall those who live within, upon and on it.

Here are some simple suggestions on what to do next:

1. Shift the focus from commodity toresponsibilitya) Instead of market provision agreements, implement bind-ing international public trust doctrine law. Planetary pro-tection then takes pre-eminence, with direct responsibilityand protection provisions setting out specific duties andobligations. Restorative and ecological justice becomes an-swerable in a court of law; b) Cut the damaging subsidies and replace with emergencyclean energy subsidies;


Collapseof thebadcopPolly Higgins sets outhow it should have beendone in Copenhagen

c) Replace the word sustainability with responsibility in alldocuments.

2. Change the procedure from hidden totransparentTransparency and accountability procedures be imple-mented at all levels, with legal onus to give full and frankdisclosure of all proceedings. Closed door meetings arebanned and all negotiations be filmed in real-time andstreamed on TV, radio and online for general public access.

3. Narrow the gap between people andpoliticiansa) All leaders to make themselves available to their peopleat some point during the COP to account for their progress;b) Decriminalise the process. Cancel the extended policepowers of arrest which serve only to breed a culture of fear; c) Ensure gender balance at all levels – 51% of the world isfemale, but 96% of the negotiators at top level are male.With more female input we would have a better balance ofproposed solutions.

4. Provide for, listen to and act upon thevoice of the peoplea) Those who come with wisdom, the indigenous voice, theactivists, those who have travelled to the negotiations outof the personal agenda that they care for the planet andwant to find an equitable solution. All voices be fully ac-knowledged and embraced, not marginalised; b) All negotiators to be under the age of 40 – they are theones who are going to have to live through the outcome; c) Set up real-time public voting on issues as they arise.

5. Listen to our mothersGet a good night’s sleep and eat well. Decisions made on 48hours worth of concentrated sleep deprived negotiationsfuelled by biscuits and caffeine lead to desperate and mis-placed outcomes. As COP 15 so sadly demonstrated.

�Polly Higgins participated in the re-drafting of theCopenhagen Treaty on behalf of the People’s ClimateSummit. None of the people’s proposals were included inthe final Accord.


Pict

ure:

Jes

s H

urd

/ rep

ortd

igita

l.co.

uk


Iwould like to explore why environmental cases in thepublic interest are a distinctive kind of case, why theEnglish costs rule is a barrier to these cases that must beremoved, why the Jackson Review does not do this, and

how an American style rule on one way cost shifting couldgrant the access to justice that the UK is obliged to provideunder the Aarhus Convention.

Over the last half century, a distinctly new kind of liti-gation has emerged globally: cases brought in the interest ofthe public. From time immemorial civil cases were aboutprivate interests. But a modern conception of human rightsand environmental interests has led to cases that seek toprevent or redress public harms. In the civil rights era inthe United States, cases that asserted the rights of black cit-izens to be treated equally were a central pillar on whichchange was built. Similarly, in the United States, environ-mental protection has depended on cases to force govern-ment and industry to fulfil legal duties to regulate or reducepollution.

These public interest cases assert interests that arebroad rather than individuated. The successful plaintiffenjoys no benefit greater than other citizens. In effect, sucha plaintiff has brought the case not on her ownbehalf but on behalf of the public, to protectan interest that is going unpro-tected by governmentactors. In such casesthere is always a govern-mental entity that couldhave protected the interestbut failed to do so. Whena private citizen or a non-governmental organisationpicks up the cudgel andgoes to battle, they do so asa private attorney general.

This private attorney general concept isdistinctly modern. It is an advance in ju-risprudence we should be proud of. It is amarker of mature civil society, and key featureof modern participatory democracy. It allows

citizens to play a role in the balance of power. When gov-ernment cannot or will not act to protect public interests,citizens can themselves do so where they can act as privateattorneys general.

The costs barrier For private attorneys general to protect the public interest,the system must give them useful access to justice. Fourconditions ensure such access: locus standi must be easy toestablish, costs must not be prohibitive, the scope of reviewmust be broad, and remedies must be adequate.

In the England and Wales legal system, standing is lib-erally granted. This is not the case in all mature democra-cies. In Germany, for example, standing is very restrictive.But while the courtroom door is open in the UK, the re-maining three conditions are problematic: costs, scope ofreview and remedies. These three barriers mean that thecourts in the UK are not providing the democratic oppor-tunity that they currently provide in the United States andmost other EU member states.

I will focus primarily on the problem of costs here. TheEnglish rule of ‘costs follow the event’ grew up centuriesago. It makes no provision for the modern class of publicinterest cases.

The normal use of the English rule in environmentalcases gives results in which losing plaintiffs can be

liable for tens of thousands of pounds, and thereis no barrier to being liable for a millionpounds or more. In a recent case, the respon-dents in an environmental public interest case

have claimed £88,100 for a three dayhearing against a woman

who would have to sellher house to pay.

The costs inthat case havenot yet been de-

termined at thetime of writing,

but the SupremeCourt has already said that it

Will the JacksonReview deliveraccess to justicein environmentalcases?

by James Thornton

Pict

ures

: Jes

s H

urd

/ rep

ortd

igita

l.co.

uk


is ‘difficult to imagine circumstances in which it would beappropriate ... to allow less than £25,000 if the Respon-dents’ costs would otherwise reasonably exceed that sum’.

English courts casually impose such costs every day. Indoing so they are entirely out of line with the rest of the EUand with the United States. Such punitive costs act as an ef-fective barrier to justice. Indeed, they were intended to doso. Over the centuries, common law judges worked to keepprivate litigants from suing unless they were either so sureof victory they were willing to risk paying the other side’scosts, or so wealthy it did not matter. The result is wellcaptured in the old line, “Her Majesty’s courts are open toall members of the public – just like the Ritz.”

This old rule is entirely unsuited to the modern conceptof public interest cases. Individuals or NGOs bringing suchcases never have a financial interest in the outcome, andcannot afford the loss. This is evident regarding privatecitizens, but applies even to environmental organizations.The rule freezes them from bringing cases asserting the in-terests of the public.

The Jackson ReviewLord Justice Jackson announced in January the results ofhis study of civil costs in England and Wales. The report’sconclusions have been widely praised. I demur. When look-ing at environmental cases, it appears that the views an-nounced in the report, if adopted, will not improve thecosts problem, and may even make it worse.

The final report differs from the Preliminary Report,issued in May 2009. There, it was recognised that envi-ronmental cases required special cost rules. And it appearedto favour one way cost shifting. In true one way cost shift-ing, a plaintiff who loses bears his own costs only, but aplaintiff who wins can recover costs from the other side.

The final report pulls back from the idea of true oneway cost shifting and instead recommends ‘qualified’ oneway cost shifting in all civil cases.

Under ‘qualified’ one way cost shifting, the basic pre-sumption is that the losing plaintiff still pays, as he wouldunder the normal English rule, but his liability for costsmay be qualified. The problem arises in the qualification.For the report takes the view that ‘the financial resourcesavailable to the parties may justify there being two waycosts shifting in particular cases’. This effectively meansthat private individuals and NGOs would be in the sameposition as they are now.

It is true that the report contains rhetoric suggestingthat only the wealthy should pay. But when we considerhow the system would work in practice, it seems to comedown to this: losing plaintiffs would be shielded from costsonly if they are poor enough to obtain legal aid. Thatamounts to the poorest third or so of the population ofthe UK and never applies to NGOs.

So under the proposed costs rule, only the poorest thirdof the population would have access to justice. Everyoneelse would pay based on a reasonableness test. And wehave copious evidence about what English judges think isreasonable, e.g. a minimum of £25,000 for a three dayhearing in the Lords.

The Aarhus ConventionThe unfairness of the UK costs system is no longer entirelya domestic affair. The UK is bound by the Aarhus Con-vention, which requires that in environmental cases costsshall not be prohibitive. A point in favour of the JacksonReview is its implicit admission that the UK cost rules arenot in compliance with Aarhus. The unfortunate thing isthat the Review’s proposal would not put the UK in com-pliance. The ‘qualified’ one way cost shifting leaves mostcitizens, and almost certainly all NGOs, liable to high coststhat are not knowable in advance. Indeed the one protec-tion against such costs in environmental cases – protectivecosts orders – could be eliminated. While protective costsorders are themselves not enough to comply with Aarhus,

�

“When government cannot or will notact to protect public interests, citizenscan themselves do so where theycan act as private attorneys general”


they did provide some costs insulation. If qualified oneway costs shifting gets rid of them without moving to trueone way cost shifting, plaintiffs who bring environmentalcases in the public interest may well wind up worse underthe proposed reforms than under the current rule.

Genuine one way cost shiftingThe problem with the Jackson Review’s view of costs,when it comes to environmental cases, is the qualificationon the shifting of costs. I’d like to outline how genuine oneway cost shifting works in environmental cases by lookingat the system in the United States.

The private attorneys general concept began in theUnited States with some of the landmark modern environ-mental legislation, the Clean Air Act and the Clean WaterAct in the early 1970s. In each, members of the public aregiven the statutory right to step into the shoes of a govern-ment prosecutor and bring civil actions in federal courtsagainst polluters. The successful citizen plaintiff is allowedto recover costs including legal fees against the defendant.

This one way cost shifting was an invention of the ide-alistic moment in history when the environmental move-ment was new, public interest cases were first beingconceived, and even Richard Nixon was happy to sign thelandmark bills into law. One way cost shifting in environ-mental cases is a variant on the standard American rule.The American rule on costs in civil cases generally is thateach side bears their own costs. This provides far greateraccess to justice than the English rule. But the one way costshifting provided greater access yet, in that it gave privatecitizens and NGOs an incentive to bring cases.

The incentive is justified under the theory that to re-cover costs, the citizen must show that that defendant hasviolated environmental law. Because this is a public harm,redress of the harm is a public good. The one way costshifting rule has been included by one count in around 150American environmental laws, making it the general rulein environmental cases. It applies in cases both against theGovernment and against legal individuals. Because oneway cost shifting has proved such a useful invention ofcivil society, it has survived conservative governments tobecome a fixture of the law.

A Case Study in One Way Cost ShiftingGenuine one way cost shifting is effective in deliveringgood environmental outcomes. It may be useful to illus-trate this with an example.

In 1984, I joined an American environmental law non-profit group called The Natural Resources Defense Coun-cil (NRDC). My goal was to set up a program to enforcethe Clean Water Act nationally. The Ronald Reagan ad-ministration had been in power for three years, and hadworked systematically to dismantle federal enforcement ofenvironmental laws. From a normal annual caseload ofaround 350 enforcement actions under the Clean WaterAct for the country, the number dropped by 1984 to zero.

With a team consisting primarily of a chemist a secre-tary and myself, we researched violations of water dis-charge permits, and used the private attorney generalprovision of the Act to bring civil enforcement actions infederal court. Within six months we had 60 cases pending,and the program went on to more than double thatnumber of cases. We won all the cases. We got injunctionsthat ordered the polluting companies to comply with thelaw, and penalties that we used to set up charities thatworked for clean water in the polluted areas. We also gotcosts and fees in all the cases. This was vital, for the NRDCis a charity. We had a loan from a trustee to fund the firstcases. From the fees we were able to repay the loan andfund the subsequent cases.

The result was not only enhanced compliance in the com-panies we took to court. The message went wider. A nationalindustry newsletter with a high subscription fee was set upthat just tracked our cases. Companies paid attention.

�

“When it comes toenvironmental cases,the Jackson Review isa missed opportunityto provide the accessto justice the UK isbound to provide”


One of the major cases was against Bethlehem Steel, forviolations at its Sparrows Point plant on the ChesapeakeBay. At that time the Sparrows Point plant was the world’slargest steel plant, and the damage of its pollution was con-siderable. After three years of litigation, when we signedthe settlement agreement, a senior vice president of Beth-lehem Steel said to me, ‘You know, son, we didn’t knowyou were out there. We thought when we had a deal withthe Government we were safe.’

It is in the nature of governments to make deals likethat. Only citizen vigilance can make sure that environ-mental laws are enforced. And only when the courtsgive access, give effective remedies and use true one waycost shifting can citizens turn vigilance into successfulredress.

After we won dozens of cases, Bill Ruckelshaus, theDirector of the Environmental Protection Agency (EPA)called me down to Washington D.C. for a noon meeting.The EPA is the entity charged with enforcing environ-mental law at federal level. When I arrived I was told itwas to be a lunch meeting, and I expected a sandwichwith the Director. Instead I was shown into a large con-ference room, with the EPA’s enforcement lawyers waitingfor me. At the head of the vast room was Bill Ruckelshaus.As I sat down to my sandwich, he said, ‘Mr. Thornton, I’dlike you to give us a seminar on how you develop and winyour enforcement cases. We want to know. We seem tohave forgotten how to do it, but you have kept the torchburning.’

What followed at that lunch was a positive dialogue.What happened later was that the EPA got back into theenforcement business. A few years later we were able toend our own citizen enforcement project, because the Gov-ernment had taken the job back up.

It was because we embarrassed the Government that itstarted to fulfil its duty again. A small group of people haddone what large government teams were not doing. Thisspirited competition to make the laws work is just the kindof experiment in democracy that access to justice allows.When citizens have access to justice, they can play a vital

role in making the system work. They can protect the in-terests of the environment, when others cannot or will not.

This story shows the power of genuine one way costshifting in environmental cases. It was only because wecould get costs and fees that we could take such effectiveaction.

I should make clear that one way cost shifting in theUS system applies to cases against the Government as well.When a plaintiff convinces the court that the Governmenthas acted illegally or has failed to fulfil a mandatory duty,it will grant an injunction ordering the Government tocomply, and award costs including fees to the plaintiff.Long experience shows that governments – even ones ap-parently favourable to the environment – often fail to per-form their duties. Cases by citizens are frequently whatforces governments to fulfil their duty. And in the cases ofgovernments that actively oppose environmental benefit,such as the Bush administration, it is only the power ofcitizen litigation that can prevent the dismantling of workthat took decades to build.

Sadly, the ‘qualified’ cost shifting proposed in the Jack-son Review is so diluted that it will not improve access tojustice in the UK. If the Jackson reforms were adopted inthe way that seems most likely, the UK would still fail tocomply with the Aarhus Convention, because the costs ofusing the courts would still be prohibitively expensive.

It is worth noting that in the UK, it is not only coststhat keeps citizens from bringing cases like those againstBethlehem Steel. In the UK, there are several other barri-ers. First, judicial review does not permit cases against pri-vate persons including corporations, so citizens cannoteffectively enforce. Second, looking more widely at envi-ronmental cases, judicial review is overly narrow in scope.It does not allow the court to determine whether a decisionmaker (say the finder of fact in a planning matter) hasmade an erroneous decision, but only whether he has fol-lowed proper procedures. Third, injunctive relief is rarelyavailable against the Government. This is due to the fictionthat the sovereign can do no wrong. Life proves otherwise,and without the power of the court to order governmentsto fulfil its duties, citizens are often deprived of effectiveremedies.

Each of these barriers is important, as they each preventthe courts from delivering justice to citizens in environmen-tal cases. We at ClientEarth have therefore brought a caseagainst the UK before the Aarhus Compliance Committee inGeneva. The Committee has the power to review whetherthe legal systems of signatory countries meet the require-ments of access to justice guaranteed by the Convention. Weare presently awaiting the finding of the Committee. Re-turning to the issue of costs, because the UK is so out of linewith other countries, we hope for a positive outcome.

When it comes to environmental cases, the JacksonReview is a missed opportunity to provide the access tojustice the UK is bound to provide. The Aarhus Compli-ance Committee has the power to direct the UK to takethe right steps.

There is no solution to the costs problem so good asgenuine one way cost shifting. Only this way of dealingwith costs gives genuine access to citizens, who, when theyraise environmental interests against government and in-dustry, are necessarily in the position of David against Go-liath. Genuine one way cost shifting puts them in theposition to gain David’s outcome.

� James Thornton is a member of the bars of New York,California and the Supreme Court of the United Statesand a solicitor of England and Wales. He founded theCitizens' Enforcement Project at the Natural ResourcesDefense Council in New York where he brought and wonsome 80 federal lawsuits against corporations to enforcethe Clean Water Act. He is CEO of Client Earth, anorganization of activist lawyers committed to securing ahealthy planet www.clientearth.org

Pict

ure:

Jes

s H

urd

/ rep

ortd

igita

l.co.

uk


Planetaryslavery

‘This law of nature, being co-eval with mankindand dictated by God himself, is of course superiorin obligation to any other. It is binding over allthe globe, in all countries, and at all times: no

human laws are of any validity, if contrary to this; and suchof them as are valid derive all their force, and all their au-thority, mediately or immediately, from this original’. Sir William Blackstone, English judge and jurist, NaturalLaw Theory, 1761

The case for a legal framework for PlanetaryRightsSixty years ago the Universal Declaration of Human Rights(UDHR) was signed on the back of the humanitarian in-justices of the Second World War. That was a potent docu-ment that led to the implementation of human rightsinternationally. While not a treaty itself, the Declarationwas explicitly adopted for the purpose of defining themeaning of the words ‘fundamental freedoms’ and ‘humanrights’ appearing in the United Nations Charter, which isbinding on all member states. For this reason, the Univer-sal Declaration is a fundamental constitutive document ofthe United Nations. It provides the tools, nationally and in-ternationally, for lawyers seeking justice for those whosehuman rights are breached.

Just as the UDHR was born of a humanitarian crisis, sonow we have a planetary crisis. The need to protect andprevent further abuse to planet Earth is already translatinginto legislation in pockets of the world where extreme en-vironmental crisis has paved the way for new initiativessuch as Ecuador’s recent Bill of Nature’s Rights. But onecountry acting in isolation to uphold the laws of naturedoes not go far enough. Climate change – a symptom of thecrisis we face – is trans-boundary in nature and affects usall. That is why a Universal Declaration of Planetary Rightsis called for.

One of the proposed planetary rights would be the rightnot to be polluted. Such a right, applying equally to thesoils, the seas, the atmosphere as well as to humanity, hasenormous implications. Hard-hitting international legisla-tion such as this is necessary if we are to drastically curbthat which is so damaging. In a world where 78% of theworld’s excess greenhouse gases come from the creation offossil fuel, rendering the excess creation of such greenhousegases illegal will inevitably target the corporations whotrade in fossil fuel first.

Causality Encouraging steps are being taken. A recent ‘endangerment’finding by the US Environmental Protection Agency (EPA)could pave the way for the US Government to require busi-nesses that emit carbon dioxide and five other greenhousegases to make costly changes in machinery to reduce emis-sions – regardless of whether Congress passes pending cli-

by Polly Higgins

mate change legislation. The EPA declared that excess GHGemissions are to be now termed as ‘pollutants, which are adanger to public health’.

EPA action to regulate emissions will affect the US econ-omy more directly, and certainly more quickly, than anyglobal deal arising out of the ashes of the recently collapsedclimate negotiations. In effect, the right not to be pollutedis taking shape. Extension of that right as a planetary rightwould, in the case of the atmosphere, pave the way forbetter regulation of airborne pollutants – and provide abetter tool with which to hang a breach. It is after all fareasier to take an air sample to establish whether there is anexcess of pollutants than it is to establish conclusively thecausal link to poor public health.

“One country acting inisolation to uphold thelaws of nature doesnot go far enough.Climate change – asymptom of the crisiswe face – is trans-boundary in natureand affects us all”


The Planet as a CommodityCorporations react well to legislative restrictions – it pro-vides them with the framework within which to work: theyare forced to reinvent their wheels rapidly and it affordsthe opportunity to call for (and receive) new subsidies toensure reinvention and compliance. The energy companiesof today have their eyes on the horizon. It is well recog-nized that the time is coming where international laws willprevent profiteering from that which is polluting. SirNicholas Stern recently berated governments for pander-ing to companies’ demands for self-regulating (and lengthy)transition periods, when in reality firm and legislatively de-terminative action is required. History clearly demonstratesthat voluntary business guidelines produce little more than

business as usual. Likewise, to address the problem by usingmarket mechanisms to restrict the emissions, or by simplyimplementing energy efficiency measures will not resolvethe problem. Protection on the enormous scale that is re-quired is not afforded by merely damaging a little less.

Two hundred years ago merchants howled at proposalsto abolish their profitable slave trade. Industry bewailedthat stopping the trade would lead to economic catastro-phe, with huge job losses and widespread public discon-tent. Alternative proposals were aired: leave it to marketforces to determine the numbers, self-regulation to ensureimproved conditions, introduce permit auctions, and if allthat was not sufficient a capping of slaves imported couldbe imposed with levied fines for breaches. Slaves, they said,were a necessity. Sound familiar? Two hundred years laterand the only difference between then and now is that in-stead of outlawing damaging polluting practices, they areallowed to flourish. Where human slavery was rendered il-legal, planetary slavery continues. Prime Minister WilliamPitt speaking in the House of Commons in 1783 bemoanedthe fact that ‘necessity is the plea for every infringement ofhuman freedom: it is the argument of tyrants, it is the creedof slaves’. Change but one word, and his lament rings alltoo true today.

The power of legislationLegislation as we know has enormous power to generate re-markable transformation. Within a year of abolition slavetraders began trading in other commodities such as tea andchina. A more recent example of such swift transformationcame during the Second World War in the US, when theautomobile industry was asked to apply their skills to themaking of planes for the war effort. Industry refused. Emer-gency legislation was thus passed overnight rendering theproduction of cars illegal; generous subsidies were givenand a short transition period was granted (a matter ofmonths). Engineering training was reduced from five yearsto just seven weeks, and hundreds of planes were expectedby the end of the first year. The number of planes ready tofly by December was ten times the initial specification.

There are lessons to be learned here from history, and yetwe repeat the same mistakes. The collapse of the COP 15climate negotiations in Copenhagen may just have been thebest outcome of all. A powerful wake up call for individualnation action. The question is, will nations now stop trad-ing and determine to act swiftly and decisively?

�Polly Higgins is a barrister, earth jurisprudence expert andadvocate of planetary rights, who addressed the UnitedNations on the call for a Universal Declaration of PlanetaryRights in November 2008. Bolivia has taken up the mantleand is proposing such a declaration to the GeneralAssembly. Polly is also the initiator of the People’sDeclaration and the Planet Earth Trust. For more information,go to www.treeshaverightstoo.com

Pict

ure:

Jes

s H

urd

/ rep

ortd

igita

l.co.

uk


On 26th October 2009, theAppeals Chamber of the SpecialCourt for Sierra Leone (SCSL)upheld the convictions of threemembers of Sierra Leone’s Revo-lutionary United Front (RUF).

Former RUF interim leader, Issa Hassan Sesay,and RUF Commander, Morris Kallon, were eachconvicted in February 2009 of 16 counts of warcrimes and crimes against humanity for atrocitiescommitted during the decade-long civil war. For-mer RUF Security Chief Augustine Gbao wasconvicted on 14 counts. In April 2009, Sesay wassentenced to 52 years’ imprisonment, Kallon to40 years, and Gbao to 25 years. The AppealsChamber unanimously upheld the total terms ofimprisonment, although it overturned Gbao’sconviction for collective punishments and foundthat he was not responsible for one of the twoattacks against UN peacekeepers for which hehad been convicted.

The SCSL is one of a generation of tribunalsprosecuting crimes against humanity and warcrimes in the name of the international com-munity. Others include the International Crim-inal Tribunals for the Former Yugoslavia andfor Rwanda (ICTY and ICTR). Like the idea ofan internationally shared morality that they

espouse, they are a curiously modern phenom-enon. They seem to have quickly captured theimagination as lone bringers of justice in aninternational wilderness of brutality – until thelatter half of the last century, no more than autopian dream. Such institutions have beenlauded as a step forward of gargantuan pro-portions in the protection and promotion ofhuman rights.

These benefits are perceived to be reinforcedby the innovations in the RUF judgments,including the first ever convictions by an inter-national tribunal for forced marriage as a crimeagainst humanity and for attacks against UNpeacekeepers. The Appeals Chamber alsoupheld convictions for the recruitment and useof child soldiers – another of the ‘firsts’ achievedby the SCSL.

That deals, in large part, with what theSCSL, and the RUF judgment in particular, hasdone. The convictions rendered and the pun-ishment meted out are the most visible of acourt’s activities, but the innovation that char-acterises the SCSL does not end there. This arti-cle deals with how an international tribunalwhich is small and relatively modest has exertedsuch an impact – and considers the effects of itsendeavours.

‘Joint criminal enterprise’ and thespectre of collective responsibilityAlmost all of the convictions in the RUF casewere rendered on the basis of ‘joint criminalenterprise’ (JCE). While JCE is often describedas particular to international tribunals, theaccompanying issues are of profound relevanceelsewhere – not least in the criminal law of Eng-land and Wales and its resurgent use of jointenterprise liability in dealing with gangs.

In its essence, the concept of JCE is simple.It applies where an accused participated in aplan, common to a plurality of persons, whichamounted to or involved the commission of acrime. The accused is held liable, as if havingcommitted the crime, for the acts of otherswhich fall within the joint enterprise.

There is a familiar and pressing concernhere: collective criminal responsibility, and thearbitrary treatment it inflicts by punishing inthe absence of clear individual culpability.Quite simply, in the words of a teenager on theBBC’s Panorama: ‘Why are you responsible forsomeone else’s actions?’ Indeed, until the SCSLbegan its innovations, established JCE jurispru-dence rigorously demanded individual culpa-bility through two requirements. First, themens rea requirement that the accused

HUMANRIGHTSINTHERUFCASEATTHESPECIAby Clark Kingsley


Former RUF interimleader Issa HassanSesay and formerRUF Security ChiefAugustine Gbaopictured in court.

intended the commission of the crime andintended to participate in a common planaimed as such. Second, the accused contributedsignificantly to realisation of the common pur-pose. These two requirements seek to ensurethat the attribution of responsibility to a personfor a criminal outcome is done in a meaningful,fair manner.

In any event, JCE was not originally aboutcollective responsibility at all. The paradigm ofits application is the Tadic case at the ICTY.Here, a group of armed men entered Jaskici vil-lage in the Prijedor region of Bosnia, sum-moned residents from their homes, and sepa-rated the men from the women and children.The men were beaten and removed from thevillage. After the group left, five men werefound dead. Although several witnesses identi-fied Dusko Tadic as one of the group who hadentered Jaskici, none could personally link himto these killings. Nonetheless, it was held thatTadic was criminally responsible for the deathsof these five men. In that case, the joint enter-prise operated in a relatively small area, so thatthe Court could be sure that it was indeed ajoint enterprise, and JCE’s attribution require-ments required proof that Tadic was individu-ally culpable before convicting him.

Where, by contrast, the joint enterprise isalleged to have operated not just in one villagebut across Sierra Leone and throughout thechaos of its civil war, there are more difficultiesin applying JCE. But the challenges do not endthere. The RUF was a highly fragmentedorganisation such that – as the Trial Chamberheard – it was not, in any plausible sense, a sin-gle entity. In addition, membership of the jointenterprise was said to include members of theArmed Forces Revolutionary Council (AFRC),against whom the RUF fought directly at times.One would surely expect, then, great emphasisupon JCE’s well-established attributionrequirements in the SCSL’s reasoning.

Not so. In a judgment which has potentiallyrevolutionised JCE law, liability was imposedin the absence of any finding that a defendantshared the intent of the other members of thejoint enterprise to commit the crimes deemed tobe within the common purpose. Let us not for-get that liability through JCE is considered aform of commission – thus rendering it moreculpable than other forms of liability. For thefirst time, JCE liability could arise for crimes inthe absence of any agreement by the accused –explicit or implicit – with the intentions of theperpetrators. The position is similarly novel as

NTHEBALANCE?ALCOURTFORSIERRALEONE

caption to go here

�


regards the ‘significant contribution’ require-ment. In the view of the SCSL, JCE liabilityarises even for an accused who had no influ-ence in areas of the country where most of thecrimes were committed. Equally irrelevant, itseems, is the lack of contribution to the crimes.

Ensuring that punishment is meted out onlywhere there is individual culpability is as fun-damental as the rule of law itself. This hasalways been the pressing concern about collec-tive responsibility – and is perhaps the key rea-son why ‘collective punishment’ is an interna-tional crime. We must not lose sight of this inattempting to redress harms caused by collec-tive action – whether labelled ‘terrorist’, ‘gang’,‘rebel’ or otherwise. Failure to demand indi-vidual culpability before we punish means arbi-trary treatment of the accused for an utterlyillusory ‘greater good’, and ultimately, thedeeper entrenchment of human rights viola-tions.

A fair trial?Some might think that the point is overstated.Courts are not infallible: has the SCSL not sim-ply made a mistake? Further analysis revealsthat the explanation for the RUF judgment’snovelties is more insidious and systemic, andfollows from the erosion of basic proceduralsafeguards.

First, the indictment. Lead Counsel forSesay, Wayne Jordash, called the RUF indict-ment the ‘least specified indictment at any tri-bunal’. The lack of detail was, however,accepted by the Trial Chamber and reaffirmedby the Appeals Chamber. It contains no morethan a bare assertion of responsibility pursuantto every mode of responsibility known to inter-national law. The details of the ‘joint enterprise’in the indictment were essentially an assertionthat there occurred a campaign of violence,with no obvious unifying feature other than theaim to gain power in Sierra Leone. This, initself, is not a crime. The indictment revealedlittle about the nature and scope of the allegedcommon purpose. And as for the link betweenaccused persons and crime, the de jure status ofthe accused, in relation to an army of thou-sands, was the sole pleaded nexus to thousandsof crimes.

The Appeals Chamber determined that the

deficiencies in the pleading of material facts didnot matter. This, combined with the late dis-closure of charges through witness statements,would fatally undermine the preparation ofany defence. The Sesay Defence, for example,listed at appeal hundreds of lost opportunitiesfor cross-examination. The Appeals Chambersimply dismissed them for being over a pagelimit.

Next, it became clear, in part from admis-sions in the Charles Taylor case in The Hague(which is also part of the Special Court), thatthe Prosecution was paying many of the pros-ecution witnesses. Any benefits provided by thecourt to witnesses ought strictly to be admin-istered from the Victims and Witnesses Section,which is independent of both Prosecution andDefence. Nevertheless, the issue was dismissedwithout substantive examination by the Trialand Appeal Chamber. Apparently the Defencefailed to raise the point early enough or clearlyenough.

At the same time, the Trial Chamber heardrobust examination of Prosecution witnesses,many of whom were ex-rebels and perpetratorsof horrific crimes. Their evidence, unsurpris-ingly, was exposed as tainted by the influenceof a plethora of extraneous motivations, notleast attempts to exculpate themselves.Nonetheless, the Trial Chamber unquestion-ingly accepted it, and provided no reasons fordoing so, and the Appeals Chamber reaffirmedthis. In a judgment of 800 pages, the entireSesay Defence case of 60 witnesses and sevenmonths of in-court testimony was dismissed in16 paragraphs.

Perhaps it is not surprising that a judgementthat, in substance, violated the rights of theaccused arose from a process that did likewise.Why, then, did such a process arise? Someargue for more transparency and scrutiny.Indeed, there are clear differences in the qualityof the process in those tribunals at which inter-national attention is focused – notably theICTY. Practical improvements might include,for example, institutional separation of the trialand appellate jurisdictions, perhaps by creatingan ‘International Criminal Appeals Court’,common to all of the various tribunals. Thereappears to be, however, a more fundamentalexplanation.

‘Ending impunity’ – or reinforcing itscauses?Underpinning verdict, reasoning and process, isa philosophy based on ending impunity.Dragged along by the emotional current ofpotentially realising such a weighty and noblecause, many are drawn to ask how importantstrict adherence to human rights is.

No one could possibly diminish the immenseand incomprehensible suffering caused by theatrocities with which international tribunalsdeal. If the process is somewhat less than ideal,the argument goes, surely it is worth it for the‘greater good’ – a greater good which is often,itself, dressed in the language of human rights.

Foregone conclusion is an idea that dogsinternational justice. At Nuremberg, this wasdue to the clear ‘victors’ justice’ aspect of pro-ceedings. Nowadays, a number of factors con-tribute: horrific events and the concomitantdesire to punish, inordinately expensive tri-bunals and a small number of persons tried.

But the utopian dream of ending impunitycarries greater dangers. We must look beyondthe outcome of these crimes: death, depredationand horror. In fact, the very thing that distin-guishes crimes against humanity and otherinternational crimes is that they are, in the viewof the perpetrators, political acts done in serviceof a utopia – acts done in order to be rid of ene-mies. This willingness to get rid of enemiesthrough any means necessary reveals an unex-pected, and shocking, link between indifferenceabout fairness in international justice and theperpetration of atrocities that it seeks to punish.And a criminal trial which uses the accused asno more than a means to an end bears many ofthe hallmarks – not of addressing human rightsviolations, but of those violations themselves.

In other words, right process – withentrenched human rights guarantees for theaccused – is not just obscure technicality and ameans to a valuable end, but is the very essenceof what we seek from international courts. It istime to re-assess our dream of ending impunity,before it becomes entrenched in the process ofthe International Criminal Court. Cases setprecedents – and can change them.

�Clark Kingsley is a member of the HaldaneSociety of Socialist Lawyers.

�

Name (caps) ......................................................

Address ............................................................

..........................................................................

..........................................................................

..........................................................................

Postcode ..........................................................

Email ..................................................................

�� I would like to join/renew my membership of the Haldane SocietyRate (tick which one applies): �� Students/pupils/trainees/unwaged/outside UK: £20�� Practising barristers/solicitors/other employed: £50 �� Senior lawyers (15 years post-qualification): £80�� Trade unions/libraries/commercial organisations: £100

Please transfer from my account no:........................................................

Name of Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Sort code �� /�� /��

Address (of branch) ..................................................................................

To the credit of: Haldane Society of Socialist Lawyers, Account No 29214008, National Girobank, Bootle, Merseyside G1R 0AA (sorting code 72 00 05) The sum of £....................now and thereafter on the same date each month/year* until cancelled by me in writing (delete where applicable)

Signed.................................................................. Date..............................

Please send this form to: Membership Secretary, Haldane Society, PO Box 57055, London EC1P 1AF

Please cancel all previous standing ordersto the Haldane Society of Socialist Lawyers

JointheHaldaneSocietyofSocialistLawyers

StandingOrder

Nevermissanissue

Scan or photocopy this page if you don’t want to rip up your copy of

Socialist Lawyer

India has a vital stake incombating climate changebecause it is especially vulnerable

to its effects. With its 7,500 km-long coastline, many large flood-plains of monsoon-fed rivers andhigh dependence on agriculture,India will be heavily affected bycyclones, coastal storms, erraticrainfall patterns and by theincreased frequency and severityof floods and droughts. In theHimalayas (described as theearth’s ‘Third Pole’ because theystore the largest volume offreshwater after the Arctic andAntarctic regions) glaciers areretreating, the snow season isshortening, the snow-line movingup and average temperaturesrising at a rate four times higherthan the global averagetemperature rise. The effect will bea huge diminution in the supply offreshwater into the Indian sub-continent, affecting foodproduction and every aspect ofdaily life. 1.5 billion people live inthe basins of rivers that rise in theGreater Himalayas.

The Indian Government’sbehaviour at Copenhagen couldnot have been more wilfully blindto the urgency of tackling climatechange. It went into Copenhagenbearing only a promise to ensurethat its per capita emissionswould never exceed per capitaemissions in the richindustrialised North, and cameout of the Summit as one of the

parties to blame for the overallfailure.

There are two big problemswith the ‘per capita emissions’argument. The first is that we inthe North are over-consuming andhave to change our own life-styles,so pegging Indian emissions to ourover-consuming lifestyles isunsustainable. The second is thatthe figures for per capita emissionsin India are not equitablydistributed. India’s rich, the toptenth of the population, areresponsible for a yearly 3.5 percent rise in emissions, more thanthe global average of 2 per cent.They consume cars, white goods,electronic equipment, fridges, airconditioners etc. Meanwhile halfof India’s poor have no access to areliable electricity supply. India’sapproach reflects the view of therich that they can buy themselvesout of the effects of climate change.

Even if such a view wereequitable, it’s not deliverable. Justas the North cannot escape theeffects of climate change by buyingup unused carbon emissions frompoorer countries, so too the richcannot live entirely insulated lives.They can wall themselves off fromthe poor by living in gatedcommunities and travelling inprivate cars. But they still live inheavily polluted and congestedcities and the potentialconsequences of climate changethreaten us all.

For the poor in India, theeffects of climate change arealready being felt. There has beena sharp decrease in lentil-production and so significantinflation in the price of foodstaples. Plastic litter is everywherein India. Water scarcity has led toviolent conflicts, whilstrelationships between regions overthe sharing of river waters canbecome unsettled. The thought ofa conflict between Pakistan andIndia over the water resources of

the Indus River, which rises inTibet and flows through Kashmir,is a frightening one.

Praful Bidwai is a well-knownIndian columnist, environmentalactivist and prominent anti-nuclear campaigner. An IndiaThat Can Say Yes was writtenbefore Copenhagen, and makesthe case for a climate changestrategy that is not market-based,but founded on principles ofequity, democracy andsustainability. A well-designed‘Climate Transition Programme’would encourage energyefficiency, investigate methods ofreducing the consumption of therich, and develop sustainabletechnology in agriculture andother areas. It would be based onthe principle that the poor havethe right to sustainabledevelopment and that the rich –both the rich North and India’sown rich – have a responsibilityboth to cut our emissions and toundertake a significantly higherproprietor of the global costs ofremedial action. It would bedemocratic and driven from thegrass-roots.

The Indian Government’s

National Action Plan on ClimateChange (2008) did not reflect thatapproach. Save for a useful targetof making solar energy 10 to 12per cent of total electricitygeneration, it showed a continuedreliance on large-scale dam andcanal projects, and a frighteningbelief that existing rivers can beinterlinked. The plan displayed nosense that the Government hadgrasped the gravity of the climatecrisis or the urgency with which itshould be acting. Mostdisappointingly of all, there wasno commitment to equity orredistribution. The plan took forgranted that existing consumptionpatterns and elite lifestyles wouldremain.

A second edition is expected,updated to include reflections onCopenhagen. The publication isfree, at least in India, and can befound at www.prafulbidwai.org/index.php?pages/Books. It is wellworth reading for a view from theglobal South that rejects marketsolutions and places responsibilityfor action on its own governmentas well as on the governments ofthe North.� Liz Davies

Reviews


Inside theRevolution: AJourney intothe Heart ofVenezuela65mins; 2009;Director: PabloNavarrete;Alborada Films

Recent research conducted bythe University of the West ofEngland on the BBC’s

reporting on Venezuela over thelast 10 years has pointed towardthe larger issue of an imbalancedpicture of Venezuela emergingfrom mainstream news sources. As the research suggests, thisreportage rarely focuses on socialprogress within Venezuela underChavez. Re-addressing some ofthis imbalance is Pablo Navarrete’sthoughtful documentary ‘Insidethe Revolution’.

The film was shot in November2008 on the eve of regional elections.

By February 2009 Hugo Chavez hadbeen in power for 10 years. Thedirector does not shy away fromcriticism. The film opens by statingthat ‘...Chavez’s revolution has beenunable to deal with some ofVenezuela’s long standing problemssuch as poor public services,corruption and crime which hascaused increasing frustrationamongst his supporters and thosesympathetic to his government.’Institutional corruption is a pointrepeated later in the film throughfootage of a hip-hop concertscreened on the weekly Presidentialbroadcast ‘Aló Presidente.’

The film charts the rise ofChavez to power including thefailed army coup attempt in 1992in which Chavez was one of theleaders. The interview Chavezgave following the failed coupattempt was broadcast by theVenezuelan national media at hisbehest. It lasted only a minute butcoined the phrase ‘por ahora’, ‘for

An India ThatCan Say Yes:A Climate-ResponsibleDevelopmentAgenda ForCopenhagenAnd Beyond

by Praful Bidwai. Henrich BollStiftung, The Green PoliticalFoundation, www.prafulbidwai.org/index.php?pages/Books

No market solutionto climate change


Reviews

now’, which is credited with givingimpetus to Venezuela’s left tomobilise for change in a countrydebilitated by harsh economicreforms. Chavez was imprisonedfrom 1992 – 1994 for his part inthe coup. He emerged with acommitment to social progressthrough the electoral process.When he was elected as Presidentin 1998 just 3% of Venezuela’slandowners controlled 70% of thecountry’s agricultural land.

By the end of 2006 Chavez hadsurvived a failed coup attempt in2002, been re-elected as Presidentand won a referendum triggeredby the opposition in 2004. Theintention of the 2004 referendumwas to oust him from office via theballot box. As the film points out,the 2004 vote was his seventhconsecutive election victory sincecoming to power in 1998.

The film raises the pertinentquestion as to whether theBolivarian revolution can surviveonce Chavez departs fromgovernment. Javier Biardeau,Professor of Sociology at theCentral University of Venezuela, isinterviewed in the film andemphasises the need to preventany shift to authoritarianism:‘When a process of transition tosocialism implies a greater level ofdemocratisation in the movement,or in classic terms, in the vanguarddriving the process of change, thisvanguard should be far moredemocratic than it has beenhistorically because that was oneof the mistakes that one canidentify from an evaluation ofsocialism in the 20th century.’

Navarrete first screened thefilm earlier in 2009 to packedaudiences at SOAS. Since then thedirector has taken the film on touraround the UK and most recentlyto the US. ‘Inside the Revolution’is a fascinating addition to thediscourse on Venezuelan politics.It is a valuable companion to twoother recent documentaries onVenezuela – ‘The Revolution WillNot be Televised’ (2002) and JohnPilger’s ‘The War on Democracy’(2008). For those interested, thefilm can be purchased direct fromwww.alborada.net/alboradafilms/� Tim Potter

Pete Postlethwaitein ‘The Age ofStupid’: superb.

The Age of Stupid90 mins; 2008; UK Cert 12A;Director: Franny Armstrong; Cast:Pete Postlethwaite

This film begins with anominous countdown endingin the year 2055, at a time

when Man’s impact has wroughtcatastrophic environmentaldestruction upon the planet.London is submerged byfloodwater, the Alps are reducedto bare rock, Las Vegas isdesertified, and Delhi is devoid ofall but carrions and decay. It is agrim future to which the film’swriter and director, FrannyArmstrong, places the protagonistof the story, played by the superbPete Postlethwaite.

An archivist at the GlobalArchive – a huge platform in thebarren Arctic containing all theworld’s national museumcollections and all specimens ofextinct species – Postlethwaite’scharacter acts as our guide to theunfolding events of the not-too-distant future.

Through the prism of aninteractive display, the archivistbegins the story in the year 2005with an enthusiastic young Indianentrepreneur hell-bent on beingthe Subcontinent’s answer toEasyjet. This is the only section ofthe film that comes anything closeto being comic, but a seriousmessage underlies it: if the entireworld’s population is to adopt the

current opulence of the Westernlifestyle, we are all doomed.

The docu-film is centred uponthis message and four otherpersonal stories (interspersed withreal news coverage) to make theworst case scenario seem scarilybelievable. This is of course theimpact the filmmakers are hopingfor, but for all the shocking imagesand neat graphics, there is verylittle instructive science.

While there can be no seriousargument against the propositionthat climate change is occurring asa result of Man’s activities, there isstill much to be scientificallydetermined in relation to theextent and time sequence of suchchange. However, the viewer is leftwith no alternative but to concludethat contemporary events such asHurricane Katrina are by-productsof Man’s actions.

The only portion of the film thatweaves in any scientific research isa rolling interview with MarkLynas. A renowned expert onclimate change issues, he was anadviser to the President of theMaldives at Copenhagen and nowassists in that country’s effort to bethe first carbon-neutral country by2019. However, he is not a climatescientist.

Of the film’s six personalstories, five are brilliant in theirmini-explorations of the plight ofthe planet and humankind. Thesestories range from a British family

and their mountain guide’sexperiences of increasing ablationin the French Alps, to thehorrendous human plight in theoil-ravaged region of the NigerDelta, to the heroic actions of apetroleum bioengineer in theawake of Hurricane Katrina.

A major difficulty with the filmis the segment about the invasionof Iraq and its aftermath. It focusesprincipally on the lives of childrenmade fatherless by the conflict.The overarching theme is thatMan’s hunger for oil was the causeof the invasion. However, thefilm’s portrayal of the conflict ismisleadingly simplistic anddistracts from the environmentalmessage that it tries to convey.

The film also falls sadly shorton advancing solutions to the crisiswe face. An international cap oncarbon emissions is proposedhaphazardly, while a fleetingglance is given to the idea ofpersonal carbon allowances.Personal action is certainly themessage put forward by the Britishfamily on their return from theAlps as they endeavour to addresstheir environmentally unfriendlylifestyles, while campaigning forclean energy in the face of localopposition. There is a brilliantrevelatory segment on themonopoly that plastic – an oil-based material – has on our dailylives. This will cause the users ofwater bottles intense guilt.

Postlethwaite ends the film byconsidering why the destiny ofhumanity is a scorched earthrather than a planetary paradise.Why did we not save ourselveswhen we had the chance? Whatkind of species continues tofacilitate its own destruction? Theveracity of the questions posed istruly haunting. ‘Surprising that thefinal act of our existence should besuicide’, he remarks.

In summary, the McLibeldirector has made a deeplythought-provoking film thatdeserves an audience far largerthan it is likely to receive. Themessage is overwhelmingly clear:let us act now to ensure that thiscautionary tale does not predictour own future.� Chris Loxton

HaldaneSocietyof SocialistLawyers

Protecting the environment:the legal challenges

Human Rights Lecture

Speakers to be confirmedThursday 22nd April 2010 6.30–8.30pm

College of Law, 14 Store Street London WC1E 7DE (nearest tube Goodge Street)

Admission free. £10 charge for practitioners wanting CPD points.

The Law versus the Trade Unions:

Reflections on the Past andStrategies for the Future

Lord Wedderburn and Jim Mortimer inconversation with John Hendy QC

Thursday 27th May 2010, 6.30pmat Congress House, Great Russell Street, London WC1

The speakers will discuss the trade unions' relationship with the law and legal strategies,including thoughts on the 1984 – 1985 miners' strike, legal assaults on the right to strike and

other forms of collective action, along with the growing emphasis on individual redressthrough employment tribunals. In the present context of a severe economic crisis and

increased attacks on workers, this meeting aims to equip a new generation with lessonslearnt on how to both use and confront the law in the struggles ahead.

Further information from www.haldane.org

CLIMATE CHANGE - Squarespace · India and climate change, ... ([email protected]) Membership...

Documents

Transcript of CLIMATE CHANGE - Squarespace · India and climate change, ... ([email protected]) Membership...