Category Archives: Justice

Why are these so few strikes? When will there be more?

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There was a time when I, and many of my friends, believed that socialism would come about principally through a continuous process of trade union radicalisation with small, sectional strikes leading to larger, industry-wide ones, and then national strikes. Workplace struggles would become successively more common, and more successful. Ultimately, the workers would finally stream out of the factories to take over the whole world.

For much of the past 30 years, the continuing holding of that belief has involved a certain denial of reality. Every small strike that took place I personally welcomed as the start of a generalised upturn – hoping there would be a direct route from a single strike to the mass strike and then to the revolution. It was not just a matter of reading too much into short, localised disputes. I remember, 25 years ago, being much comforted by a talk given to a set of statistics which appeared to show that the growing tendency for jobs to become more precarious was in certain ways limited. It seemed from the figures that young workers were speeding through a series of temporary or part-time contracts before settling on fixed-term, permanent jobs at around 30, and then sticking to them with no less determination than all the generations that had preceded them. The interpretation of the figures may or may not have been correct, then or now – that is not my point – what I remember rather is the physical sense of relief I felt in my heart and lungs at encountering a serious explanation which reaffirmed my existing beliefs. This was not a healthy state to be in…

The lack of strikes matters not just if class struggle is seen in offensive terms, but also if it you follow its defensive aspect. Every government of the past fifty years has attempted to attack some aspect of the welfare state – when they have been defeated, it has usually been because a group of workers formed an alliance to protect (eg) abortion rights (in 1979). When strikes are low, it makes it harder to organise effective resistance.

When mass strikes did not happen, the challenge became to establish a different sort of optimism – a more guarded sense of hope, a surface caution beneath which there lurked a willingness to discard everything when necessary in the hope of being part of the single moment at which the world would turn. I think Daniel Bensaid had something similar in mind when speaking of revolutionary “impatience”: a fusion of optimism and seeming disdain in which the former was always waiting to subordinate the latter.

There is something of the same spirit in a recent article by Simon Joyce, which explains in compelling detail how mistaken a 30 year perspective of imminent mass strikes has been. He writes: “the current low level of strikes is unprecedented in British history. Official records of strikes in the UK have been kept since 1893 and record numerous ups and downs, periods of calm and sudden upsurges. Seen in this perspective, the last 20 years are exceptional. Never before has a low-strike period lasted so long.”

He goes on to insist that the present system of low strikes is stable: “once in place, institutional arrangements for conducting relations between unions and employers tend to be fairly robust and are only altered in ‘times of great crisis’. It is likely that it will take some type of wider social or political crisis significantly to upset the current institutional arrangements”. In so arguing, Joyce is undoubtedly right. I am sure some readers will disagree with him, even if they do not say so in public. A tendency could not change its 30-year perspective without some disagreement as to the new approach to take. But the people who disagree with him are projecting their wishes onto reality rather than engaging with the world in which they live.

Where I think there is space for further discussion is in Joyce’s explanations for the decline in strike figures since 1991. First, a large part of Joyce’s analysis is given over to the package of employment law changes which came in between the Heath and Thatcher governments (under Heath, the right to take an unfair dismissal claim to the then industrial tribunals, under Thatcher the anti-union laws, especially the balloting requirement for strikes).

These are part of the picture, but the relationship between law and society is subtle, and I would be critical of anyone who argued, for example, simply that “more law” must mean “fewer strikes”. (Or conversely, that the retreat of law from industrial relations, represented by the decline in ET figures since fees were introduced recently, will – by itself – make strikes more likely).

In an old book, I once set out the sociologists’ concept of “juridification”, ie the process where disputes which are seen as fundamentally non-legal and are resolved without litigation become things which are dealt with in the courts. Juridification implies its opposite, “de-juridification”, i.e. when things which were once treated as a legal question stop being so. The point of invoking either concept is that the last 150 years of workplace history in Britain gives examples of both dynamics, and in particular of occasions when a big opening up of legal opportunities for unions or for workers has not resulted in juridification. EG on both sides of the 1914-1918 war the ruling class and the state made serious efforts at legalising industrial relations – by giving unions incentives to fight battles in court. But there was no meaningful take-up of these opportunities and strikes remained ubiquitous.

Undoubtedly the Coalition has engaged in a systematic campaign of de-juridification. In an early draft of the same book, before the Coalition government had even been elected, I speculated as to how the Tories might implement what were then New Labour’s vaguer proposals for dejuridification and joked in a bitter spirit that what would be needed would be a system of criminal penalties for those who dared to bring tribunal claims – say, a £500 fine for anyone who took one case to a Tribunal, and jail terms for those who brought a second. Of course, politics turned out even worse than my satire, in that the fine for claimants (the “fee”) has been set at nearly three times higher than the level had guessed.

After decades of individual employment rights, it is almost certain that the dejuridification of dismissal rights will not result in a simple process whereby unions simply take up dismissals and strike over them, as if the entire preceding period of 40 years had simply not happened. Instead, what we are actually seeing is a very clear process by which unions are trying to make the best of what is left of the old Tribunal system – so while the headline figures for the decline in Tribunal claims is very high, this is masked by a series of attempts by unions to keep on going as if nothing had happened. These tactics of “making do” including lobbying Labour and the SNP for a reversal of fees; and a judicial review brought by UNISON (so far unsuccessful at 3 court hearings) to declare fees unlawful. Most significantly of all, unions have so far largely paid the fees on their members’ behalf, with the result that despite the very sharp feel in overall Tribunal cases, it seems that the number of cases brought by unions is holding up at more or less the levels they were before. If that process continues, as on my prediction it will (assuming Labour does not simply come back in and abolish fees), it could have all sorts of further unintended consequences. It could for example make union membership significantly more attractive than it has been to non-members in organised workplaces; since the union will subsidise a tribunal hearing which members could never afford themselves. It would also operate a vast cost on unions, who would have to pay thousands of tribunal fees and millions of pounds a year. What we are not seeing – yet – is any process of unions striking over cases that they would a year ago it would have been economically wiser to take to Tribunal. I do not think that will happen without other, larger changes in the relationship between workers and employers in the workplace.

Joyce is right that the anti-union laws have placed an additional pressure on the bureaucracy to police its own members. This is almost the one place where I think it is useful to speak of the memory of the 1980s, which is felt much more keenly within this level than in the typical workplace. Hundreds of senior trade unionists remember the sequestration of the once-massive funds of the miners’ union, and this memory places an enormous pressure on the individual bureaucrat not to mismanage a ballot where, it is assumed, the entire resources of the whole union could be at stake.

But this is not the only problem of the anti-union laws: they are costly, they are slow (amounting to, in effect, a statutory one-month cooling down period between the original decision to strike and any outcome), and they are intended to prevent the very strikes that were most effective in the 1950s, and 1960s, ie localised, rapid strikes by specific sections of workers about smaller issues as well as large ones.

I agree with Joyce that the left needs to give a much larger commitment to campaigns for the repeal of the anti-union laws, but having played a very modest part in one or two of these initiatives, we need to recognise how isolated the interest presently is in repeal – either within the unions themselves or, especially, among committed activists on the left but outside the trade unions. There are good examples on the left in recent years of causes which were isolated to specific groups but have acquired a more general significance – eg Defend the Right to Protest, set up around what once seemed the relatively narrow, immediate issue of the criminalisation of the 2010 students protests – any serious critique of the anti-union laws would rapidly founder if it was just the trade unions with their existing fiefdoms, rivalries and aging activist base.

Joyce makes good points about the link between low inflation and few strikes. Historically, medium-level inflation has been associated with policies of (modest) redistribution from the rich to the working class. We forget on the left just how important low inflation (“monetarism”) was to the early Thatcher governments as a strategy for a more radical kind of class rule. The left in general should be better at exposing this ongoing fixation, which is amongst its other problems also a partial cause of the present stagnation of the European and British economies.

I also think he is right to work into the equation the part played by unemployment. Again, it is a regret that no-one on the left ever seems to sit down and try to calculate or still less publicise how many people in Britain are now unemployed. We have allowed a situation of mass unemployment to be treated as normal which few recent generations would have tolerated.

A further, modest point of disagreement is where Joyce, despite focussing on what he terms “economic factors” resists any idea that the post-1979 economy is in any meaningful extent different from that which preceded it. In particular, he resists the characterisation of the present as a “neoliberal” capitalist economy, as distinct from the post-war state capitalist, welfare state, economy.

To an extent, his own developed argument makes this a meaningless distinction – after all, as soon as you recognise that there are significant dynamics such as low inflation and high unemployment, you are starting to accept that the industrial economy runs on – subtly – different lines from before.

Moreover, if you understand industrial disputes in social activist terms, as Joyce does, then the key issue when workers consider when deciding for or against striking is whether they will win. The “confidence” approach suggests that winning is simply a matter of will, workers with the greatest confidence will take the most radical steps (unofficial rather than official, continuous rather than discontinuous action) and that these will be the most effective. Now, this idea brings certain insights; clearly, to say from the outset that certain forms of strike are impossible is to reduce the choice of protest actions available to potential strikers, and this reduces their prospects of winning. But, equally clearly, among the reasons why strikes have lost in the last 40 years are some economic factors which are primary to and causative of workers’ lack of confidence. Even if we just limit ourselves to Joyce’s two principal economic factors, unemployment and inflation, they serve to discipline workers, unemployment especially, because it changes the calculation as to how much the workers will lose if the action is wholly ineffective and they are all dismissed.

For that reason, I look forward to the historian of the future who can go a little further in addressing the analytical weight to be placed on certain other features of our present economy. For example, Joyce alludes to size of establishment as a factor in the decline in strike levels. Could this have an importance within manufacturing in particular? The 99% fall in the number of strikes in coal since 50 years ago is down to the destruction of jobs in that industry; the 85% fall in the number of strikes in manufacturing over the same period cannot be down simply to the loss of jobs because there are still millions of people working in manufacturing. What has happened though is that there are very few employers, as there were in almost every medium-sized town in Britain just 30 years ago, with several thousand workers all doing relatively similar tasks. To this extent, the capacity for manufacturing workers to feel that they have a power to take on the employers is surely reduced as the size of the workplace is diminished. Could the demise of the giant plants (and therefore the large single-workplace strike) have had an effect in terms of the capacity of workers in one town to see someone else striking a large workplace, to hear about it and want to copy them? Where workplaces are smaller, it surely follows that strikes have less of a rallying effect as physical expressions of the different interests of capital and labour.

Or, to take another example, structural mass unemployment has not served simply to act as a caution for those worried about losing their jobs (what you might characterise as the “reserve army of labour” effect). Additionally, it has had an impact on the nature of the jobs that are being created. I have seen some estimates of job creation since 2008 which suggest that fewer than 5% of new jobs presently being created are full-time, permanent, direct employment. Even if these estimates are hopelessly wrong, and as many as 20% or 40% of new jobs are secure, the picture still remains that for hundreds of thousands of new workers, their industrial reality is not that of the Fordist economy, with secure jobs with long-term prospects.

Portraying some of labour’s difficulties as structural is not to close off the possibility of defeat, but to encourage people to think towards the dynamics of the present crisis which are superficially most obstructive to strikes and yet at the same time capable of challenge.

The issue which I have focussed on in repeated blog posts over the last 18 months is the precariousness of labour both because of its disciplinary aspect and its demobilising potential but also because it seems to me that it gives an incentive to groups of workers to organise. Joyce points to on one group of workers where strike rates have held up relatively well – those engaged in transport. The most successful strikes in history by this section of workers were precisely by groups of people who were precarious and yet wanted greater control over their working lives (carters, dockers…). And now we find ourselves in that same situation again, where the greatest incentive to protest is among groups that are outside what is presently assumed to be the centre of working class life. It seems to me almost certain that when the industrial sociologist looks back from 2035 in our direction, the disputes they will describe with the greatest affection will have something like the same character of those of 125 years ago, with struggle coming from those presently seen as marginal but eager to have the levels of job security which 40 years ago were universal.

In defence of the Human Rights Act

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My immediate response to the news of Conservative plans to abolish the Human Rights Act was “if they get away with that, I’m emigrating”. A day later I found myself thinking, “but they can’t abolish the right to life, the rule against slavery, the right to a free trial, surely all these principles will survive, won’t they?” Thinking the issue through; it would undoubtedly be a collective defeat, but not quite in a way that anyone in the press has ever properly explained.

For the institutions of “Europe” (I will be more precise shortly about which bits of Europe shortly), the repeal of the HRA on the terms the Conservatives propose – without withdrawal of the EU, but with the repatriation of decision-making to the domestic courts – would be an existential challenge. The Conservatives are saying that the Council of Europe will voluntarily consent to give up its present arrangement where the European Courts of Human Rights oversees the work of the national courts in ensuring that human rights are implemented. And the ECHR will accept in future some shadow existence where domestic governments are empowered to simply ignore any decisions the Court makes.

The ECHR system was not manufactured around the needs of the Conservative Party, it has grown in recent years in response to different needs. In 2013, 1600 complaints were made about decisions of the UK state; twice as many cases concerned Serbia, three times as many emanated from Poland and Romania, six times as many came from Turkey and Ukraine, and fifteen times as many came from citizens of Russia. The Conservative policy amounts to saying (for example), if the European Court of Human Rights is faced with a state like Hungary, which has practised open discrimination against Roma people, eg excluding their children from public education, and the ECHR finds that Hungary conduct has breached the basic human rights of its citizens, it would be better if Hungary could override the ECHR and continue with its discriminatory policies.

Such a change would make the ECHR, and the Council of Europe around which it is based, toothless and meaningless organisations. (It would hardly do anything for the legitimacy of the European Court of Justice, either).

There are bodies in the world which have paper “courts”, which make purely advisory declarations, which have no enforcement mechanism and which risk being subsequently ignored. There are also bodies which operate meaningful courts, with proper sanctions and widespread international respect. I struggle to think of any comparable situation in recent history where one of the latter has agreed – after 50 years of steady institutional growth – to give up its powers and become one of the former instead.

This context helps to explain why Conservative critics of the proposal to abolish the HRA have termed the plan “puerile” – if the policy is taken at face value, it is laughably silly to think that the Council of Europe would voluntarily consent to so diminishing the European Court of Human Rights. On the other hand, if you see the plan as a step in an internal Tory civil war, then it makes much more sense. After the next election, a majority government led by David Cameron is supposed to march on the European Union and demand a renegotiation of the European Treaty. If this fails, the government is supposed to call an in/out referendum on Britain’s continuing membership of the EU. How is anyone supposed to know whether Cameron’s negotiations have achieved enough so that the need for a referendum has been averted? The negotiated abolition (or not) of the European Court of Human Rights becomes a practical test of whether Cameron (distrusted by his fellow Tories as supposedly a closest Euro enthusiast) and his negotiators have actually delivered on their promises. “You failed to persuade Europe to give up the ECHR; therefore we have no choice but to leave.” The process is not intended to be a negotiation – any discussion is being scotched in advance – but the announcement of a series of ultimatums which no one could grant.

Activists on the left used to call this kind of impossibilist demand-making “transitional” – now we find the method being reversed by a Tory right which is almost incandescent in its anger with the world’s ongoing unease at the pace of neo-liberal encroachment.

I have written at length about the European aspect to HRA abolition, but how much would people living in Britain lose if the rights in the ECHR ceased to become “justiciable” ie things which a person can enforce?

One common approach of the commentators has been to point out how the rights in the ECHR were themselves drawn up by British jurists in the aftermath of the second world war to codify principles that were already in the British common law.  This may or may not make good politics – by pointing to the domestic origins of the ECHR, you make the Convention seems less threatening. But in so far as it gives the impression that the arrival of the HRA did nothing of significance, it hardly justifies many lawyers’ feeling that we could be at the start of a sustained attack on people’s rights, deeper than anything we have seen in over a century.

A second approach has been to focus on the detail of the policies, to point out that the Conservatives plan appears to be to give Parliament a permanent veto over rights analysis by the courts, to note that any rights now in the HRA (even to the extent that they are retained at all in a “British bill of rights”) are only going to be watered down, and to refer to a particularly worrying proposal that rights – in general – are to depend in future only on complying with certain (as yet unspecified) responsibilities. This, after all, is exactly where rights discourse became a cause capable of shaping the lives of millions: in rejection of the discourses of very many of European states in the 1930s and 1940s which said that every citizen has absolute rights except the Jews or the Communists who by their conduct have forfeited them. A right is a human right because it is a right to which everyone has access. If a right is not a right in defence of a despised group, then in what sense is it a right at all?

Deep within the proposed post-HRA landscape is the idea that UK judges, armed with the common law, can come to rights-compliant decisions without foreign interference so that most people are just as well protected as they ever were before. One thing which has been missing is the explanation that the HRA was much more of a change to the UK’s legal landscape than New Labour was ever willing to admit. Before the HRA, many but not all of the rights in the Convention had established deep roots in the UK common law. For example, fair trial rights: for centuries, the UK had jury trial, rules against hearsay evidence, the double jeopardy rule, etc. But because these originated in common law (ie decisions made by judges in individual cases), there was always something piecemeal about them. They were vulnerable to legislative attack – and two of the three protections I have mentioned barely exist any more.

The simple facts that the HRA is a single document, codified, and attached to an extensive Strasbourg case law, have made it a vastly preferable starting point – from the perspective of restraining bad decisions taken by government – than the incoherent, buried patchwork of domestic cases (the “common law”) that were all lawyers had before.

If it is true that the Convention had originally been drafted by lawyers who included many from the UK and even many Tories; it is also true that once the Convention had been analysed by a postwar cadre of Christian Democratic European judges who took its language seriously, it took on a number of aspects which protected rights with more care than the UK had ever done. There is no common law right of privacy; there is something akin to a right of privacy in article 8.

The blacklisted construction workers are fighting their battles on the ground of articles 8 (privacy) and 11 (freedom of association); the companies and the state which protected them respond that UK’s domestic law do not protect agency workers. The outlines of this conflict, with rights on the hand, and domestic legislation on the other, have been repeated continuously in recent years – in employment, housing, asylum and inquest law. Article 8 and article 6 combined have been interpreted as meaning that no tenant of the state can be evicted without at least an opportunity of explaining to the court why their personal circumstances are such that an eviction would be disproportionate. That understanding was won through the repeated overruling of the old House of Lords and is miles ahead of anything that domestic law reached.

It may even be under the Conservatives’ plans that every one of articles 2 to 14 has a counterpart in a new domestic statute, but each of these rights will be diminished, and the courts will have been given the strongest possible steer to protect decisions by government even where they are so bad that they are – at present – unlawful.

Ellison and undercover policing

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Mark Kennedy

I have just been watching the later stages of Theresa May’s statement to Parliament on the Ellison review into police corruption, surrounding the handling of the Stephen Lawrence inquiry.

Ellison has found that the Met falsely kept back from the Lawrence inquiry matters it should have disclosed, including its own investigations for corruption including officers associated with the original murder investigation. There was taking place at the same time a multi-million pound investigation into police corruption, Operation Othona, all the papers of which – Ellison reports – appear to have been shredded. Ellison intimates that the Othona investigation had showed a real likelihood that police officers who were in corrupt relationships with the father of one of Stephen Lawrence’s killers were indeed involved in the original investigation into his killing.

Ellison summarises the evidence that the Met were running an undercover officer (N81) in the Lawrence camp and adds to it the new and distasteful information that in August 1998 senior officers met with the spy so as to provide briefings for the Commissioner of the Metropolitan Police on the groups that were seeking to influence the Lawrence family.

Ellis finds: “The mere presence of an undercover MPS officer in the wider Lawrence family camp in such circumstances is highly questionable in terms of the appearance it creates of the MPS having a spy in the family’s camp. However, for a meeting to then be arranged to enable an in-depth discussion to take place about the Lawrences’ relationship with groups seeking to support their campaign, in order to help inform the MPS submissions to the Public Inquiry, was, in our assessment, a completely improper use of the knowledge the MPS had gained by the deployment of this officer.”

This of course goes on to raise the question of the activities of undercover spies in political protests, generally. Last week the Haldane Society of Socialist Lawyers initiated a public meeting of a new campaign “COPS“, at which there were speakers from the Blacklist Support Group, the Lawrence family, anti-fascist campaigns, and a number of women activists suing the Metropolitan police after they were tricked into intimate relationships. Some of the names of the undercover officers: including Mark Kennedy (pictured, top) and Bob Lambert have become notorious.

Ellison makes it clear that any further investigation of undercover officers’ activity should not be limited to the Lawrence family, for the following reasons:

“Although our terms of reference are limited to the role of undercover policing in the context of the Lawrence case, we feel bound to indicate that from the material that we have seen, it would be wrong to assume that undercover policing by the Special Demonstration Squad (SDS) (which involved deployment into a wide range of groups that presented a public disorder potential) may only present problems in the Lawrence case.”

“The SDS had, over many years, placed undercover officers inside a wide range of activist groups, targeted principally around the groups’ potential for committing, fomenting or providing intelligence on public disorder. A long-term undercover officer deployed into such a group had, necessarily, to play the convincing role of a genuine activist.”

“When the group concerned got involved in planning or committing potentially illegal activity, the undercover officer had to maintain cover. The concept of an undercover officer getting involved in criminal activity in one way or another was, it appears, approached ‘flexibly’ by some SDS officers. The potential for an undercover officer to have been viewed by another group member as having approved, encouraged or participated in criminal activity is inevitable.”

“The undercover officer may well have ended up being arrested. The SDS records show that sometimes that was dealt with by the officer going through the investigation and the court process in their undercover name. This inevitably entailed deception of the arresting officers and courts, and also the legal advisers who represented a number of activists arrested at the same time, all of which had to be dealt with in a manner consistent with their undercover role.”

“It is also clear from the material that we have seen that sometimes an undercover officer who had been present at a riot or other disorder where arrests had been made and criminal proceedings had been brought knew that aspects of the prosecution case being advanced through police witnesses were false.”

“In short, it is inevitable that the interaction between an undercover officer and members of an activist group, taken together with the detailed records of intelligence reported back by them into the MPS system, yielded an obvious potential source of material relevant to criminal proceedings brought. This relevance might be because the undercover officer had encouraged the alleged criminal activity of others, or because the records were capable of supporting a fact relied upon by a defendant or undermining a fact relied upon by the prosecution.”

“The very nature of SDS undercover work placed serving police officers inside groups of activists who not infrequently came into conflict with the police and faced arrest and prosecution. Having a system whereby that activity was shrouded in almost total secrecy and the role of, and intelligence gained by, the undercover officer was not considered in relation to the prosecution’s duty of disclosure in criminal proceedings must, in our assessment, produce the potential for there to have been unfairness in some of those proceedings.

May’s words to Parliament were – when it came to the activities of the Special Demonstration Squad, generally, that “There appear to have been rather fewer boundaries than there should have been”.

Yet from the initial press reports it seems to remain unclear (to me, anyway) whether the public inquiry she has announced will investigate the undercover policing of the Lawrence family, or the use of such officers, generally.

The key demand of campaigners has been for the government to concede a much wider public inquiry, allowing potentially hundreds of activists the opportunity to put their stories to the world.

“If” that has been conceded that would be one of those rare occasions worth celebrating: a victory.

The trial of Lord Coe

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Imagine the scene: the year is 2022, and immediately following the expansion of the jurisdiction of the International Criminal Court, a shocked Sebastian Coe is indicted for aiding and abetting ecocide. In the early days of the trial, which begins just three months later, Coe (despite his advanced years) originally appears jaunty. His opening speech reminds the court that the London Olympics organisers repeatedly declared their Games the Greenest ever. And he speaks of the invaluable work done by the London Olympics’ Sustainability Partners. “I did nothing wrong, the Olympics did nothing wrong. This is a politically-motivated trial. But the companies in the dock, if you like, but I should not be here.”

Under cross examination, Coe’s front slowly drops. Taken carefully through the record of the primary Olympic sponsors, Coe is forced to except – on a company by company basis – that they were engaged in ecological vandalism.

The first morning of the cross-examination is given over to the activities of BP, the Olympic Games’ nominated “Sustainability Partner” and “Official Carbon Offset Partner”. Long before the Games opened, Coe grudgingly accepts, he personally was well aware of the part played by BP in the 2010 Deepwater Horizon drilling disaster, in which around 200 million gallons of crude oil were released into the marine environment of the Gulf of Mexico, killing sea-life in untold numbers. Shown image after image of dying birds, dead fish, ruined seascapes, Coe finally pleads for the images to stop. “Yes, I knew about Deepwater. Everyone did.” “It was the worst oil pollution in the history of the world and your response was to choose BP as a sustainability partner?” Coe shakes his head, mute.

The prosecution moves on to BP’s involvement in the mining of the Canadian Tar Sands. “We now know that by 2012 these alone were responsible for 10% of Canada’s carbon emissions; they kept the world’s car economy going beyond peak oil; and you made BP you Carbon Offset Partner?” Again, Coe declines to answer.

In the afternoon, the prosecution moves on to the other major sponsors of the games.

Dow Chemical had produced the poison gas used at Auschwitz. Its subsidiaries were responsible for the 1984 Bhopal Oil disaster which killed around 25,000 people in India. “I had heard about Deepwater, you couldn’t miss that”, Coe answers, “but by 2012 we considered Bhopal very old news.” The poison was still responsible for birth defects and premature deaths by the time of London 2012, the prosecution counters. “I was a sports administrator”, Coe says, “I knew the length of the track, and how to build a games. Neither I, nor I suspect anyone involved in administering London, gave a first thought to Bhophal.”

“They were your sponsors. You chose them. They were part of the public face of your Games.” Coe, again, refuses to answer.

Rio Tinto, the source of the gold, silver and bronze medals, had mined them in Utah, in a factory whose pollution caused hundreds of deaths each year. Coca-Cola and MacDonalds, the prosecutor continues, were largely responsible for the epidemic of obesity overtaking North America. “You personally authorised the largest the building of the MacDonalds in the world, right in the middle of the athletes’ village.”

In his opening, Coe had referred to the activities of the Olympic Delivery Authority which held annual safety, health and environmental awards, to show that the Games was beyond serious rebuke. Coe is now shown a list of the main prize winners at these “green” awards. One winner, BAM Nuttall, was a member of the construction industry covert blacklist, Coe accepts, while other blacklisters, including Carillion and McAlpine, were also involved in building the main Olympic sites.

Under further questioning Coe accepts that the Olympics games were seen worldwide by a population of billions, that the sponsors logos were ubiquitous in television coverage. He accepts that millions of people were encouraged to believe that the companies associated with the Games were themselves ethical. “And they were right to think so. If we hadn’t believed that ourselves, we would not have allowed them to be our sponsors.”

It is put to Coe that involvement in the Olympics “green-washed” companies such as BP, it bought them time, and held off the day when their crimes would be prosecuted. “You are not asking me now are you”, he counters, “to endorse their prosecutions, or my own?”

What about Meredith Alexander, the Games’ appointed “Ethics Tsar”, who resigned six months before the Games, in protest at the involvement of these polluters: didn’t her departure cause the organisers to re-think? “No”, Coe answers, “by that point we were bound by contractual arrangements with BP and others, we discussed breaking them, but the penalty clauses would have been onerous. You may criticise us, but we didn’t draft the contracts. The Games might have lost money. That would have been unacceptable.”

The prosecutor interrupts, “But you were already losing money at a colossal rate. When you won the bid, you said their budget would be £2 billion. By the Games itself, this had gone up to £23 billion, half of which was coming from general taxation.”

“Yes, I know that”, Coe says, “We were way over budget, and I didn’t want it to get any worse. Please, I’ve had to answer all your questions, let me explain in my own words” Allowed to continue by the Court, Coe sets out for the first time, what will turn out over succeeding weeks to be the central plank of his defence: “I know it is difficult after all these years, but you have to think back to the very different world in which we were operating. It was 2012, we were looking for sponsors. We needed to raise large sums of money. The distribution of wealth was much more concentrated then than it is now. The only available companies, capable of raising the tens of millions we wanted were large companies.”

“You have pointed out the poor environmental record of BP,” Coe continues, “but every large corporation at that time was joined to the same networks. They cross-invested. There was barely a company on the London Stock Exchange that wasn’t involved in mining, oil extraction, or military-related technology. Who else could we have gone too? You can criticise the London Organisers, but in 2012 every international sporting event was being organised in exactly the same way. We were the very most typical expression – no better, no worse than anyone else – of the capitalist economy of our time.”

 [first published in Socialist Lawyer, July 2012]

Fred Wigg Tower case: decision of HHJ Haddon-Cave

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The Guardian’s Olympic updater is reporting that the tenants have lost their judicial review of the MOD’s decision to place missiles on Fred Wigg tower:

“A group of council tenants have lost their high court battle to prevent surface-to-air missiles being stationed on the roof of their tower block during the Olympics. More details soon …”

“Mr Justice Haddon-Cave said the residents of the Fred Wigg tower had expressed “shock, anxiety and worry” over the prospect of missiles being stationed on top of their building, but they had been under “something of a misapprehension” about the nature of the equipment to be deployed and the risks deployment would bring.”

I understand that HHJ Haddon-Cave accepted that there was no consultation but found that there was no need to consult, as there was simply no alternative site for the missiles.

I will report more as I know it; the decision is not yet on Bailii, and as well as the actual judgment there may be developments in terms of appeals, etc.

UPDATE (Weds, 12.20) The decision is still not on Bailii, but Lawtel provides the following details:

R (on the application of HARROW COMMUNITY SUPPORT LTD) v SECRETARY OF STATE FOR DEFENCE (2012)

QBD (Admin) (Haddon-Cave J) 10/07/2012

ADMINISTRATIVE LAW – HUMAN RIGHTS – GOVERNMENT ADMINISTRATION – CIVIL PROCEDURE
CONSULTATION : COURTS’ POWERS AND DUTIES : DELAY : JUDICIAL REVIEW : NATIONAL SECURITY : OLYMPIC GAMES : PEACEFUL ENJOYMENT OF POSSESSIONS : PREROGATIVE POWERS : PUBLIC SECTOR EQUALITY DUTY : RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE : WEAPONS : SECRETARY OF STATE’S DECISION TO LOCATE GROUND BASED AIR DEFENCE SYSTEM ON TOWER BLOCK FOR OLYMPIC GAMES : EUROPEAN CONVENTION ON HUMAN RIGHTS 1950 art.8, Protocol 1 art.1 : TOWN AND COUNTRY PLANNING ACT 1990 : TOWN AND COUNTRY PLANNING (GENERAL PERMITTED DEVELOPMENT) ORDER 1995 art.3

Residents of a tower block were refused permission to apply for judicial review of a decision of the Secretary of State for Defence to locate a ground based air defence system on the roof of their block during the Olympic games.

The applicant residents’ group (H) applied for permission to apply for judicial review of a decision of the respondent secretary of state to locate a ground-based air defence system, which included missiles, on the roof of the tower block.

H’s tower block was located in east London and had an unobstructed view of the Olympic park. Senior government officials had identified it as the only site suitable for the ground-based air defence system due to its proximity to the Olympic park and the vantage point that it offered. It intended to station the missiles on the tower block roof. No consultation took place and H were notified by leaflet in April 2012. The leaflet explained that the tower block was the only suitable site, the area would be permanently manned by armed guard and police, thus increasing security in the area, and that the missiles were safe. H made the instant application in June 2012.

H submitted that there had been (1) a failure to consult adequately; (2) a failure to comply with the public sector equality duty; (3) a breach of their rights under the European Convention on Human Rights art.8 and Protocol 1 art.1.

HELD: (1) A duty to consult arose in four limited circumstances: (i) where there was a statutory duty to consult; (ii) where there had been a promise to consult; (iii) where there had been an established practice of consultation; (iv) where in exceptional cases a failure to consult would lead to conspicuous unfairness, R. (on the application of Cheshire East BC) v Secretary of State for the Environment [2011] EWHC 1975 (Admin), [2011] N.P.C. 92 applied. Absent those circumstances, no duty to consult arose. The law would be slow to require a public body to engage in consultation where there was no obligation or promise to consult, R. (on the application of Niazi) v Secretary of State for the Home Department [2008] EWCA Civ 755, Times, July 21, 2008 applied. That was especially the case where there were military deployments under the discretionary powers of the Crown for the purposes of national security and defence of the realm. No statutory power to consult had been identified. The only other applicable regime affecting military deployments was the possible requirement for planning permission under the Town and Country Planning Act 1990, which did not require a duty to consult. Even if the temporary use of the tower block constituted a material change of use and required planning permission, which the secretary of state did not accept, planning permission was automatically granted by the Town and Country Planning (General Permitted Development) Order 1995 art.3 and schedule 2. None of the four factors present in Chesire had been identified, Cheshire applied. (2) The secretary of state had complied with the public sector equality duty; an environmental and disability impact assessment was carried out during the decision making process and had been taken into account. (3) The first duty of the government was to defend the realm and protect national security, R. (on the application of Marchiori) v Environment Agency [2002] EWCA Civ 3, [2002] Eu. L.R. 225 applied. The Crown had an obligation to protect the public’s art.2 rights, R. (on the application of Middleton) v HM Coroner for Western Somerset [2004] UKHL 10, [2004] 2 A.C. 182 followed. The purpose of the military deployment was to deter attacks. Article 2 considerations prevailed even if any interference substantially impacted on H’s other Convention rights, as the interference was necessary in the interests of national security. Article 8 and Art 1.Protocol 1 were qualified rights; their engagement did not mean that they had been breached. In order for there to be an actionable interference, a serious breach had to be shown, Gomes v Spain App no 4143/02, Dennis v Ministry of Defence [2003] EWHC 793 (QB), [2003] Env. L.R. 34 and Powell and Raynor v UK (1990) EHRR 355 considered. The proposed deployment would not affect H’s ability to use their properties, it was for a limited time and had been carried out in accordance with the law. (4) H had known about the deployment decision two months before making the instant application. Applications had to be made promptly, R v Director of Passenger Rail Franchising [1996] CLC 589 applied. That requirement was even more pertinent in the instant case. It had been incumbent upon H to make the application promptly, notwithstanding the funding difficulties encountered. H’s failure to do so had seriously prejudiced the secretary of state and public interest. (5) The Ministry of Defence’s voluntary engagement with the community over the plans had been immaculate. Had H properly understood the facts, the instant application would not have been brought. The missiles had been rigorously tested and judged safe, and were essential to the air defence plan. Further, H had been notified that their tower block was the only suitable site and the plan had been approved by senior government officials. H’s fears were unfounded: the presence of missiles would not make them a target for terrorists, nor did they interfere with their use of the tower block. (6) In matters involving national security and deployment of armed forces, the courts would be slow to review prerogative powers, R. v Jones (Margaret) [2006] UKHL 16, [2007] 1 A.C. 136 applied. The court recognised that there were aspects of decision-making which lay solely with the executive, namely national security, defence and foreign relations. The courts were ill-equipped to make such decisions, and they lay within the exclusive province of the executive.

The Fred Wigg Tower missiles case: a half-time summary

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I was in court 19 for 45 minutes or so of the case (c11.15-12) and am back in chambers now so can report the arguments in a little more detail.

Essentially, the residents say that the MoD has known about the Olympics for seven years. If it needed to station these missiles anywhere in the block, it should have warned the residents, and discussed the decision with them. It may be that the residents would have accepted the need for the missiles, or it may be that they could have assisted with the planning of them (eg by letting the authorities know what particular needs they have, such as in the event of an evacuation).  But there has been no consultation at all.

The Fred Wigg tower is an unsuitable location: as their barrister Marc Willers put it, “missiles in a residential block are like oil and water, they don’t mix”. The tower was subject to a fire at the end of the last year. It is not more secure, indeed rather less secure than a normal council tower block.

There is a fob system on the main entry door only, which residents disregard (and they simply let in anyone who rings). There is then asecurity guard who sits by the main entry door, and during 10 visits by the residents’ lawyers, the guard did not stop them once. There is then a lift, which gives open access to the floor immediately below the roof on which the missiles will be located. The soldiers guarding the missiles will be unarmed, although on the top floor (i.e. immediately below them) the MoD proposes to station a permanent contingent of armed police. The MoD’s ostensible rationale for this level of security is supposedly to protect the missiles from theft, in reality (the residents say) the MoD is worried about terrorists trying to attack the missiles: the missiles are a well-known and vulnerable target to anyone planning an attack. Over time, inevitably, the MoD will step up security at the block (eg by introducing metal scanners, and a permanent block at the entry. This is the sort of security that you need to protect missiles, but grossly over the top, and offensive to article 8 ECHR, for an ordinary residential block.

Several of the residents suffer long-term health conditions which can incapacitate them for hours at a time. In the event of an emergency (i.e. terrorist attack, or another fire in the building) they would not be able to join in an evacuation.

Even if the missiles needed to be placed “somewhere” in the vicinity, there should have been an assessment of the adjoining Wanstead Flats, which are a large, relatively empty, green space on which a scaffolding tower might have been fixed. This alternative would not have been ideal, and there might have been protests against it, but it would have been a better option than to put the missiles in the middle of people’s homes.

The MoD case by contrast is that the army has an untrammeled right to station missiles wherever it sees fit and there is no obligation to consult residents. There was an exhaustive search for suitable locations (the details of which the MoD will not disclose), and the Fred Wigg tower was the only site in London capable of acting as a sixth site to host the missiles and thereby providing general protection against terrorist attack. The missiles could not have been placed even 50 metres to the North, East, South or West.

There are elderly and infirm people in the block, but it is not a hospital. Generally, their health is not so bad that they would be incapable of evacuation in an emergency.

The missiles will not be used recklessly, and can only be fired by an order of the Prime Minister himself.

The current security locations, lax as undoubtedly they seem, will be maintained. There is no terrorist threat against the missiles, and no need for the security measures protecting the block to be stepped up.

It will follow from this summary that perhaps the least credible argument being put in court was the MoD’s insistence that simultaneously: a) London is under immediate threat from terrorists, so unusual security measures are needed, which you would only normally consider in wartime, and b) the missiles in particular (and therefore the residents) are of no potential interest to terrorists, and can be housed in a residential block without raising the merest possibility of a health and safety risk.

The hearing continues…

UPDATE: 5pm Monday. The case has now adjourned, and judgment will be delivered first thing tomorrow. Some (brief) further coverage, including a quote from the MoD is on the Guardian’s rolling Olympics new page here.

The Fred Wigg Tower case: listed in the RCJ today

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The Fred Wigg Tower case (i.e the Leytonstone missiles) is listed in the Royal Courts of Justice today. Details as follows:

COURT 19
Before MR JUSTICE HADDON-CAVE
Monday 9 July, 2012
At half past 10

Applications for Permission
CO/6767/2012 The Queen on the application of Harrow Community Support Limited v Secretary Of State For Defence

Charles Haddon-Cave QC, is an interesting choice: he was a barrister specialising in cases about shipping and aviation, and is the former chairman of the Air Law Group Committee of the Royal Aeronautical Society (i.e. at a sufficient level of generality, we can say that he is someone who is unlikely to be made anxious by the thought of proximity to military technology).

He also chaired the 2009 Nimrod review blaming military deaths on a culture of government cuts.

It is a “permission” rather than a “substantive” hearing – i.e. a hearing as to whether the residents have a case which the MoD must answer, rather than the final hearing of the Judicial Review.

I hope to be there for at least some of it.