Logo

Archive for March, 2015

Kazakhstan: Bar Council Mission: Human Rights Issues

We have been invited by the Bar Council to take part in a mission to Kazakhstan to promote the legal services of the Bar. The invitation referred to Kazakhstan as the largest legal market in the CIS region after Russia which generated a significant number of commercial disputes. A significant number of Kazhak lawyers had attended the Global Law Summit in London in February this year.

The Summit was opposed by lawyers and human rights activists who marched from Runnymede to Hampton Court in protest. The Summit was described by opponents as a monstrous jamboree of corporate law, tax avoidance and global networking, and was boycotted by the Liberty organisation.

Our response to the invitation was to make the following points:

  1. There were many reports of a serious deterioration of human rights in Kazakhstan.
  2. It has been reported that freedom of assembly, speech and religion are heavily restricted. Government critics have remained in detention after unfair trials. Legislation regulating workers’ rights is vague and burdensome. The country has been described as a corrupt authoritarian state ruled by its president since 1998.
  3. We would expect the English Bar to raise these issues as a matter of priority.

At the time of writing, the Bar Council has failed to reply.


Orkney Crushing Death: Health And Safety Prosecution

Orkney excavator crushing death: £12,000 fine

Crown Office and Procurator Fiscal Service v William George Sinclair Reid t/a E&M Engineering Services (2015) Kirkwall Sheriff Court, March 25

William George Sinclair Reid, trading as E&M Engineering services, has been fined following the death of an employee in a crushing incident.

Significant points of the case

  • In November 2012 Christopher Hartley, an employee of Reid, was working on a pier in Hoy, Orkney. He was unloading metal panels from a van, using an excavator.
  • Hartley was struck by the moving excavator and crushed between the machine and a fixed cabinet at the end of the pier. He suffered fatal crush injuries.
  • Although Reid had carried out a risk assessment, he had not identified mechanical lifting as a hazard and the risks associated with using an excavator.
  • Reasonable precautions had not been taken to reduce the risk of a person being struck by a moving load or excavator.
  • Reid should have planned and controlled the task to ensure that a strictly-enforced exclusion zone was set up during all excavator manoeuvring and lifting operations, and that all personnel involved were wearing appropriate hi-vis clothing, particularly since the work was being undertaken in the dark.

Reid was fined £12,000 for a breach of regulation 8, Lifting Operations and Lifting Equipment Regulations 1998. Regulation 8 states, in summary, that every employer shall ensure that every lifting operation involving lifting equipment is properly planned by a competent person, appropriately supervised and carried out in a safe manner.

 


Advocacy: The Reality Behind The Hype

Advocacy

A standard text on practical hints for advocacy at the Bar makes the following points:

  • It is generally accepted throughout the English-speaking world that the standards of the English Bar are by and large among the best.
  • Ideal wear – unless you are utterly determined to make a political statement – is still the black jacket and waistcoat with striped trousers.
  • My Lord, Your Honour: there are complex rules of etiquette in addressing different levels of the judiciary: these are conventions, not law.
  • Conduct generally: for example, a barrister in robes never carries a briefcase or any other kind of bag. Barristers do not shake hands and should always address each other by their surnames.
  • The public attitude towards lawyers is unfortunate and understandable.
  • Give nothing away by your facial expressions.
  • The sheer, mind-numbing boredom of courtroom advocacy is rarely admitted. The detailed, endless preparation, the waiting in draughty corridors, the tiresome repetition of evidence and counter-evidence, the predictably bad-tempered judge, the waiting for the jury to return. The interminable waiting on draughty station platforms for the train to Snaresbrook for the plea in mitigation for £50, the standing on crowded trains for the case management conference in Merthyr Tydfil for £30.   The egotism of the advocates who love to be “on their feet”. The dressing-up, the dressings-down. The judge who was obviously bullied at his public school and who subconsciously returns the favour to his subordinates throughout his working life.
  • The mystique of oral advocacy can be a gift to those who love the sound of their own voices. It is now generally accepted that the English tradition of oral adversarial advocacy involves a massive waste of time, and therefore money.
  • There is an irreconcilable contradiction between this sort of advice and the professed commitment of the Bar to a modern and classless approach. The English legal system pays homage to the primacy of oral argument.

Societies Without Lawyers

Harold Barclay, People Without Government (An Anthropology of Anarchism)

A shock for lawyers – law is not universal – there are societies which have managed very well without wigs, gowns, advocates, courts, prisons and gallows.

Barclay sets out an anthropological analysis of societies which have functioned without government, which do not accept the idea of authority as natural.

His key points include:

  • Legal sanctions involve expressions of disapproval of the behaviour of an individual where:
  • Such expressions of disapproval are delegated to persons holding defined roles.
  • These persons have authority to threaten the use of violence and use it to carry out their job.
  • Punishments are imposed in relation to the infraction and are defined within certain limits and in relation to the crime.
  • Examples of persons holding these defined roles include police, judges, jailers, executioners and lawmakers.
  • The state declares that it has a monopoly on the use of violence.
  • Legal sanctions are not universal, but are characteristic of only some types of human society.
  • Law and government are invariably associated with rule by an elite class.
  • The employment of violence to enforce the law is fundamental to both government and to the state. The government may use a variety of words to describe this violence: lawful arrest, reasonable force, detention, etc., but it all involves, in the end, physical violence.
  • Barclay’s views must be subject to the argument that societies without laws have functioned at a primitive stage of sophistication, and that more developed societies need legal systems. This is subject to the counter-argument that current society has reached a stage of development and sophistication where justice is for sale, where children and the mentally ill are put to death in the United States and other countries, and where war criminals avoid prosecution.

Corporate manslaughter: another successful prosecution

Corporate manslaughter: company and owner sentenced

R v Peter Mawson and Peter Mawson Ltd (2015) Preston Crown Court, February 3

Peter Mawson, the owner of Peter Mawson Ltd, a building and joining company, has been sentenced for health and safety breaches. The company has been fined for corporate manslaughter.

Significant points of the case

  • In October 2011 Jason Pennington, an employee of the company, was working on a roof at a farm. He fell 7 metres through a skylight onto a concrete floor and suffered fatal injuries.
  • In December 2014 the company and Mawson pleaded guilty to corporate manslaughter and to health and safety offences. It was admitted by the company and Peter Mawson that they had failed to utilise a safe system of work and failed to use the proper safety equipment to ensure the safety of the workers.

Mawson was sentenced to 8 months imprisonment, suspended for two years, 22 hours unpaid work, a publicity order to be posted in the company’s website and a half-page statement in the local newspaper, plus £31,500 costs.

The company was fined £200,000 for corporate manslaughter plus £30,000 under section 2, HSWA, for failing to ensure the health and safety of employees.


Paris Commune: Violence, Law And The State

 

Paris Commune

For ten weeks in 1871, workers, artisans, students and veterans of revolutions took control of the second largest city in Europe. It was said that for the first time since 1848 the streets of Paris were safe without any police of any kind.

The Commune’s law-making activities included the following:

  • The abolition of military conscription: the permanent army was replaced with the National Guard which was a democratic body of citizen soldiers.
  • A moratorium on rents.
  • The requisition of abandoned apartments and their distribution to the homeless.
  • The prohibition of the sale of articles deposited at pawnshops.
  • Teachers’ salaries were raised: there was no distinction between the pay of male and female teachers.
  • Equal pay for equal work.
  • The transfer of requisitioned property to worker co-operatives.
  • The separation of church and state.
  • The suppression of public funding for religion.
  • Nationalisation of church lands.
  • The Commune was destroyed by force of arms. Many communards were executed without trial in a frenzy of killing and thousands of others were transported to New Caledonia. This is an extreme example of a historical truth – that when the state is sufficiently threatened, it uses violence to deal with the threat. In extreme conditions, the criminal law is essentially about violence, no matter how it attempts to deny this and to dress itself up as machinery for suppressing violence. The state, in crisis, asserts its monopoly of extreme violence.

Interference With Lawyers

The Haldane Society of Socialist Lawyers have created a petition in support of all human rights lawyers in the wake of the attempts to intimidate and shame Haldane Vice President Phil Shiner and Public Interest Lawyers.

We ask that all of our members please read, sign and share it!

Please find the petition at: https://www.change.org/p/david-cameron-stop-intimidating-and-shaming-lawyers

Resulting from the work of human rights lawyers, there has been an increase of hostile press coverage of human rights litigation which is portrayed as having an agenda to undermine the British Armed Forces . Particular animosity is directed towards Phil Shiner and his Iraq work.

This animosity follows the Secretary of State for Defence’s comments that Phil was exploiting the British legal system in a shameful attempt to attack and falsely impugn the Armed Forces. Furthermore,  David Cameron has personally intervened by authorising a dossier to be drawn up and sent to the Solicitor’s Regulatory Authority (SRA). This is an extraordinary and unprecedented decision which we did not expect from our own government.

We are concerned that Ministerial comments are designed to create a negative atmosphere and as a result place lawyers such as Phil Shiner in danger.  Further comments made by Ministers fit into a clear narrative that seeks to scrap the Human Rights Act and undermine human rights litigation.

We pledge our support to any lawyer vindicating the rule of law in the name of truth, justice and accountability.We condemn attacks on Phil Shiner and anyone else whose legal work is focused on ensuring state accountability.

Lawyers will not be discouraged and neither will Phil Shiner who works to the highest professional standards to secure justice for his clients who make allegations of ill-treatment, arbitrary detention and unlawful killings against the British government .

We want David Cameron to:

  1.       Stop attempting to intervene with the SRA’s investigations of Public Interest Lawyers (PIL) and influence their findings
  2.       Stop attempting to intimidate and shame lawyers in a bid to deter them from their work contrary to principle 16(a) of the UN Basic Principles on the role of Lawyers
  3.       Stop attempting to apply administrative and economic sanctions to deter lawyers from their work contrary to principle 16(c) of the UN Basic Principles on the role of Lawyers
  4.       Stop equating lawyers with their clients contrary to principle 18 of the UN Basic Principles on the role of Lawyers
  5.       Stop attempting to undermine human rights litigation
  6.       Issue an apology, signed by Michael Fallon, for breaching principles 16 and 18 of the UN Principles on the Role of Lawyers and for using Parliament as a platform to undermine and endanger Phil Shiner
  7.       Provide PIL with the opportunity to respond to the allegation that they have behaved improperly

We hope that you all sign the petition and we thank our members in advance for their efforts to fight the deterrence of human rights lawyers from their valuable work.

Kind regards,

Natalie Csengeri

Joint Secretary of the Haldane Society


Key Employment Law Changes In April 2015

From 5th April 2015, the following key increases will be implemented;
• Limit on basic award’s week pay (redundancy and unfair dismissal)   £475
• Maximum basic award     £14,250
• Maximum compensation award for unfair dismissal     £78, 355
• Statutory maternity/paternity/adoption pay     £139.58/week
• Statutory sick pay     £88.45/week
In respect to parental rights, the right to unpaid parental leave will be extended to parents of any child under the age of 18 years. Surrogate parents will also be eligible for adoption leave.


Steelworks Health And Safety Disasters

 

Some employers appear more than once in recently reported health and safety prosecutions. For example:

Corus (UK) Ltd, the steelmaking company, was fined £170,000 in April 2007 after a worker was killed by a falling crane.

In July 2003 Shane Eastwood, an employee of Corus, was working at the company’s site in Rotherham. He was working on machinery in an engineering workshop under an overhead crane. The crane’s hoist block, which weighed 260 kg, fell seven metres onto Eastwood, causing fatal injuries.

A limit switch, which was designed to cut power to the crane if its block was hoisted too far, and which was safety-critical, had failed. As a result, the hoist rope snapped and the block fell.

The accident had been entirely avoidable. Corus had failed to properly maintain the limit switch. The switch was defective and had progressively failed.

This was reported to have been the ninth time in five years that Corus has been fined for health and safety offences.

 

Corus was also fined £1.3million at Swansea Crown Court on December 15, 2006, for health and safety offences relating to fatalities at its Port Talbot plant.

In November 2001 a blast furnace exploded at the plant. The explosion lifted the top half of the furnace two feet into the air and resulted in molten metal falling on workers. Three were killed, twelve suffered serious burn injuries and five others were injured. The explosion was caused by water leaking into the white hot centre of the furnace, which had been in operation for 47 years. Some of the injured, and those who witnessed the incident, were still receiving psychological treatment five years after the explosion.

The Crown Court Judge criticised the company’s casual attitude to safety. During a two-day hearing, evidence was given of a catalogue of errors which resulted in the explosion. These included years of recommendations by senior employees at the plant, relating to the furnace, which were ignored.

In 1993 a decision was taken to prolong the life of the blast furnace. A committee was set up to discuss and report on the furnace four times a year. The committee made a series of recommendations, none of which were acted upon.

One example was a recommendation to carry out a comparative study into the benefits of electrical and diesel pumps. The failure of a succession of electrical pumps, which circulated cooling water to the furnace, resulted in the explosion. The furnace had suffered many pump failures before the explosion.

The power plant log for the period before the incident showed that an electrical transformer had been damaged by rain and needed repair. A plan to repair it was the start of events which eventually caused the incident. The transformer had to be partially isolated before repairs were carried out. This meant that the current to a furnace pump was transferred to another transformer. This operation needed monitoring to ensure that voltage remained constant.

The team of employees working on the furnace on the day before the explosion was not told about the repair work. When the current was transferred, the voltage in the transformer dropped. This caused a pump to trip and an auxiliary pump, which then came into operation, also tripped. The result of this was that water to cool the system ceased to circulate and approximately 50 tons leaked into the furnace. Employees who were sent to deal with the leak thought that it had been repaired. In fact, the water remained in the furnace. It reacted with the molten metal in the furnace and caused the explosion when the metal core was reheated on the next day.

Corus pleaded guilty to breaches of health and safety law. Defending counsel stated that this did not mean that the company acknowledged that it had foreseen that lives would be at risk. Modern blast furnaces went back to the Victorian era. There were no records of similar explosions having happened. The inquest into the deaths had recorded verdicts of accidental death. An internal report issued by Corus at the time of the inquest had concluded that the explosion was neither foreseen nor foreseeable.

Senior management responsible for the furnace had met to discuss problems with it one hour before the explosion. The risk of a discharge, but not an explosion, had been discussed at the meeting.

The families of the victims of the explosion were reported to have made the following comments:

  • They were disgusted and shocked at the outcome.
  • It was quite unbelievable that the company should have been fined such a meagre sum.
  • Corus should have been fined up to the maximum allowable. A large fine would have ensured that other companies sat up and listened and understood the consequences of not doing enough for health and safety.
  • The judge had stated that Corus had made £143 million this year after tax, so what they had been ordered to pay was a pinprick.
  • A spokesperson for Community, the trade union representing steelworkers, is reported to have made the following comments:
  • The fine was substantial but the union would have expected it to be higher. It did not begin to reflect the scale of suffering of the workers and their families and of the traumatised community of Port Talbot.
  • The union had put all its resources at the disposal of the community and had spent more than £500,000.
  • The disaster had been horrific, with hot molten metal flying everywhere.

Individual Human Rights: What’s Wrong?

Individual and collective human rights

For an ex-miner in Blaenau Gwent, suffering from a terminal lung disease, who develops a raging toothache, and cannot afford dentistry, it is of great solace to know that a Queen’s Counsel in chambers in Lincoln’s Inn has worked night and day to ensure that he has freedom of religion.

When my own father was dying, and no ambulance could be found to take him from hospital to a hospice, so that I had to pay a private ambulance to travel fifty miles, it was most reassuring for me to know that it was unlawful for me to be discriminated against on the grounds of my ethnic origins and that this right would be protected by a coterie of London QCs.

 

The rights protected by the Act of 1998 are generally recognised as civil and political rights, largely aimed at the protection of individuals. Social and economic rights are not covered. There is no right to work and no right to healthy and safe working conditions.

 

While the current trend towards the protection of human rights in relation to, for example, freedom of speech and the right to a fair trial, is without doubt desirable, progressive and moving towards human emancipation and social justice, these are essentially individual civil and political rights. They do not address social and economic issues. It is, for example, of little comfort to those living in the most deprived circumstances that liberal lawyers from London are willing to earn huge sums to protect their right to freedom of religion.

The human rights industry in England is rarely criticised from the left. It is normally selected for abuse by populist politicians and journalists. But this does not mean that it is beyond criticism. It should be realised that there is a substantial body of academic opinion, particularly in developing countries, which is highly critical of the Western emphasis on individual civil and political rights.

This has been described as the little magic territory of human rights which is just civil and political. It has also been pointed out that before people get to political rights they want to know what to do about Aids and what to do about food and water.