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Archive for August, 2016

Nazi law: the logical conclusion of class justice?

Nazi law: extreme class justice

The National Socialist theory of law in Hitler’s Germany included the following:

  • The “leadership principle”. The state is a group and a group has no strength or unity without a leader. The leader is the mystical personification of national unity. Law and the state mean the same thing. Since the leader is the embodiment of the state, law is what the leader commands. Therefore, unquestioning obedience is demanded; the law serves political ends; nothing must stand in the way of implementing the will of the leader.
  • The “racial principle”. Law is inherited by blood. It should serve the ends of the state and its policies. It should help to preserve racial purity. The German Code of 1900 was based on Justinian’s version of Roman law. It was therefore “Jewish” in origin. The only international system which could be tolerated was a Nordic one. Every state has a natural privilege and power to prevail over other states and to take their land as room for its people. Any treaty which attempted to restrict this privilege could be ignored.

Nazi law was not central to the exercise of power by the National Socialist party, but it formed part of a system which brought unimaginable suffering to millions.


The law is sacred to the bourgeois (Frederick Engels)

Frederick Engels’ overview of the condition of the English working class, written in 1844 at a time of acute class conflict and against a background of European revolution, includes the following:

… the law is sacred to the bourgeois, for it is his own composition, enacted with his consent and for his own benefit and protection. He knows that, even if an individual law should injure him, the whole fabric protects his interests; and more than all, the sanctity of the law, the sacredness of order as established by the active will of one part of society, and the passive acceptance of the other, is the strongest support of his social position. Because the English bourgeois finds himself reproduced in his law, the policeman’s truncheon has for him a wonderfully soothing power. But for the working man quite otherwise! The working man knows too well, has learned from too-oft experience, that the law is a rod which the bourgeois has prepared for him….

The state does not care whether starvation is bitter or sweet; it locks people up in prison or sends them to penal settlements, and when it releases them it has the satisfaction of having converted people without work into people without morals.

What inducement has the proletarian not to steal? It is all very pretty and very agreeable to the ear of the bourgeois to have the sacredness of property asserted; but for him who has none, the sacredness of property dies out of itself. Money is the god of this world: the bourgeois takes the proletarian’s money from him and so makes a practical atheist of him.

If a rich man is brought up, or rather summoned, to appear before the court, the judge regrets that he is obliged to impose so much trouble, treats the matter as favourably as possible, and, if he is forced to condemn the accused, does so with extreme regret.


Advocacy: myth and reality

Advocacy

A standard text on practical hints for advocacy at the Bar (Evans, see Further Reading) 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.

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.

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.

Even the supposedly glamorous side of the trade, the Crown Court trial, has its great share of tedium. The trial process itself appears endlessly repetitive. Cross-examination, hailed as an art form, consists largely of repeating over and over again, questions to expose supposed inconsistencies in evidence.

And the waiting – nothing to do but wait – for the judge, the jury, the court. Hours of lost and wasted waiting time. Advocates in the Crown Court adopt a particular style of deference towards the judge – a deference which has been honed by convention over the centuries.

The speech to the jury – repeating everything the jurors already know and the judge’s summing up which repeats it all over again. This can be more than the normal person can stand.

 

The “art” of the advocate is often seen to be the asking of questions of such detail and complexity, endlessly repeated with hardly noticeable variations, until everyone has lost track of reality and any answer can be challenged.

A recent scheme to assess and approve the quality of advocates has been introduced by the Bar Council – perhaps this implies that things are not so perfect as is often implied?

The supposed image of calm efficiency in the courts is very different from the chaos which can reign in reality. Documentation is often faxed through the night before a trial and if a judge demands that papers should be reorganised, advocates may find themselves kneeling on the floor outside the court to comply with this judicial diktat.


Subconscious sex discrimination

SEX DISCRIMINATION

Unconscious or subconscious

Case  Geller and Geller v Yeshurun Hebrew Congregation (2016) Morning Star, August 19, EAT

Facts G was employed by YHC in 2011. A year later his wife started working for YHC on an ad hoc basis. YHC later suggested that the couple should be paid a joint salary. This was accepted.

In 2013 it was decided that G would be made redundant. Before he was informed of this, he told his employer that his wife was pregnant. Mrs G  stated that she should also be considered for redundancy. Both were made redundant at the end of 2013. They lodged a number of claims in the employment tribunal including sex discrimination in that YHC had failed to treat Mrs G as an employee and had failed to pay her properly. The claims were dismissed on the basis that YHC had not treated Mrs G less favourably because of her sex but because it genuinely believed that she worked for them on an ad hoc basis. Mrs G appealed to the EAT.

Decision      1. The matter was referred back to the tribunal for reconsideration.

  1. The tribunal had overlooked the important point that discrimination can be conscious or subconscious.
  2. The tribunal had failed to go through the two-stage burden of proof test in section 136 of the Equality Act 2010. Its treatment of the test had been rudimentary. There were primary facts from which discrimination could be inferred. At that stage the burden of proof would have shifted and it would have been for the employer to demonstrate a non-discriminatory reason for treatment.

Health and safety in prisons: no protection for prisoners?

 

Health and safety in prisons

Pullen v Prison Commissioners (1957)

From 1951 until 1953 George Pullen served a sentence of imprisonment in Pentonville prison. During most of his sentence, he worked in the prison workshop making coir mats. Dust was given off during this process. In 1954 Pullen was diagnosed as suffering from tuberculosis. He claimed compensation from the Prison Commissioners, who at that time were responsible for prisons. The basis for his claim was that the Commissioners had been in breach of their statutory duty under section 47 of the Factories Act 1937 in failing to take measures to protect him from dust and fumes, and that the Commissioners had been negligent.

On behalf of the Commissioners, it was argued that a prison workshop was not a factory within the meaning of the Factories Act.

The High Court ruled that Pullen’s claim failed and made the following points:

  • A prison workshop was not a factory.
  • The Act of 1937 was designed for the protection of persons working in factories.
  • The Act placed obligations on employers of labour in factories to take various precautions for the protection of their workpeople. It applied to people working under contract and not to prisoners employed on labour as part of penal discipline.
  • If Parliament had intended to include prisons for the purposes of the Factories Act, a reference to prisons would have been inserted.
  • If the definition of “factory” is to apply, there must be a relationship of master and servant and employment for wages. There is no employment for wages in the case of prisoners.
  • The work which is carried on in prisons is work which is penal in the sense that prisoners are obliged to work as a consequence of their sentence.
  • Pullen had not been employed in unhygienic conditions. His health had not been undermined by the conditions in which he was working. There was a certain amount of dust in the place where he was working. An extractor was provided.
  • This had not been a dangerous occupation nor had the conditions under which he worked such as to cause Pullen ill-health.

This decision, that prisoners are not employees of the prison in the course of their work, remains good law. It means that the Health and Safety at Work, etc., Act 1974 cannot normally be invoked by prisoners.


Race discrimination: abuse of migrant workers: Supreme Court decision

RACE DISCRIMINATION

Immigration status

Case  Taiwo v Olaigbe and Onu v Akwiwu (2016) Morning Star, August 5, Supreme Court

Facts Two Nigerian migrant workers had come to Britain on domestic workers’ visas. Ms T was expected to work during most of her waking hours for minimal wages. She was starved and subjected to mental and physical abuse.

Ms O worked an average of 84 hours a week. She was not paid the national minimum wage and was abused.

Both workers brought a number of claims against their employers, including claims for race discrimination. The EAT ruled that this claim failed. The Court of Appeal dismissed their appeals on the basis that immigration status could not be equated with nationality for the purpose of the Equality Act 2010. There were many non-British nationals working in Britain who did not share the dependence and vulnerability of these migrant workers. Ms T and Ms O appealed to the Supreme Court.

Decision      1. The appeal was dismissed.

  1. Although immigration status is a function of nationality and nationality is one of the protected characteristics under the Equality Act, it is not unlawful to discriminate against someone on the basis of their immigration status.

Barrister’s clerk: what is the reality?

Barrister’s clerk

A recent article in the legal press has discussed the relationship of the clerk with a barrister – he was at once his clerk, his good servant, dresser, his friend, his flapper, his guide, stopwatch, auditor, treasurer. One of the clerk’s tasks was to send a barrister’s summer reading books to his hotel in Davos. He also booked the train ticket. No, no, no, said the barrister. He never sat with his back to the engine.

The clerk could be compared with a public school fag. (For those fortunate enough to have avoided an English public school education, a “fag” is a young boy who acts as an unpaid servant for an older boy. The benefits of this system are said to include an appreciation of the service ethos and respect for one’s elders).

In theory, the role of the barrister’s clerk has developed into management and administration, and clerks are now often described as practice managers. It is not clear how far this modern terminology reflects the reality of the barrister-clerk relationship. Clerks, who do not need formal qualifications, can exercise significant power over members of chambers, particularly in relation to the arrangement and distribution of work. In reality, practice as a barrister can be efficiently managed without the services of a clerk.


Employers’ liability insurance: inadequate cover: Supreme Court decision on director’s liability

Employers’ liability insurance

Company in liquidation

Case  Campbell v Peter Gordon Joiners Ltd (In Liquidation) and Another (2016) The Times, July 20, Supreme Court

Facts C was employed by PGJ as an apprentice joiner. He suffered an injury while working with an electrical circular saw. PGJ’s employers’ liability insurance excluded claims arising from the use of woodworking machinery powered by electricity. This was a breach of the 1969 Act. The company went into liquidation. C sought to hold G, as director of the company, liable in damages for the company’s failure to provide adequate insurance cover.

Decision      1. The claim failed.

  1. The 1969 Act imposed criminal liability and the general rule was that there was no civil liability.
  2. There was no suggestion that a person could be made indirectly liable for breach of an obligation imposed by statute on someone else. It was no different where the obligation was imposed on a company.
  3. The 1969 Act imposed direct responsibility only on the employer. The responsibility of a director was imposed by a specific and closely defined criminal penalty.

Paris Commune 1871: lessons for lawyers

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.


Chevron offshore installation: prohibition notice: appeal on facts

HEALTH AND SAFETY

Prohibition notices

Appeal

Case  HM Inspector of Health & Safety v Chevron North Sea Ltd (2016) Scottish Inner House 29

Facts A prohibition notice was served on Chevron (C ), the operators of an offshore installation. The main access to the installation was by helicopter. Access to the helipad was by stairways which led to staging around the perimeter of the helipad. In April 2013 an HSE inspector visited the installation. He identified significant corrosion on the stairways and served a prohibition notice on the basis that the stairways were unsafe and that their use would involve a risk of serious personal injury.

The installation manager undertook that remedial work would be carried out immediately and that the stairways would not be used until it was completed. C arranged for the stairways to be taken to Exova for testing. The test concluded that the stairways complied with British Standards. C appealed against the prohibition order. The HSE objected to the admission of the Exova test in evidence. The employment tribunal cancelled the notice. Evidence which had arisen after the notice could be taken into account. The condition of the stairways was not such as to pose a risk of serious personal injury. The HSE appealed to the Scottish Inner House.

Decision      1. The appeal was dismissed.

  1. An appeal against a prohibition notice was not confined to points of law. An appeal on the facts was equally open.
  2. Bearing in mind the effect which a prohibition notice might have on an operator’s business, it would be strange if an operator could not mount a successful appeal based upon the simple contention that whatever the inspector thought at the time based on the information before him, it was now known that the risk did not exist.
  3. This analysis had no bearing upon an inspector’s ability to act in the interests of health and safety when he formed the opinion that a risk existed. The emergence of new material to negate the risk did not in itself invalidate the notice or its effect at the time.