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Archive for January, 2017

Torture is illegal and non-negotiable in all civilised contries except one.

The torture “debate”

A recent, sinister development in the human rights industry has been the preparedness of mainly American, but also some English academics, to “debate” the legality of torture. The prospect of academic lawyers “debating” the proposed legalisation of torture is appalling. There should be no “debate”. Torture is non-negotiable. This is beyond discussion in most civilised countries.

Article 3 of the European Convention on Human Rights states that no-one shall be subjected to torture or to inhuman or degrading treatment or punishment. This provides absolute protection. In no circumstances can such treatment be made legal. States are never able to argue that such treatment is acceptable or justifiable. The drafters of the European Convention had experience of legalised torture under the Nazi regime. They were determined that this would never be repeated.

The definition of torture, and its distinction from inhuman or degrading treatment, is problematic. Article 1 of the UN Convention against Torture gives the following definition:

Torture means any act which by severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third party information or a confession.

 

In 2005, in the case of A and Others v Secretary of State for the Home Department, seven Law Lords decided unanimously that evidence which may have been obtained by torture is inadmissible in English courts, regardless of where or by whom the alleged torture has been perpetrated.

This judgment was described as the leading judgment on torture which would reverberate around the world, putting beyond doubt that the ban on torture was absolute in civilised countries.

Lord Bingham commented that from its earliest days, the common law set its face firmly against the use of torture. The principles of the common law, standing alone, compelled the exclusion of third party torture evidence as unreliable, unfair, offensive to ordinary standards of humanity and decency, and incompatible with the principles which should animate a tribunal seeking to administer justice. Torture was prohibited by statute in 1640 in England and in 1708 in Scotland.

Those who seek to “debate” the legalisation of torture have introduced, as justification, the “ticking bomb hypothetical”. This is a devised scenario involving a large number of lives at stake in the immediate future, where the torture of suspects is the only means of dealing with the threat. It has been suggested that there is anecdotal evidence that this scenario has some basis in reality. Those who put forward this argument have never produced independent evidence to support their claims.

Academic discussions of legal torture conveniently avoid the realities of the torture chamber. For example:

  • Who will be the torturers? The police? Prison officers? It is to be hoped that their trade unions would have some points to make in this connection. How will the torturers be trained? Will there be accredited courses in torture techniques, with diplomas awarded for successful trainees?
  • How will the torturers deal with the health and safety aspects of spattered blood from the victims’ wounds?
  • Will there need to be risk assessments for torture workers who use electric drills to pierce victims’ bones?
  • Will judges be delegated to sit in on torture sessions? It is to be hoped that the English judiciary would have nothing to do with this.
  • Presumably, doctors would have to be present at legal torture sessions to ensure that victims do not die. Again, it is hoped that the medical profession would find itself precluded, on the grounds of professional ethics, from assisting in the torture chamber.
  • What kinds of torture will be legalised? Pliers to extract fingernails? The rack? Electric batons? Wall handcuffs? Beatings? A more recent example of a torture technique is to make incisions in the victim’s penis with a scalpel and then to pour hot and irritating liquid onto the wounds. Any proposal to legitimise torture must face up to these disgusting realities.
  • Will licences be granted for the manufacture and supply of instruments of torture?

Apparently, there is a huge body of academic research into the legalisation of torture. It should be asked whether these researches, presumably funded in part by the taxpayer, are more worthwhile than, for example, the reasons why there are only two Law Centres in the Southeast of England outside London, or the effects of the abolition of legal aid in most civil cases on the most vulnerable and deprived members of society.

The appalling realities of the torture chamber have been examined by the European Court of Human Rights in a number of cases. For example in the Greek case (1969) torture took the form of falanga (the beating of the soles of the feet with a wooden or metal stick or bar) which, if skilfully done, breaks no bones, makes no skin lesions and leaves no permanent and recognisable marks, but causes intense pain and swelling of the feet; severe beatings of all parts of the body; the application of electric shock; mock execution and threats to shoot or kill the victim; squeezing of the head in a vice; pulling out of the hair from the head or pubic region; kicking of the male genital organs; dripping water on the head and intense noise to prevent sleep.

This illustrates the horrific reality of the torture chamber. If falanga is to be “skilfully” applied, then its practitioners will have to be trained. Torturers must develop the skills of extracting information by the use of very severe and cruel suffering without killing the victim or, in an ideal world, leaving no permanent and recognisable marks. Can anyone seriously contemplate a legalised training school for torturers in Britain?

 

In 1949, during discussion on the proposed Universal Declaration of Human Rights, the British representative at the United Nations is reported to have made the following comment:

All forms of torture, whether inflicted by the police, military authorities or members of private organisations, are inconsistent with civil society, are offences against heaven and humanity and must be prohibited. This prohibition must be absolute and torture cannot be permitted for any purpose whatsoever, either for extracting evidence, to save life or for the safety of the state. It would be better for society to perish than for it to permit this relic of barbarism to remain.

The last word on torture should go to Albie Sachs, who was subjected to torture by sleep deprivation by the South African security forces. He makes the point that his experience was not the hypothetical situation of the kind discussed by some academics in relation to the costs and benefits of governments using torture. In his case, as in 99.9 per cent of torture cases, there was no ticking bomb. The object of the torturers was not to obtain information but to humiliate and degrade their victim so as to achieve power and dominance.

In 1988, Sachs lost an arm and the sight of an eye when his car was bombed by South African security agents. It appears that he was bombed because he was an intellectual who challenged the claim of the South African apartheid government that no political system could be found to enable black and white to live together as equals in South Africa.

Sachs makes the point that when the African National Congress was a liberation movement in exile, a Code of Conduct was drawn up which prohibited torture in any circumstances.

 

Lord Bingham has pointed out that the Bush administration rewrote the definition of torture to mean “physical pain of an intensity akin to that which accompanies serious physical injury such as death or organ failure”. This excludes “enhanced interrogation techniques”.

Recent disclosures have indicated that the United Kingdom has been involved in torture. In January 2010 the UN Human Rights Council declared that the UK had been complicit in the rendition, unlawful detention and torture of terror suspects.

In the case of Binyam Mohamed (a torture victim), the Court of Appeal stated that MI5 had failed to respect human rights, deliberately misled Parliament and had a culture of suppression which undermined government assurances about its conduct. The lawyer acting for the government demanded that the Court of Appeal should change the wording of its judgment to be less critical of MI5.


Easyjet: breastfeeding facilities: sex discrimination

The recent Bristol employment tribunal decision in the case of McFarlane and Ambacher v Easyjet Airline Co Ltd has given guidance on the application of the Management of Health and Safety at Work Regulations (MHSWR) in the context of breastfeeding by employees. The case illustrates the application of health and safety law, and employment law in general, in this context.

B and A were female cabin crew members employed by Easyjet .They wished to continue breastfeeding their children after returning to work at the end of their maternity leave. They were advised by their GPs that they should ask for their shifts to be limited to eight hours. There were no suitable facilities for expressing milk on board aircraft. The GPs advised that working longer shifts would increase the risk of the development of mastitis.

Easyjet refused to agree to the requests. It failed to conduct a risk assessment and showed a strong reluctance to create bespoke shift patterns because of possible operational difficulties, given the need to deal with possible flight delays. The employment tribunal found that the treatment of B and A amounted to indirect sex discrimination. It took into account evidence that the company had been able to create bespoke shifts for another crew member who suffered from deep vein thrombosis, and evidence that flight delays were not as common as the company had suggested.

Regulation 16(1) of MHSWR imposes an obligation on employers to carry out a specific risk assessment where women of childbearing age or new or expectant mothers may be at risk from a work process, working condition or physical, chemical or biological agent. New or expectant mothers are defined as women who are pregnant, who have recently given birth or who are breast feeding.

New or expectant mothers may also be suspended from night work if a doctor or midwife signs a certificate stating that such work should be suspended on grounds of the woman’s health and safety.

Regulation 16(2) requires employers to change working conditions or hours if it is reasonable to do so to avoid such risks. If such steps would not be reasonable or would not avoid the risks, regulation 16(3) imposes a requirement to suspend an employee on medical grounds, subject to the employee’s right to be offered alternative work.

If no alternative work is available, the employee has a right to be paid while suspended on maternity grounds. This includes suspending a woman because she is breastfeeding a child. The tribunal in the Easyjet case found that the company had in effect suspended B and A by failing to offer them reduced hours, knowing that they had received medical advice not to accept longer shifts. They were therefore entitled to claim for pay during the suspension.

The tribunal referred to the World Health Organisation paper on Mastitis causes and management which identifies full-time work as a factor influencing the risk of mastitis, because of long intervals between feeds and lack of time for adequate milk expression.


Advocacy monopoly: Levellers wanted it abolished

The advocacy monopoly

The monopoly over advocacy and the conduct of litigation is central to the powers and privileges of the legal profession. This was recognised in the seventeenth century by the Levellers who declared:

Any man may plead his own cause or call in whom he will to plead for him (the lawyers’ monopoly is broken) (Third Agreement of the People).It is worth noting that a proposal put forward by the Levellers that practice as a lawyer would be a crime has reportedly been in effect in Cuba since shortly after the Revolution.

 

The advocacy monopoly is partly based on the fact that it is a criminal offence for an unqualified person to “conduct litigation”. Section 13(2) of the Legal Services Act 2007 requires individuals wishing to provide “reserved legal activities” to be authorised to do so by the relevant approved regulator. “Reserved legal activities” are, basically, rights of audience in courts and the right to conduct litigation. This does not apply to tribunals. Some lawyers are keen, in their own interests, to extend their advocacy monopoly to tribunals. Recent moves, for example, to redesignate the employment tribunal as a “court” could have the effect of extending the advocacy monopoly to that tribunal, where it does not currently apply.


Private property in Cuba: homelessness is a faint memory

Private property in Cuba

  • The revolution resulted in a fundamental change in property relations. All means of production were nationalised.
  • Landlords were prevented from evicting delinquent clients.
  • Cuba is a country of homeowners, based on the individual ownership of private homes. Most Cubans are homeowners.
  • Housing law has the primary social objective of providing shelter to all citizens. It is based primarily on the recognition of the social function of housing as opposed to its commercial or investment value.
  • In no case can the ownership of a home become a mechanism of enrichment or exploitation.
  • Private rental housing is prohibited. Housing is a public service with the state as primary landlord.
  • State constructed housing is transferred through sale to individuals by the Popular Savings Bank. The price is amortised over 15 to 20 years. There is no foreclosure or repossession. Arrears are collected by the attachment of the debt to the debtor’s salary.
  • Inheritance rules are designed mainly to protect the occupiers of homes.
  • There are virtually no homeless people in Cuba.

Pro bono initiatives: old textbooks for the underdeveloped world: serious theoretical issues

Pro bono initiatives

Old books for the third world

The organised distribution of secondhand law books to sub-Saharan Africa, the poorer parts of Asia and the Caribbean has been hailed as a contribution to the underpinning of individual liberty and democratic government. The organisers do not seem to have realised the contradictions inherent in this scheme.

First, an old law book is more like out-of-date food than like an old overcoat. Old overcoats can keep you warm, but old law books, like food which is past its sell-by date, are worse than useless – they are dangerous. If it were to be suggested to a successful British lawyer that he or she might rely on old editions of legal textbooks donated by inhabitants of former colonies, this would rightly be regarded as an insult. Developing countries deserve more than our castoffs, just as poor people deserve more than our old clothes.

No decent British lawyer would use an out of date textbook. If she did, she would risk liability for negligence. Old law books are simply wrong, and valueless, because they contain out of date material. If you are involved in litigation and your opponent has a new book, while you have an old one, you are suffering a tremendous disadvantage.

Second, the distribution of such useless material to the deserving poor is one of the clearest examples of the pro bono movement not thinking its actions through. If law books are essential for democracy in “the poorer parts of Asia”, then why should those who thirst for democracy not have access to up to date material? Are we seriously expected to believe that a poverty-stricken Asian lawyer will give heartfelt thanks when he receives an old edition of Archbold? The attitude seems to be that old law books are no use to us, but the colonies will be grateful for them.

Thir