#ECHR: After #Brexit they will come for human rights — and this time the public debate must be won!

After Brexit they will come for human rights—and this time the public debate must be wonAdam Wagner  | PROSPECT MAGAZINE | 9 June 2019

To leave the European Convention on Human Rights would be an act of epic historical selfishness

The Human Rights Act and the ECHR are in a sense bound together.
Photo: JACK TAYLOR/AFP/Getty Images

In March last year, Dominic Cummings, former Campaign Director of Vote Leave, warned that after Brexit happens “we’ll be coming for the ECHR… and we’ll win that by more than 52-48…” For anyone who has paid attention to the public debate over the Human Rights Act (HRA) and European Convention on Human Rights (ECHR) in the past decade, those were chilling words.

The safeguards we rely on to protect our human rights, here in the UK and across Europe, are not guaranteed for all time. They have emerged from a supreme effort of political inspiration, will and cooperation over the past seven decades. But they can swiftly be undone. In the post-Brexit world, it is only a matter of time before “sorting out” human rights is back on the agenda.

And the starting gun has just been fired, through Jonathan Sumption’s Reith Lectures. Two titles give the flavour: “Law’s Expanding Empire” and “Human rights and wrongs.” Sumption is a former-ish Supreme Court Justice (he has retired as a full-time judge but still sits on some cases). When his lectures were announced, it was obvious to those who have followed his previous statements that he would use them as a vehicle to present a highly sceptical view of human rights. And so he has.

Sumption is hardly the first high-profile figure to argue that the human rights have gone too far. But, regrettably, the whole debate has become riddled with confusion. It is worth spelling out just where the discussion is going wrong—and just how vital these fundamental protections are to British citizens.

To recap, the ECHR is an international treaty which the UK signed in 1951. It contains a list of the basic political and civil rights which we all need to live a dignified life; the right not to be tortured, to free speech, to private life and so on. The content of the ECHR was heavily influenced by its great proponents, Winston Churchill and David Maxwell-Fyfe, a British prosecutor at Nuremberg and Tory home secretary. They saw the ECHR as a means of infusing post-war continental Europe with liberal values and the rule of law.

Before 2000, if a UK citizen was having their rights under the ECHR breached by the state, they had to bring a claim at the European Court of Human Rights in Strasbourg, a costly process which could take years. From 2000, the Human Rights Act (HRA) made it so that public authorities in the UK had to uphold those same rights, and if they didn’t then a person could bring a claim in a local UK court. New Labour sold the HRA as a means of “bringing rights home,” and that is what it did. The ECHR and HRA are in a sense bound together. The former still plays an important role, as its court applies the same principles across a hugely diverse continent, providing guidance and inspiration to UK judges. Given its scope, it is a remarkable system which on the whole works for the 47 states and over 800m people protected by it. Sumption stops short of demanding we undo all this immediately, and would clearly not seek to eradicate every human right protected by the ECHR. But he is alarmingly open to the possibility of the UK discarding the ECHR framework in the future.

There have always been human rights sceptics. Opinion research has long shown that whilst the British public strongly support the idea of human rights and the rights contained in the ECHR, some are concerned about the laws by which they can access those rights. This situation, relatively unique worldwide (people tend to support the protection of their basic rights against the overreaching state), is rooted in our popular mistrust of “Europe” and the unpopularity of “New Labour’s” HRA in the right-wing press.

I was heavily involved in the human rights debate before Brexit was a thing and there are many common features between how people feel about the EU and the ECHR. Like the EU, the ECHR is a system of international cooperation originating from a treaty, enforced by an international court which gets a lot of public criticism, not all of it fair. And confusion between the EU and the ECHR is common. Indeed, as Cummings rightly points out, “most people probably think we’re already leaving [the ECHR] because of the 2016 referendum.”

But rather than address this confusion, seeing that human rights scepticism is a popular position, amplified by the right wing press, the Tories fought for a decade to replace the HRA with a “British Bill of Rights.” The campaign, driven by current leadership hopeful Dominic Raab, has been, to now, a total failure. The HRA remains in the same form it was passed into law over two decades ago and the UK is still a signatory to the ECHR. Meanwhile, our courts have continued to apply human rights laws to the benefit of citizens, particularly underrepresented minority groups who tend to get left behind by majoritarian political systems. Despite this, demands for repeal persist from some quarters.

The problem for the Tories has always been that the case against both the ECHR and HRA has tended to rely upon scare stories and exaggerations, such as Theresa May’s famous cat which she claimed, and she was making this up, prevented a man being deported. I have referred to this as the “monstering of human rights.” Every time these empty vessels crash against the sharp rocks of reality, they flounder. The most recent example was following the 2015 general election, where a relatively small group of “Runnymede Tories” blocked any prospect of HRA repeal. The critics of human rights have not waved the white flag yet though. The debate was just put on hold until after Brexit.

Some criticisms of human rights law are valid—in part. But it is important that human rights laws and institutions are not subjected to a standard of perfection. Any system which relies on broadly defined rights and a court comprised of human judges interpreting them will be imperfect. Nevertheless, the criticisms of the European Court of Human Rights and the HRA are overblown, which is why they so often seem to be premised on fundamental misunderstandings. For example, Jenni Russell’s recent Times article, responding to Sumption’s lecture and overtly seeking to apply the language of “take back control” to human rights, repeated the myth that the HRA allows judges to strike down all laws. It doesn’t. It is a clever compromise designed for our system of parliamentary sovereignty whereby judges can declare a statute to be incompatible but, in legal terms, leave that statute in place. This allows parliament—not the courts—to decide whether to change it or not.

Another regular criticism is that the ECHR has been taken too far, with judges discovering new rights which were never written into the text of the Convention—this is Sumption’s thesis. It echoes the US-style “originalist” argument; that we should interpret the text as the people who wrote it, in this case in the early 1950s, would have. But the reality is that the court has moved slowly, responding conservatively to social changes not just in individual states but across the whole of Europe. For example, over decades it has gradually recognised the rights of homosexuals, not explicitly protected—for obvious reasons—by the 1950s text. In the UK context, this led to the decriminalisation of homosexuality across the entire British Isles and a ruling that homosexuals must be permitted to serve in the Armed Forces. And in recent years the Court has slowed down even more, as the principle of “subsidiarity” has been developed by influential states, such as the UK, which have pushed back against what are seen as its excesses. The UK government, far from being a passive victim to crafty judges as Sumption implies, has been deeply involved in the Court’s evolution through involvement in cases and the democractic reform processes. And the court has responded by taking an even more conservative approach.

Here in the UK, in less than 20 years since the HRA came into force, judges have used it to fill essential gaps in protections, in areas as diverse as inquestssocial security benefitsreligious rights and freedom of the press. But the handful of cases which have become totemic for human rights sceptics are a testament to how small-minded our nation has become. Compare the great ambition of Churchill to spread values of tolerance and decency across a European continent morally ravaged by fascism and communism to human rights critics’ current obsession with giving a few of our prisoners the chance to participate in democracy and the deportation of a hate preacher, Abu Qatada, who in the popular imagination remains here in the UK instead of Jordan—where he ultimately returned with his human rights intact. If the UK were to withdraw its historic support for the ECHR, it would undermine a system which is strengthening liberal values across Europe, including the former USSR. It would be an act of epic historical selfishness.

Brexit still dominates the national conversation but, as Cummings said, it is only a matter of time before they will be coming for human rights. This will happen either because Brexit has failed, so angry Brexiteers need to be assuaged, or it succeeds, giving confidence to those who want the UK to be further internationally isolated. In many ways, the attempts to answer the concerns of human rights sceptics mirrors the Brexit debate. Overblown criticisms are useful for stoking anger or rallying a political base but cannot ever truly be answered. Just as parliament cannot identity, let alone agree, a Brexit deal which will satisfy critics of the EU, it will not find a way to assuage critics over human rights laws. As many have pointed out, unicorns do not exist.

It is beyond doubt that the debate will soon reignite. It is up to advocates for human rights to learn the lessons of 2016 and ensure that this time the public debate is won.

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SOURCE: After Brexit they will come for human rights—and this time the public debate must be wonAdam Wagner  | PROSPECT MAGAZINE | 9 June 2019

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BOOK REVIEW: #CreepingTotalinarianism: #Doublethink Is Stronger Than #Orwell Imagined! What #1984 means today!

BOOK REVIEW

Doublethink Is Stronger Than Orwell Imagined

What 1984 means today!!

The Ministry of Truth: The Biography of George Orwell’s 1984 BY DORIAN LYNSKEY DOUBLEDAY

OLIVER MUNDAY

No novel of the past century has had more influence than George Orwell’s 1984. The title, the adjectival form of the author’s last name, the vocabulary of the all-powerful Party that rules the superstate Oceania with the ideology of Ingsoc—doublethinkmemory holeunpersonthoughtcrimeNewspeakThought PoliceRoom 101Big Brother—they’ve all entered the English language as instantly recognizable signs of a nightmare future. It’s almost impossible to talk about propaganda, surveillance, authoritarian politics, or perversions of truth without dropping a reference to 1984.Throughout the Cold War, the novel found avid underground readers behind the Iron Curtain who wondered, How did he know?

It was also assigned reading for several generations of American high-school students. I first encountered 1984 in 10th-grade English class. Orwell’s novel was paired with Aldous Huxley’s Brave New World, whose hedonistic and pharmaceutical dystopia seemed more relevant to a California teenager in the 1970s than did the bleak sadism of Oceania. I was too young and historically ignorant to understand where 1984 came from and exactly what it was warning against. Neither the book nor its author stuck with me. In my 20s, I discovered Orwell’s essays and nonfiction books and reread them so many times that my copies started to disintegrate, but I didn’t go back to 1984. Since high school, I’d lived through another decade of the 20th century, including the calendar year of the title, and I assumed I already “knew” the book. It was too familiar to revisit.

So when I recently read the novel again, I wasn’t prepared for its power. You have to clear away what you think you know, all the terminology and iconography and cultural spin-offs, to grasp the original genius and lasting greatness of 1984. It is both a profound political essay and a shocking, heartbreaking work of art. And in the Trump erait’s a best seller.

DOUBLEDAY

The Ministry of Truth: The Biography of George Orwell’s 1984, by the British music critic Dorian Lynskey, makes a rich and compelling case for the novel as the summation of Orwell’s entire body of work and a master key to understanding the modern world. The book was published in 1949, when Orwell was dying of tuberculosis, but Lynskey dates its biographical sources back more than a decade to Orwell’s months in Spain as a volunteer on the republican side of the country’s civil war. His introduction to totalitarianism came in Barcelona, when agents of the Soviet Union created an elaborate lie to discredit Trotskyists in the Spanish government as fascist spies.

Left-wing journalists readily accepted the fabrication, useful as it was to the cause of communism. Orwell didn’t, exposing the lie with eyewitness testimony in journalism that preceded his classic book Homage to Catalonia—and that made him a heretic on the left. He was stoical about the boredom and discomforts of trench warfare—he was shot in the neck and barely escaped Spain with his life—but he took the erasure of truth hard. It threatened his sense of what makes us sane, and life worth living. “History stopped in 1936,” he later told his friend Arthur Koestler, who knew exactly what Orwell meant. After Spain, just about everything he wrote and read led to the creation of his final masterpiece. “History stopped,” Lynskey writes, “and Nineteen Eighty-Four began.”

The biographical story of 1984—the dying man’s race against time to finish his novel in a remote cottage on the Isle of Jura, off Scotland—will be familiar to many Orwell readers. One of Lynskey’s contributions is to destroy the notion that its terrifying vision can be attributed to, and in some way disregarded as, the death wish of a tuberculosis patient. In fact, terminal illness roused in Orwell a rage to live—he got remarried on his deathbed—just as the novel’s pessimism is relieved, until its last pages, by Winston Smith’s attachment to nature, antique objects, the smell of coffee, the sound of a proletarian woman singing, and above all his lover, Julia. 1984 is crushingly grim, but its clarity and rigor are stimulants to consciousness and resistance. According to Lynskey, “Nothing in Orwell’s life and work supports a diagnosis of despair.”

Lynskey traces the literary genesis of 1984 to the utopian fictions of the optimistic 19th century—Edward Bellamy’s Looking Backward (1888); the sci-fi novels of H. G. Wells, which Orwell read as a boy—and their dystopian successors in the 20th, including the Russian Yevgeny Zamyatin’s We (1924) and Huxley’s Brave New World (1932). The most interesting pages in TheMinistry of Truth are Lynskey’s account of the novel’s afterlife. The struggle to claim 1984 began immediately upon publication, with a battle over its political meaning. Conservative American reviewers concluded that Orwell’s main target wasn’t just the Soviet Union but the left generally. Orwell, fading fast, waded in with a statement explaining that the novel was not an attack on any particular government but a satire of the totalitarian tendencies in Western society and intellectuals: “The moral to be drawn from this dangerous nightmare situation is a simple one: Don’t let it happen. It depends on you.” But every work of art escapes the artist’s control—the more popular and complex, the greater the misunderstandings.

Lynskey’s account of the reach of 1984 is revelatory. The novel has inspired movies, television shows, plays, a ballet, an opera, a David Bowie album, imitations, parodies, sequels, rebuttals, Lee Harvey Oswald, the Black Panther Party, and the John Birch Society. It has acquired something of the smothering ubiquity of Big Brother himself: 1984 is watching you. With the arrival of the year 1984, the cultural appropriations rose to a deafening level. That January an ad for the Apple Macintosh was watched by 96 million people during the Super Bowl and became a marketing legend. The Mac, represented by a female athlete, hurls a sledgehammer at a giant telescreen and explodes the shouting face of a man—oppressive technology—to the astonishment of a crowd of gray zombies. The message: “You’ll see why 1984 won’t be like ‘1984.’ ”

The argument recurs every decade or so: Orwell got it wrong. Things haven’t turned out that bad. The Soviet Union is history. Technology is liberating. But Orwell never intended his novel to be a prediction, only a warning. And it’s as a warning that 1984 keeps finding new relevance. The week of Donald Trump’s inauguration, when the president’s adviser Kellyanne Conway justified his false crowd estimate by using the phrase alternative facts, the novel returned to the best-seller lists. A theatrical adaptation was rushed to Broadway. The vocabulary of Newspeak went viral. An authoritarian president who stood the term fake news on its head, who once said, “What you’re seeing and what you’re reading is not what’s happening,” has given 1984 a whole new life.

What does the novel mean for us? Not Room 101 in the Ministry of Love, where Winston is interrogated and tortured until he loses everything he holds dear. We don’t live under anything like a totalitarian system. “By definition, a country in which you are free to read Nineteen Eighty-Four is not the country described in Nineteen Eighty-Four,” Lynskey acknowledges. Instead, we pass our days under the nonstop surveillance of a telescreen that we bought at the Apple Store, carry with us everywhere, and tell everything to, without any coercion by the state. The Ministry of Truth is Facebook, Google, and cable news. We have met Big Brother and he is us.

Trump’s election brought a rush of cautionary books with titles like On TyrannyFascism: A Warning, and How Fascism Works. My local bookstore set up a totalitarian-themed table and placed the new books alongside 1984. They pointed back to the 20th century—if it happened in Germany, it could happen here—and warned readers how easily democracies collapse. They were alarm bells against complacency and fatalism—“the politics of inevitability,” in the words of the historian Timothy Snyder, “a sense that the future is just more of the present, that the laws of progress are known, that there are no alternatives, and therefore nothing really to be done.” The warnings were justified, but their emphasis on the mechanisms of earlier dictatorships drew attention away from the heart of the malignancy—not the state, but the individual. The crucial issue was not that Trump might abolish democracy but that Americans had put him in a position to try. Unfreedom today is voluntary. It comes from the bottom up.

We are living with a new kind of regime that didn’t exist in Orwell’s time. It combines hard nationalism—the diversion of frustration and cynicism into xenophobia and hatred—with soft distraction and confusion: a blend of Orwell and Huxley, cruelty and entertainment. The state of mind that the Party enforces through terror in 1984, where truth becomes so unstable that it ceases to exist, we now induce in ourselves. Totalitarian propaganda unifies control over all information, until reality is what the Party says it is—the goal of Newspeak is to impoverish language so that politically incorrect thoughts are no longer possible. Today the problem is too much information from too many sources, with a resulting plague of fragmentation and division—not excessive authority but its disappearance, which leaves ordinary people to work out the facts for themselves, at the mercy of their own prejudices and delusions.

During the 2016 U.S. presidential campaign, propagandists at a Russian troll farm used social media to disseminate a meme: “ ‘The People Will Believe What the Media Tells Them They Believe.’  — George Orwell.” But Orwell never said this. The moral authority of his name was stolen and turned into a lie toward that most Orwellian end: the destruction of belief in truth. The Russians needed partners in this effort and found them by the millions, especially among America’s non-elites. In 1984, working-class people are called “proles,” and Winston believes they’re the only hope for the future. As Lynskey points out, Orwell didn’t foresee “that the common man and woman would embrace doublethink as enthusiastically as the intellectuals and, without the need for terror or torture, would choose to believe that two plus two was whatever they wanted it to be.”

We stagger under the daily load of doublethink pouring from Trump, his enablers in the Inner Party, his mouthpieces in the Ministry of Truth, and his fanatical supporters among the proles. Spotting doublethink in ourselves is much harder. “To see what is in front of one’s nose needs a constant struggle,” Orwell wrote. In front of my nose, in the world of enlightened and progressive people where I live and work, a different sort of doublethink has become pervasive. It’s not the claim that true is fake or that two plus two makes five. Progressive doublethink—which has grown worse in reaction to the right-wing kind—creates a more insidious unreality because it operates in the name of all that is good. Its key word is justice—a word no one should want to live without. But today the demand for justice forces you to accept contradictions that are the essence of doublethink.

For example, many on the left now share an unacknowledged but common assumption that a good work of art is made of good politics and that good politics is a matter of identity. The progressive view of a book or play depends on its political stance, and its stance—even its subject matter—is scrutinized in light of the group affiliation of the artist: Personal identity plus political position equals aesthetic value. This confusion of categories guides judgments all across the worlds of media, the arts, and education, from movie reviews to grant committees. Some people who register the assumption as doublethink might be privately troubled, but they don’t say so publicly. Then self-censorship turns into self-deception, until the recognition itself disappears—a lie you accept becomes a lie you forget. In this way, intelligent people do the work of eliminating their own unorthodoxy without the Thought Police.

Orthodoxy is also enforced by social pressure, nowhere more intensely than on Twitter, where the specter of being shamed or “canceled” produces conformity as much as the prospect of adding to your tribe of followers does. This pressure can be more powerful than a party or state, because it speaks in the name of the people and in the language of moral outrage, against which there is, in a way, no defense. Certain commissars with large followings patrol the precincts of social media and punish thought criminals, but most progressives assent without difficulty to the stifling consensus of the moment and the intolerance it breeds—not out of fear, but because they want to be counted on the side of justice.

This willing constriction of intellectual freedom will do lasting damage. It corrupts the ability to think clearly, and it undermines both culture and progress. Good art doesn’t come from wokeness, and social problems starved of debate can’t find real solutions. “Nothing is gained by teaching a parrot a new word,” Orwell wrote in 1946. “What is needed is the right to print what one believes to be true, without having to fear bullying or blackmail from any side.” Not much has changed since the 1940s. The will to power still passes through hatred on the right and virtue on the left.

1984 will always be an essential book, regardless of changes in ideologies, for its portrayal of one person struggling to hold on to what is real and valuable. “Sanity is not statistical,” Winston thinks one night as he slips off to sleep. Truth, it turns out, is the most fragile thing in the world. The central drama of politics is the one inside your skull.


This article appears in the July 2019 print edition with the headline “George Orwell’s Unheeded Warning.”

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SOURCE: BOOK REVIEW

Doublethink Is Stronger Than Orwell Imagined

WHAT GOOD IS AN APOLOGY?

“The media wasn’t allowed to film the meeting between Jodey’s family and the DWP, which took place at the office of a local MP, but our reporter Jonny Blair spoke to them afterwards.

The DWP representatives didn’t speak to the media after the meeting but offered the following statement:

Senior officials have met with Mrs Dove today, to apologise again for the failings in handling her daughter’s case and discuss the lessons learnt. We fully accepted the Independent Case Examiner’s findings earlier this year and have since reviewed and strengthened our procedures to ensure all vulnerable claimants are safeguarded.”

Govt Newspeak

What good is an apology! It won’t bring Jodey Whiting back.


Parents of Jodey Whiting receive an apology from the government after her death

Parents of Jodey Whiting

In February 2017, a mother of 9 children from Stockton, took her own life shortly after her benefits had been stopped.

Jodey Whiting’s family has always claimed the government is responsible for her death, but an independent review stated that the claim is impossible to prove. Today, its representatives met Jodey’s parents to apologise, but Jodey’s mother Joy called the meeting ‘nowhere near enough.’

The Department for Work and Pensions has admitted failings in the way it handled the case of a vulnerable woman.

Jodey Whiting

Credit: ITV News

Jodey Whiting was 42 years old when she died in 2017. She missed an appointment for a medical assessment, which led to…

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#Rohingya #EthnicCleansing #Myanmar: #AungSanSuuKyi in #Hungary: A chilling sign of global #Islamophobia!

Aung San Suu Kyi in Hungary: A chilling sign of global IslamophobiaPeter Oborne | MIDDLE EAST EYE | 6 June 2019

The spectacle of the Burmese Nobel Laureate’s meeting with Viktor Orban highlights the monstrous threat posed to Muslims around the world!

Aung San Suu Kyi met Hungarian Prime Minister Viktor Orban in Budapest on Wednesday (Hungarian government)

For many years, Aung San Suu Kyi was a hero in the West. Through a long period of house arrest, her lonely battle for freedom and democracy in Myanmar made her almost as great an icon as Nelson Mandela. In 1991, she was awarded the Nobel Peace Prize outright; Mandela shared it two years later.

But times have changed. Since becoming the state counsellor of Myanmar, she has become the most visible political apologist for the ethnic cleansing – I would say genocide – of an estimated 25,000 Rohingya Muslims in the violence that swept across the country in 2017.

A further 700,000 were driven from their homes. Security forces have been accused by human rights groups of the systematic rape of Rohingya women and girls.

Yet, Aung San Suu Kyi believes Myanmar has done nothing wrong. This became plain after her gruesome meeting on Wednesday with Hungarian Prime Minister Viktor Orban in Budapest.

‘Climate of fear’

A statement released after the meeting noted that the two leaders had a great deal in common. In particular, they agreed on “the emergence of the issue of coexistence with continuously growing Muslim populations”.

Both Orban and Aung San Suu Kyi subscribe to versions of the noxious ‘clash of civilisations’ thesis expressed by American academic Samuel Huntington in the 1990s. For Orban, Christianity is Europe’s last hope in the face of Islamic expansion, and Hungary is the final line of defence. This has led to Orban targeting Muslim migrants, repeatedly referring to them as terrorists.

The Buddhist Aung San Suu Kyi and the Christian Orban are an integral part of a cross-continental political movement that views Islam as a mortal threat

For Aung San Suu Kyi, Islam represents an existential threat to the Buddhist culture of Myanmar. As early as 2013, she was criticised for denying the ethnic cleansing of Muslims in the region, blaming the violence on a “climate of fear”.

The West was so eager to support Aung San Suu Kyi in her battle against the generals of Myanmar’s military dictatorship that it ignored the signs of her subscription to the Buddhist nationalism that has manifested itself so brutally in the last few years.

Nationalist rhetoric

The Buddhist Aung San Suu Kyi and the Christian Orban are an integral part of a cross-continental political movement that views Islam as a mortal threat to the countries they lead. It’s a sentiment embraced by Xi Jinping’s China, which is currently carrying out a cultural genocide against the Uighurs of East Turkestan.

The situation is worryingly similar in Narendra Modi’s India, where more and more Muslims are facing a level of persecution not seen since independence.

Aung San Suu Kyi and Viktor Orban
Orban (R) told Aung San Suu Kyi that the Hungarian people respected all she had done for her country’s “democratic transformation” (Hungarian government)

This coming-together of Orban and Aung San Suu Kyi raises significant questions for the rest of us. It’s become the default language of right wing and nationalist regimes to attack their Muslim minorities. Imprisonment, killing and torture has been justified by the idea that all Muslims are an enemy within, embodying the existential threat of Islam.

The same anti-Muslim language can be heard within Britain’s ruling Conservative Party, as well as the right wing Brexit Party and the remains of UKIP. It’s common parlance among far-right parties on the European continent, and it is a horrible perversion of the truth.

A mythical threat

Then, of course, there is US President Donald Trump. His calls for a ban on Muslims entering the US, and his general anti-immigration agenda, are almost identical to the views of Orban.

And the two were full of praise and admiration for each other when Orban visited the White House last month. The support for Trump among Myanmar’s vehemently anti-Muslim monks is also well documented.

Why is the world sitting idly by as China persecutes Uighur Muslims?

Read More »

The supposed threat of Islam to the West is a myth.

Millions of Muslims have settled in the West to enjoy the benefits of Western life, and to contribute as workers, entrepreneurs and citizens.

Millions more are campaigning for the best of Western values: freedom of thought and expression, the rule of law, and equality of opportunity, in the face of obscurantism.

Yet, the latest spectacle of the meeting between Aung San Suu Kyi and Orban should act as an important reminder of the monstrous threat posed to Muslims around the world. If anyone is under threat it’s the Rohingya in Myanmar, the Muslim migrants in Hungary, and the hundreds of thousands of Uighurs still being held in detention camps.

Challenging falsehoods

Less than 25 years ago, more than 8,000 Muslim Bosnians were killed in the Srebrenica massacre. The Bosnian Serb perpetrators of this travesty saw their actions as a defence of their national and ethnic identity. Others continue to deny the genocide even took place.

The army commander who carried out the genocide at Srebrenica was Ratko Mladic, otherwise known as the “Butcher of Bosnia”. He was finally convicted of the genocide and sentenced to life imprisonment two years ago. But when he was first brought to court in 2011, these were his words: “I defended my people and my country.”

How much longer must we listen to world leaders use this same chilling language against Muslims, before we begin to challenge their falsehoods and myths?

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Eye.

Peter Oborne won best commentary/blogging in 2017 and was named freelancer of the year in 2016 at the Online Media Awards for articles he wrote for Middle East Eye. He also was British Press Awards Columnist of the Year 2013. He resigned as chief political columnist of the Daily Telegraph in 2015. His books include The Triumph of the Political Class, The Rise of Political Lying, and Why the West is Wrong about Nuclear Iran.

How Legal Aid Cuts are Causing Systematic Poverty

“The UN Special Rapporteur’s study reports that the number of civil legal aid cases are down by a “staggering” 82% since 2010.

A new campaign must be launched to preserve the idea of meaningful ‘access to justice’ and the place for it within the welfare state.

Beyond the figures, the 2013 legal aid cuts represent the death of an idea: the right of everyone to be treated fairly by the state no matter what their income.

The political consensus around the need for state-funded ‘access to justice’ –undermined by successive governments – was dealt a fatal blow by David Cameron’s Coalition.

In recent years, it has occasionally been said that legal aid is “a forgotten pillar of the welfare state“. But, this wasn’t the role conceived for it by the Attlee Government. The welfare state comprises Beveridge’s four pillars: the NHS, universal housing, universal education, and state security. The idea was that people needed recourse to a properly funded system of legal advice so that their rights to such vital services could be enforced through the courts if necessary.”

Govt Newspeak

Call me dumb, but, I never really saw the connect between denial of Legal Aid and the decimation of the welfare state, even though I was denied any kind of legal help when my husband was [first] found “fit” for work. I had to learn [and quickly] how to appeal and what to do when denied benefits. I was a lay person back in 2013, now I have learnt a lot and been able to help others with their DWP appeals.
How true Prof. Alston’s words are:
“the glue that has held British society…has been “deliberately removed and replaced with a harsh and uncaring ethos”.
Only this week: hypocritical leaders have been “celebrating” 75 years since D Day, even though they couldn’t give a toss about the rights of the ordinary people that they sent out to fight the war[s]. I think this cartoon says more than I ever…

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How for-profit prisons have become the biggest lobby no one is talking about

“Nearly two-thirds of private prison contracts mandate that state and local governments maintain a certain occupancy rate – usually 90 percent – or require taxpayers to pay for empty beds.”

Nappy News

Sen. Marco Rubio is one of the biggest beneficiaries.

(Benjamin C. Tankersley/For The Washington Post)

Several industries have become notorious for the millions they spend on influencing legislation and getting friendly candidates into office: Big Oil, Big Pharma and the gun lobby among them. But one has managed to quickly build influence with comparatively little scrutiny: Private prisons. The two largest for-profit prison companies in the United States – GEO and Corrections Corporation of America – and their associates have funneled more than $10 million to candidates since 1989 and have spent nearly $25 million on lobbying efforts.

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#MIPO: Should We Abolish #Accountability? Special Report on #MisconductInAPublicOffice!

A REPORT BY EILEEN CHUBB – Should We Abolish Accountability?
A Special Report on “Misconduct in Public Office” | Eileen Chubb | October 2016

Introduction

This report is in response to The Law Commission’s review of the law
Misconduct In Public Office (MIPO). There is a risk that MIPO is likely to
abolished unless we can raise public awareness on the importance of keeping
the only law that provides accountability to the public when those who are in a
position of power betray the trust placed in them. The problem is that MIPO
has not been used in many cases where it should have been against powerful
people because the general public have been unaware of it. At the end of this
report readers will be asked to give your opinions.

A crucial point is that if any new law replaced MIPO it would not have
retrospective power. The act of attempting to abolish MIPO is the very
reason we need such a law in the first place. Otherwise some wrongdoers
could escape justice.

The Law Commission has published its latest report (Report 229). This
document states that the preferred option is for the law to be abolished. Given
the erosion of public confidence in those institutions that govern them I would
argue that MIPO has never been more vital.

I agree that some amendments to language are needed given that it is over two
hundred years old but the essential elements of this law must remain. The
question that should be asked is not “Should MIPO be abolished?”

The question that should be answered is “Why have the institutions that
govern us become accountability averse?” This culture has resulted in
avoidable deaths, cover-ups, illegal wars, invasion of privacy, blacklisted
workers, state spying for political purposes, miscarriages of justice and many
other immoral and illegal activities arising from misconduct in public office.

The Law Commission has described MIPO:
Page 51 3.34 “Historically, prosecutions for misconduct in public office appear
to have concentrated on one particular type of harm to the public interest, that
harm being to the public’s confidence in terms of their expectation of and belief
in the integrity of the institutions that govern them.

As part of our conclusions on the historic development of the offence in appendix A
to the background paper we said the mischief to be addressed was misconduct in both a
positive and negative form by officers who performed functions on behalf of the state.

This included the Judiciary and other officers independent of the Crown and the
executive. Specifically the offence was addressed to officers who might not
otherwise be made accountable for their actions and where the functions being
performed had the potential to affect the public interest, therefore the principle
underlying the offence was one of accountability for a serious breach of
legitimate expectation held by the public as to how an individual would perform
those functions.”

In plain English, this law was originally aimed at the judiciary and other public
officers whose failures caused serious harm to the public interest and who
would not be held to account by any other law.

“A public officer acting as such”

The concern we have is that cases prosecuted currently are disproportionately
against police officers. For example a police officer found to be fiddling his
petrol accounts could be dealt with via disciplinary procedures or by the law
that deals with fraud offences. Also the term “acting as such” is clearly aimed
at the duty to the public that is being undertaken. It could be argued that buying
petrol is not a police officer’s duty to the public.

However if a police officer attends the scene of a crime, eg an assault, and then
exploits his position of authority by going on to have a sexual relationship with
a vulnerable victim of crime, then that is clearly a situation that should be
prosecuted under MIPO.

If a police officer tampers with or fabricates evidence and falsely incriminates
an innocent person that too should be prosecuted under MIPO.

If MIPO is abolished then my concern is that the most serious breaches will be
downgraded to mere offences and this will not capture the harm done to the
public interest. Some cases which would include senior public officials cannot
be dealt with by other laws so these individuals will remain unaccountable for
their actions. We need to keep MIPO with amendments to ensure it is used
more widely and to prosecute appropriately.

Breach of Duty

Page 161 (2) The Law Commission MIPO consultation:
“The cases prosecuted also emphasise the importance of making a clear
distinction between those judicial officers who intentionally or recklessly breach
a duty of their their position and thereby undermine the correct administration
of justice and those who make decisions that might prove unpopular or arrive
at an incorrect decision by reason of an error or mistake.

“For good reason scenarios involving office holders who make either
unpopular decisions or erroneous decisions in good faith have never been able
to be prosecuted as misconduct in public office. To do otherwise would leave
judicial decisions subject to unwarranted interference from those who
disagreed with them on subjective including political grounds and thereby
undermine the independence of the judiciary.”

My Response

Based on the following facts, I submit that judges should remain on the list of
those liable for breach of duty. This law was originally aimed specifically at
those public officials whose misconduct would not be addressed otherwise.
Running a helpline for whistleblowers and families who have lost a loved one, I
have gathered evidence from thousands of helpline cases over sixteen years.

What this evidence confirms is that when a judicial verdict is questioned the
presumption is that the judge made an unpopular decision or an error. There
is no investigation whatsoever as “judicial independence must never be
questioned”. The term “unwarranted interference” has been applied so rigidly
that it has resulted in an approach of “no interference no matter how perverse
the judgment”. There was a time that this attitude was taken regarding the
conduct of police officers, and history has shown the harm done by such
complacency. All public officers should bear scrutiny.

“The remedy is appeal”?

Some would argue that appeal is a remedy in such situations, however this is
prohibited because most people barely have the funds to access the justice
system in the first place, let alone the costs of appealing such decisions. The
onus should not be put on the victim of judicial injustice. When a judgment
could only be addressed by a re-trial this is not an option because often a retrial
is with the same judge and is very difficult to obtain. Legal opinion from a wide
range of legal information resources is that an appeal on the grounds of bias and
misconduct is impossible to win.

Employment Tribunals

In those courts where there is not the safeguard of a jury or a transcript, the lack
of scrutiny has seriously undermined public confidence in the justice system.
Where there is access to a transcript such as in High Court cases, firstly the cost
is prohibitive so this prevents people from obtaining one, and the judge has the
unilateral power to amend any transcript before release, therefore is able to
remove any evidence supporting his/her own misconduct. Digital recording of
court proceedings by the public is forbidden so that is another obstacle to
justice.

Employment Tribunals have increasingly earned the reputation of a failing,
complacent, unjust and corrupt system as shown by the many comments in
response to “Is the tribunal system corrupt?”i
(Cunningham & Read 2014).

This reputation is a direct result of repeated concerns being presumed wrongly to
relate only to either unpopular or mistaken judgements. I deal with these two
elements as follows.

Judicial Mistakes?

I suggest that the following filter should be applied where a judge has failed to
deliver a verdict based on the evidence: if all the mistakes made in the judgment
are brought to a judge’s attention in writing along with the references to relevant
parts of the evidence that contradict the verdict, and the judge then amends the
verdict accordingly, I accept that the judge could have made a mistake
originally, as long as it was not a recurrent pattern indicating incompetence or
misconduct. Please see examples in Appendices 1-3 of documents submitted to
a tribunal.

If however all the alleged mistakes were pointed out to the judge and no action
was taken to amend the judgment then at this point the action becomes a
positive action to breach duty as it is an intentional act.

Unpopular Decisions?

If a decision is unpopular but is based on the evidence then there should be no
question of interference, however it must be borne in mind that a verdict can be
unpopular precisely because it is not based on the evidence and is therefore
untrue and unjust.

Harms and Wrongs

The evident harms to public confidence in the administration of justice and
harm to the public interest should be included in consideration but there can be
much more serious harm which I will demonstrate in the Case Scenarios
section.

Public Involvement

I am not a lawyer but I deal with reports of gross injustice everyday and none of
us needs to be a lawyer to contribute to this debate which affects everyone. I
believe there needs to be much more public involvement in law, unpaid except
for reasonable expenses of course as I have no wish to see a “gravy train”.

I suggest that in both law making and Crown Prosecution Service (CPS)
decisions there needs to be much more public scrutiny in the form of a public
panel randomly selected in a similar capacity to a jury. There have been a
number of widely publicised casesii iii that have been prosecuted wrongly
causing distress and wasting public money, as well as a number of cases that
were not prosecuted but should have been. The public interest is best served by
encouraging the public to be interested in matters that affect them, and to bring
much needed commonsense to decision-making.

Page 20. 2.34 The Law Commission consultation 229:
The seriousness test requires that the neglect or misconduct must be of such a
degree as to amount to an abuse of the public’s trust in the office holder. In
other words the breach must be one which merits prosecution not merely civil
law or disciplinary proceedings. There are a number of factors that can assist in
deciding whether the misconduct in question is serious enough to justify the use
of criminal law.

The likely consequences of the breach of duty. The offence itself contains no
requirement that the prosecution prove any particular consequence. The offence
is concerned with conduct, however the existence of a risk of adverse
consequences is relevant to the determination of whether the breach of duty is a
serious one.

The existence of an improper motive, for example, bad faith, dishonesty,
oppression or corruption may also be relevant. Some early cases refer to
dishonest, oppressive, corrupt or partisan motive being required as a separate
element of the offence. However the later cases contain no such requirement.
Motive may simply be taken into account when assessing seriousness.

Some circumstances may also result in the breach being viewed as more serious,
such as a breach of duty by a senior public official as opposed to the same
breach by a lower level official.

I have used the following three examples to highlight real and fully documented
cases and ask readers to decide if such cases occurred in future, whether the
remedy should be either:

a) Applicants who have already been in the legal system for two years, and
are consequently suffering great hardship already, should then be expected to
find the means to appeal on the grounds of “bias and misconduct”?

or

b) Should there be a procedure to investigate the evidence in relation to such
judgments and disciplinary procedures be in place or referral to the Crown
Prosecution Service (CPS) if required?

What currently happens is that if judges are disciplined or dismissed it is done
in total secrecy, the only way to obtain the information is through Freedom Of
Information requests which give only a general oversight and the number of
judges involved, but allows them total anonymity.

Also absolutely no consideration is given to any cases which may have been affected by these judges’ behaviour, in fact any potential victims of injustice would not even
know that the judge who tried their case had later been disciplined or dismissed.

Only a small number of judges are disciplined but the number of judges against
whom concerns are raised is kept secret (and the only reason I know this is
because such cases have been reported on our helpline). The tendency seems to
be that names come into the public domain of those who have committed for
example a driving offence, but the names remain secret of those whose conduct
as a judge has been found to be fault. We rightly demand accountability and
transparency for those judges who ignore evidence or reach perverse verdicts.

Do you think that any of the following cases “warrant interference” with a
judicial decision?

Case Scenarios

Case Example One:

Z is an Employment Tribunal Chairman who is judging a Public Interest
Disclosure Act (PIDA) case. The whistle-blowing involves the serious abuse of
vulnerable elderly people in a care home. Prior to the case going to court, the
PIDA prescribed regulator conducts a full inquiry and upholds the whistleblowing allegations in full.

At the tribunal directions hearing Z gives assurances to the defendant (ie the
employer) that the regulator’s inquiry report will not be disclosed in the
proceedings. The defendant subsequently chooses the defence of denying both
the disclosures and the harassment that forced the whistle-blowers to resign.
Z decides then to judge the disclosures himself, not only disregarding the
prescribed regulator’s report but contradicting that report in full in many
respects. His verdict includes criticism of the whistle-blowers for alleged
“exaggeration” on a particular disclosure relating to falsification of medical
records even though this disclosure is upheld in the regulator’s report by a
qualified independent pharmacist.

The whistle-blowers write a comprehensive response to Z two days later,
pointing out his errors, what the evidence says and what was heard in court, and
clearly indicating where in the court bundles the relevant documentary evidence
can be found.
Z chooses not to amend the verdict nor to respond. The whistle-blowers do not
have the financial means to appeal but they have tried to get the evidence
looked at to no avail. They also write to all the bodies responsible for the court
and complain about the conduct of Z, providing all the evidence and stating that
his actions amounted to Bias and Misconduct. The only response to this is that
no one could take any action as it would be to question a judicial decision.

The Harms and Wrongs in Case Example One

As the case related to Public Interest Disclosures, there can be no doubt that the
public interest has been harmed. Confidence in the administration of justice has
also been harmed. Judge Z exceeded his jurisdiction firstly in disregarding
evidence from the prescribed regulator, and then in ignoring this being brought
to his attention so his actions are clearly not a “mistake” but must be a
deliberate action.
As a result of Judge Z’s reference, the employer issued public statements
repeatedly suggesting the whistle-blowers were liars and referred to the Tribunal
judgment that claimed they had “exaggerated”. The abusive staff continued to
work for the defendant and some were promoted.
Within four years of Z’s verdict the company lost the contract for all six homes
in the area and a new company took over which issued a report to the local
authority listing comprehensive failings including:
 lack of disciplinary action against abusive staff
 staff who were not suitable to work with vulnerable people
 vulnerable residents in all the homes had suffered an exceptionally high
number of injuries and falls requiring hospital treatment
 lack of documentation
 statutory notifications had not been recorded or reported

Staff who had witnessed all of the above failures chose not to blow the whistle
on these because the fate of the previous whistle-blowers was common
knowledge.

If a newspaper had falsely accused the whistle-blowers of exaggeration they
would have had the remedy of libel laws but because the lie was in a judicial
verdict there was no remedy, ie a judge cannot be sued. In effect the whistleblowers were punished by their employers and then by the law for doing the
right thing.

Case Example Two

Judge Z is an Employment Tribunal Chairman Hearing a whistle-blowing PIDA
case. Again the case involves the abuse of vulnerable people at a care home.
There is a crucial piece of evidence to be judged. The evidence available to Z
consists of the following, including verbal evidence subject to crossexamination, and documents.
Evidence from applicant (ie the whistle-blower)

The whistle-blower reported abuse which has been investigated and
upheld by the regulator but the whistle-blower discovers that her
employer has ignored the regulator and attempted to place the abusive
staff member in another home owned by the company (Home A) on
August 31st
.
The whistle-blower discovers this and informs the regulator who contacts
the company director and objects to the abuser being employed in Home
A. The company director then places the abuser in another home (Home B)
and when the whistle-blower discovers this happened on August 31st, the
same date the regulator had contacted the company director about Home
A, the whistle-blower loses all trust in her employer.

Evidence from the company director

He says he saw no reason why he could not place the abuser in Home B
on August 31st.

No mention is made of Home A or the regulator’s objection and
instruction that the staff member is not suitable to work with vulnerable
people, besides already being on police bail for theft.

Tribunal witness statement from the regulator

When informed that the abusive staff member was to be redeployed to
Home A on the orders of the company director, the regulator telephoned
the director and objected as the staff member was believed to have been
involved in serious abuse and was already on police bail for theft.
The company director finally agreed to this but on the same date he
placed the abuser in Home B. The regulator confirms this evidence from
the staff records.

Judgment

The Tribunal verdict says the company director was a credible witness, that
when he was contacted on August 31st he agreed not to place the abuser in
Home A, and that it was not until November that he placed the abuser in Home
B.

Judge Z is informed by the whistle-blowers that his verdict contradicts the
evidence and he is directed by the applicant in writing to the evidence submitted
to the Tribunal, but Z chooses to ignore this.

The company director goes on to be a key Government advisor on care, and he
uses the Tribunal verdict to protect him from any criticism citing that the
Tribunal had found him to be “a credible witness”.

When there are two different versions of events then any independent evidence
available should be considered and reflected in the verdict. From three
versions of the same event Z came up with a fourth version of events that
was not supported by the evidence he had seen and heard.

In effect the company director could not be judged “a credible witness” if on the
exact same date he was stopped from placing an abuser in one home he went on
to place her in another home without the regulator’s knowledge and knowingly
against the regulator’s clear instructions. The only way to overcome all the
factual evidence that this person is not a credible witness is to create a
fabricated version to justify the perverse conclusion. When informed of this Z
declines to amend his judgement.

Harms and Wrongs in Case Example Two

 Serious harm to the public interest and trust in the administration of
justice.
 A person who disregarded the regulator’s concerns about a known abuser
and went on to hide this person in at least six other homes.
 All of these homes were subsequently reported to the authorities as
having serious failings in care.
 The whistle-blower suffered long term hardship, the company director
went on to be awarded an OBE for services to care and became a key
Government advisor on elderly care.

Case Example Three

Judge Z is an Employment Tribunal Chairman hearing a Public Interest
Disclosure Act case involving elderly people being deliberately and needlessly
sedated in doses not authorised by a doctor.

The employer fully denies the allegations of abuse as well as of causing
detriment to the whistle-blower. Weeks of evidence is heard showing how the
medication records were falsified, with the signed documents being presented in
court during cross-examination.

These records all uphold the whistle-blower’s version. The prescribed regulator
and an independent pharmacist both uphold the whistle-blower’s version.
The company director says that the company conducted an internal review and
found nothing wrong with how medication was administered.

The Tribunal concludes a few mistakes were made in medication and no
mention is made of all the independent expert evidence. The employer’s version
is the only evidence referred to in the verdict. The whistle-blower refers Z to
the 81 medication records presented in cross examination, the regulator’s report
and the pharmacist’s report but still Z declines to amend the verdict.

Harms and Wrongs in Case Example Three

 Serious harm to the public interest and the administration of justice.
 Excess of jurisdiction.
 Serious actual and potential harm to public health and safety.
 A short time later a resident from this home died and a coroner’s inquest
recorded an open verdict as the sedative drugs administered could not be
discounted as the cause of her death.
 Further widespread failures in the administration of medication in homes
owned by this same company were linked to numerous cases of death and
abuse, and still continue to occur.
 The evidence is that death rates in some of these homes have trebled
compared to similar homes.

The Invisible Crimes

All of the above scenarios and harms and wrongs came from just one case: the
Bupa 7. In total over 300 pieces of crucial evidence from the court bundles, and
which contradicted the verdict in full, were brought to the judge’s attention in
writing but to no avail. Please see Appendix 1 (BUPA7 response to verdict) for
this supporting evidence. So perverse were the conclusions that if all names had
been removed from the verdict the whistle-blowers would not have recognised
the judgment document as being about their case.

The harms and wrongs listed are all fact. The whistle-blowers tried to appeal
with no legal representation on Bias and Misconduct, which are grounds of
appeal widely regarded as impossible to win. However their appeal was
declined, the applicants were notified of this decision and informed they had
seven days to lodge an appeal, the decision was date stamped over a week too
late. Please see Appendix 2 (BUPA7 were illegally denied an appeal). When
the Employment Appeals Tribunal (EAT) was informed in writing, they refused
to address this and a High Court judge said “This could not happen” – until
confronted by the document.

The whistle-blowers then went to the President of Employment Tribunals and
sent all the evidence to Public Concern At Work (PCAW) appealing for help to
no avail. It has recently been accepted by PCAW that the Public Interest
Disclosure Act has failed.

Had earlier whistle-blowers’ concerns been acted upon by those notified, then
subsequent whistle-blowers would have been saved from the injustice inflicted
by an inadequate law in an unjust, unaccountable system.

The BUPA7 then went to the Department of Trade and Industry, their Member
of Parliament called for a public inquiry, and they petitioned Parliament three
times They went to the Prime Minister and the Health Department amongst
others and left no stone unturned.

There were over 200 pages of correspondence with Lord Falconer alone who
was the Lord Chancellor and responsible for judicial conduct issues. The
response was the same every time: “There can be no unwarranted interference
with judicial decisions”.

In fact the Bupa 7 case shows that they never stood a chance in the legal system
because the Tribunal chairman had given assurances to BUPA that the
prescribed regulator’s inquiry report would not be disclosed during the hearing.
Please see Appendix 3 for the final paragaph of the Ambache letter.

The BUPA 7 case clearly demonstrates the need for MIPO not only to be
retained but to be used as originally intended. The BUPA7 case showed
clearly that a crime of misconduct in public office was committed which has
never been prosecuted. This highlights the need to keep the current MIPO law
to ensure that all such injustice is addressed, not only the BUPA 7 case but also
many more in a system where transparency and accountability are not present
and where the harm to the public continues. In effect, like the BUPA7, victims
of injustice can “scream it from the rooftops” and still no-one is held to account.
The BUPA7 case, was the first case lodged under a new law The Public Interest
Disclosure Act 1998. The harm and wrong from that case is to every whistleblower
that came after them, and the case precedent that was set left the legacy

“When you see suffering and wrong, look the other way because the law will
not protect you if you speak up.”

The evidence heard in a court of first instance will never be subject to the same
scrutiny by any subsequent court, nor will any Government body instigate an
inquiry. This is because any future appeal hearing would only be on points of
law, and would not examine the full evidence.

Misconduct in public office consultation Page 98 re 3.240-3.241
“Again we must distinguish between two groups of cases, in one the bias,
prejudice or conflict of interest leads D into conduct that is wrong in itself and
would be wrong even if no bias, prejudice or conflict of interest were present.
In the other , the act or decision may have been correct in itself, but D was
wrong to act at all given the appearance of bias.”

In all these cases there is the basic wrong of breach of duty not to allow the
decision making process to be influenced or appear to be influenced, by bias,
prejudice or a conflict of interests. This is a breach of public trust in the
stronger sense. Where the act in question is a judicial or administrative
decision, there is also a breach of a duty of actual or perceived impartiality.”

Bias And Prejudice

I was one of a group of whistle-blowers who attended the Law Commission
consultation seminar on 20th January 2016. One of the panel speakers who gave
a presentation on why MIPO should be abolished was Clare Montgomeryiv of
Matrix Chambers who sits as a Deputy High Court Judge. Ms Montgomery
stated “Whistle-blowers break the law”. She launched a scathing attack on
Edward Snowden and displayed outright hostility in her tone, attitude and
responses to questions from whistle-blowers. She was challenged by Chris
Ledbrook, a Ministry of Justice whistle-blower who corrected her by stating that
he was a whistleblower and had not broken the law. Nor had any of the
whistleblowers in our group broken the law.

My concern is that were Ms Montgomery to judge a case involving whistleblowing
then her demonstrated high level of hostility could render her
judgments tainted by bias. When such open bias can occur in a Law
Commission consultation on the only law to hold such bias to account, this
demonstrates the vital importance of recognising the harm and injustice
hostility in the form of bias can cause. How perverse this was, given that at
the consultation event a fictitious scenario was discussed about the rights and
wrongs of a scenario involving a judge making a similar bigoted generalisation
at a private social event. In contrast, Ms Montgomery was representing the
case for abolition of MIPO, the very law which would recognise and redress the
potential harm caused by bias and prejudice to the fair administration of justice.

There is much debate in the consultation paper about identifying clearly what
the exact duties of individual public office holders are, in order to identify any
breach of those duties. There is no such question applicable to a judge in this
consultation paper. The public expectation is that a judge’s duty is to judge the
evidence and arrive at a decision based on that evidence.

I am not advocating that judges should not hold views on issues. They are
entitled to their opinions but if those views could have even the smallest risk of
interfering with their judgments they should declare this as an impediment and
not judge such cases. The judiciary hold such a degree of power that to render
them beyond scrutiny when genuine concerns are raised is not in the interests of
justice nor is it morally right.

If I was called to jury service in for example a care home abuse case, due to my
work and experience I would have such strong feelings about the issue that my
judgment would be affected and I would feel duty bound to declare the position
I hold.

If such a duty to declare a relevant interest is expected from an ordinary citizen,
should not the same duty also apply to those administering justice, and where
there has been a breach of that duty should there not be an expectation of
accountability?

“Who exactly is a public office holder?” seems to be the main area of
contention.

MIPO could be amended to have a list defining public office holders which
could be added to as required, to reflect the changing situation. What should be
measured is the level of trust and expectation in each public office holder.

Law Commission, Misconduct In Public Office Page 95:
“However we are aware that many of the same consultees as referenced (NB
This consultation event invitation was aimed “to engage with practitioners and
experts…” rather than the general public) also expressed anxiety that
complaints processes, which could give rise to disciplinary or regulatory action
against the decision maker are in fact inadequate as means of holding the
decision maker to account.

Daphne Havercroft, campaigner: My observations and experiences and those of
many members of the public, including victimised whistle-blowers, lead me to
conclude that these processes are rarely if ever adequate to deal with alleged
wrong-doing because those who have a public duty to follow the processes
repeatedly fail to do so with impunity.

Additionally most were concerned that civil or administrative law remedies
were beyond the means of most members of the public who might be affected by
the wrongful decision making,

Mr Barry Faith commented there must be a way for members of the public to
bring publicly appointed paid officials to account without having to bear the
cost of doing so. The cost of taking someone to court is prohibitive when faced
with a publicly appointed/paid official who can call on the services of their
organisation’s legal advisor for opinion/advice….

These are obviously important points to be considered, however the
inadequacies or otherwise of regulatory or civil sanctions are outside the scope
of this particular project. We cannot recommend how access to civil justice can
be increased or how employers, regulators and independent adjudicators can
be made more effective. Nor is it the function of criminal law to compensate
for deficiencies in the availability of civil sanctions.”

I disagree because these issues do indeed fall within the scope of the
consultation and it is the function of the criminal law to ensure that those
public office holders who have breached their duty are not allowed to continue
and cause further harm.

The MIPO consultation paper states that any lack of civil remedies is not the
concern of MIPO, but I disagree because it is certainly the function of
criminal law to hold to account those who can be proved guilty of
misconduct in administering justice in all settings including civil law (eg
employment tribunals). So if remedy is denied as a result of a judge’s
misconduct in any court, then MIPO is applicable. This is borne out by the fact
that the early MIPO prosecutions were against Justices of the Peace.

Case example of events that could happen

This scenario is included because the MIPO consultation specifically states they
cannot conceive damage to property being included on the list of possible harm.
A fire officer raises concerns that a closure or reduction in crews will lead to
damage to property or loss of life but is ignored. A short while later the fire
officer begins to experience victimisation by management, and smearing of his
reputation, culminating in dismissal. Please see Breaking The Silence Part 1v
for common patterns of such victimisation of whistle-blowers.

He takes his case to an Employment Tribunal but the evidence is not judged
fairly because C the chairman is hostile to whistle-blowers and fails to judge on
the evidence before him. Two years later a fire occurs resulting in large loss of
life and damage to property and an inquiry finds the events occurred as a result
of the station closure and/or reduction in crews which had been raised by the
fire officer as a foreseeable likelihood. The subsequent fire inquiry would
include an upheld verdict of the whistleblowing case.

Coroners’ Courts

Case Example: Death of Mr Rene Tkacik on Crossrail construction

A London coroner on the inquest into the death of Crossrail worker Rene Tkacik
refused to admit the evidence from a whistle-blowervi who had warned of the
same safety issues that led to the death of Mr Tkacik. All available evidence
should be examined and reasons given for any judgment. To refuse to admit
such evidence is a positive act of a breach of duty.

Case Example: Hillsborough

The coroners who gave the earlier Hillsborough verdicts vii have never been
investigated or held to account – in fact not a single Public Officer is yet to be
prosecuted and the media coverage has focused mainly on the conduct of only
one senior police officer, even though when the case is examined closely other
people should also be investigated for misconduct.

Ombudsman, Safeguarding, Local Authority

Case Example: Carmathen County Council whistle-blower Delyth Jenkins

Carmarthen whistle-blower Delyth Jenkins viii exploded the myth that those in
authority investigate and act when abuse of vulnerable people is involved.
Every single level of accountability failed the vulnerable and the whistle-blower
trying to protect them. Not a single person has been held to account in this case.

NHS:

There are far too many NHS cases to list here but the public will be aware of
media coverage of many cases in which clear misconduct has occurred by
people with a duty to the public, including victimisation of whistle-blowers.
It is important to remember that for every case in the news there are many more
which never come to public attention and no whistleblowing case, in the NHS
or any other sector, should be regarded as more important than any other.
The scale of misconduct with impunity is massive and it continues because
MIPO has not been used in cases where it should have been, against people in
posts where they have breached their clear duty to the public.

Who Is A Public Officer?

The List of Persons

This question seems to be the main area of contention with many proposals
being suggested. My concern is that this issue and the disagreement
surrounding it will result in Misconduct In Public Office being abolished. In
other words I do not want the best of MIPO thrown out with the worst. I
propose that the post holders of the following bodies should be designated as
Public Officers for the purposes of MIPO and will explain why:

Group 1: The Judiciary
All working in court settings, including coroners, Court of Protection etc.

Group 2: Law Enforcement
The Police, Probation, and Prison services.

Group 3: Crown Prosecution Service (CPS).

Group 4: Government
National and local government and Civil Service employees.
Non-Civil Service advisors who influence policy.

Group 5: All Investigating Bodies
eg Charities Commission, Monopolies & Mergers Commission,
Independent Police Complaints Commission, Care Quality Commission,
Care & Social Services Inspectorate Wales and many more.

Group 6: Professional Bodies

eg Nursing & Midwifery Council, General Medical Council, General
Dental Council and many more.

I have concluded that if all of the above had fulfilled their duty in the first
instance than most of the injustice, cover-ups, lack of accountability and harm
in cases brought to Compassion In Care would not have occurred, as well as
many reported elsewhere.

If MIPO is amended with a core list of this type which could be added to, that
would be the most efficient way to protect the public from the harm and wrong
which continues to occur. In the next section I will give examples of how the
above groups are linked but accountability is essential and the buck has to stop
somewhere. Currently we have no “buck” and no “somewhere”.

The Judiciary

“All Public Officers That Administer Justice” (MIPO consultation paper)

Why? Because of the degree of power held by judges any breach of duty can
cause serious repercussions. I have given some case examples but what should
be considered is not just the breaches that occur, but that no organisation or
system is in place that recognises the difference between “warranted
interference” and“unwarranted interference” which is a crucial distinction.

No public officer should be beyond scrutiny or the law. When those who seek
legal protection for harm suffered as a result of genuinely acting in the public
interest are wronged by the law, then that is a benchmark of injustice. Can any
justice system claim to uphold the public interest while whistle-blowers are
treated unjustly?

Direct links between these categories and examples

In criminal courts the Judiciary rely on the Police to have fulfilled their duties
in investigating and gathering evidence. For example, if the Police fail to
investigate adequately or at all, this failure will link to the CPS being unable to
prosecute.

In other areas of law there are many interlocking connections, for example
when a prescribed regulator fails to investigate this may well have an impact
in a judicial setting and so on. When a coroner fails to consider evidence this in
turn can link to how the Police or CPS act. Where there has been a breach of
duty the full impact of that breach needs to be considered.

The Police and Prison Officers

How the police conduct themselves whilst preventing or investigating crimes
must include under-cover operations eg “Spy Cops”ix forming relationships with
activists in order to spy for the State. If a junior officer was acting on the
command of a senior officer it should be the senior officer held to account.
In a prison situation where staffing numbers were cut and as a direct result
crucial paperwork was not completed, the person(s) responsible for the situation
should be held accountable, not a junor post holder scapegoated.

Government

Government also has the power to hold regulators to account and ensure that
private companies operating publicly funded contracts should conduct their
business effectively and ethically. Eg in the Southern Cross care scandal, in the
years preceding the collapse, evidence of abuse was being reported repeatedly
to regulators and to successive ministers, all of whom breached their duty by not
taking action. The phrase that sums this up is Who knew What, When, and
What action did they take?

It should also be a duty to ensure that any Government advisor who is
influencing policy is beyond reproach in their conduct. I include in this
category Government advisors who are not civil servants.

Government links to law so there should be a duty to act on concerns about
particular laws if the inadequacy of those laws is causing failures that allow
criminal activity and a prime example of this is the Public Interest Disclosure
Act about which we have petitioned Parliamentx xi.

Bodies With a Duty to Investigate and Protect

These would include all those authorities and regulators, for example
Healthcare, Prison, Financial, Legal, Safeguarding Boards. This section of
Public Officers alone accounts for over half the failings brought to our attention.
The below examples are taken from our evidence:

1. In a single establishment in a period of eighteen months over 150 separate
safeguarding alerts were investigated by the Local Safeguarding Board, all
related to sexual assaults on vulnerable adults. Each alert was looked at
separately, no consideration was given to the overall picture. Some alerts were
upheld, some were inconclusive and some were not upheld. The regulator
mentioned none of this in their inspections which totally misled the public as to
the true situation.

2. In another establishment with a long history of abusive and neglectful
behaviour the local Safeguarding Board failed again and again to take action.
We obtained Freedom Of Information (FOI) requests which revealed the
manager from the problem establishment was a permanent member of the
safeguarding board. The regulator also sat on this board and saw no conflict of
interest in this situation. The fact that the members’ identities had to be obtained
by us via FOI is hardly an indicator of transparency and there was clearly a
wilful attempt to mislead the public. Please see Wentworth Cross in Breaking
The Silence Part 3 xii.

3. Breaking the Silence Part 3 also includes the information that a
Safeguarding Board took a vote on the evidence of abuse. Fortunately three of
the five members upheld the abuse – the other two were in fact those responsible
for the abuse in the first place. Would a jury be allowed to include a vote from
the accused?

4. The BBC Panorama “Behind Closed Doors”xiii featured our work and
followed a case where whistle-blowers contacted us after raising their concerns
with their employers, Safeguarding and the CQC to no avail.
Panorama went into The Old Deanery care home and filmed the abuse.

The regulator inspected the home during the undercover filming and rated
it “compliant”. As a result of Panorama’s filming there was a Police
investigation and subsequent CPS prosecution. Three abusers were jailed
and will never be able to harm vulnerable people again but no-one was
held to account for failing to act on the whistle-blower concerns
which could have prevented the abuse much earlier. Panorama should
not need to be a replacement regulator to stop public officers breaching
their duty.

5. The CQC as regulator was given copious independent evidence that an
individual had facilitated abuse by failing to take action on reported abuse of
elderly people and then, knowing that evidence, concealing an abuser in
employment in other homes. This individual later became a respected key
advisor to both Government and the CQC, whose senior management recently
contributed to a public statement of support and thanks to the person in the
video tribute “Dear Des” xiv.

These examples are just a tiny proportion of our evidence. Following the
Panorama broadcast we were contacted by over 4000 other whistle-blowers who
identified with the issues in the programme. The scale of human suffering is
beyond words and for every whistle-blower who risked their job to try and
protect the vulnerable there is an authority who failed to act. We campaign for
Edna’s Law specifically to protect the whistle-blowers but ultimately it is MIPO
which should hold to account the authorities that fail to act on whistle-blowers’
concerns.

Professional Bodies with a Duty to Protect, Investigate and apply the
Natural Laws of Justice in Misconduct Hearings etc

NMC & GMC

The main concerns we receive about the NMC and GMC are as follows:
Whistle-blowers being smeared and malicious counter-allegations are the
motive for a growing number of referrals and more investigation needs to take
place in order to recognise this issue. There needs to be accountability for those
who have made false accusations and who are under the discipline of
professional bodies eg see the case of Dr Raj Mattu xv.

Many people report to us that vital evidence is not being considered in relation
to the charges that go through to a full hearing, and that no satisfactory
explanation is given as to why such evidence is being excluded. The
investigation and assessment of evidence prior to any decision to go to a hearing
is the problem.

If evidence is not to be included then there should be a written explanation as to
why. When people raise concerns with these bodies they are not treated as vital
witnesses who know the evidence. Instead they are largely excluded from the
preliminary process and that is certainly part of the problem.

How It Would Work

These six groups of public office holders all interlink but in every single case
they are at the heart of the problem. Every cover-up, tragedy, injustice, harm
and wrong reported to our helpline can be traced back to these six groups. Bad
things happen when those holding positions of power are beyond scrutiny or
accountability for misconduct.

When a judge in a case for example such as the BUPA 7, has been informed in
writing that over 317 pieces of independent evidence contradict the verdict
in full and yet still the judge declines to comment or act on this, then it is an
obvious and fundamental breach of duty which reaches the criminal threshold
and the MIPO seriousness test.

MIPO is a crime that needs a specially trained and properly resourced national
investigation unit as it would not be practical to be run by local police forces, as
many cases involve consequential harm to the public across wide geographical
areas.

There also needs to be a major change of culture and that can only change with
accountability. We would not expect a police officer to approach a burglar
about to break into a house and say “Put that pane of glass back and we will
say no more about it.” Yet this is an approach safeguarding, regulators and
others listed in the six groups take every day.

When the truth is ignored because the person responsible is in a powerful
position which allows them to hide behind a shield of “no unwarranted
interference”, no matter what supporting evidence is available, it is a
fundamental breach of trust.

So many people have had to fight the justice system for decades to get justice
such as in Hillsborough, Bloody Sunday, the Child Abuse Inquiry, and many
more. There is an endless list of abhorrent wrongdoing that shames us as a
country and the only law that could be used to hold these people to account is
MIPO.

I repeat what I wrote at the start of this submisssion: a crucial point is that
if any new law replaced MIPO it would not have retrospective power. The
act of attempting to abolish MIPO is the very reason we need such a law in
the first place. There may be some who may prefer MIPO to be abolished
for their own interests.

I submit we keep MIPO with the suggested amendments above and actually use
this law in the way it was clearly intended to be used because interference in
injustice is ALWAYS warranted.

Eileen Chubb
BUPA 7 Whistle-blower
Founder & Director of Compassion In Care
Co-Founder of The Whistler
www.compassionincare.com
www.thewhistler.org

___________________________________
References:

i Cunningham N, Reed M et al, 2014 http://etclaims.co.uk/2014/03/is-the-tribunal-system-corrupt/
ii http://www.independent.co.uk/news/uk/home-news/man-falsely-accused-of-sexually-assault-on-actress-wantsapology-from-cps-over-bemusing-case-a6877036.html
iii https://www.theguardian.com/uk-news/2013/sep/10/michael-le-vell-acquitted-child-abuse
iv Clare Montgomery QC http://www.chambersandpartners.com/uk-bar/person/227977/clare-montgomery
v Compassion In Care Breaking The Silence Part 1 http://www.compassionincare.com/node/9
vi Mr Rene Tkacik’s inquest
https://usilive.org/whistleblower-denied-permission-to-give-evidence-on-crossrail-death/
vii Hillsborough http://www.contrast.org/hillsborough/history/inquest.shtm
viii Delyth Jenkins http://www.compassionincare.com/sites/default/files/breakingsilence/W-B2.pdf
ix Police Spies Out of Lives https://policespiesoutoflives.org.uk/
x John Horam presented petition to Parliament http://www.compassionincare.com/node/10
xi Charlotte Leslie MP presented petition to Parliament https://youtu.be/HiXsMgqQvi8
xii Breaking The Silence Part 3 http://www.compassionincare.com/node/168
xiii BBC Panorama “Behind Closed Doorshttps://youtu.be/guETCAUsY2M
xiv ACC-TV “Dear Des” tribute video including CQC leaders https://www.youtube.com/watch?v=hrrLIB-B638
xv Dr Raj Mattu https://sharmilachowdhury.com/2016/02/10/press-release-from-dr-raj-mattus-legal-team/

Dedications:

This report is dedicated to all those victims of injustice who were brave enough to submit
their evidence and who have been fighting for years for justice, and particularly to those
victims like Edna who did not survive.

A special dedication also to all those in public office who do work hard for accountability,
and who will never budge from the truth, no matter how much pressure is put on them by the unscrupulous to do so.

We remember in this respect Mr Richard Turner, a man of great integrity, now sadly deceased.

Acknowledgements:

With thanks to Stephen Honour and Christine England for their invaluable help and support in preparation of this report.
Please see the following pages for Appendices 1-3 for some of the documents from the
BUPA7 case.
In some cases image quality is suboptimal but the reader should be able to obtain a
useful insight from these documents and further details will be provided on request so
please contact info@compassionincare.com with any queries.

Appendix 1 BUPA 7 Response to verdict

Copyright Eileen Chubb

_______________________________________
source: A REPORT BY EILEEN CHUBB – Should We Abolish Accountability?
A Special Report on “Misconduct in Public Office” | Eileen Chubb | October 2016

_______________________________________

Appendix 2

Appendix 3

#PublicInterestDisclosureAct: Send this letter to your #MP to help protect #UK #Whistleblowers!

Quote

Send this letter to your MP to help protect UK whistleblowers

By Minh Alexander and Clare Sardari @SardariClare, NHS whistleblowers, 18 May 2018

 

Whistleblowers speak up to protect other people’s rights and to prevent harm to the public.

It is up to parliament to pass good enough law to protect UK whistleblowers, and ensure that they are not silenced or victimised.

The current law, the Public Interest Disclosure Act 1998, has been in place for twenty years. It has failed to effectively protect whistleblowers. Whistleblowers are united in calling for the current law to be replaced

There many reasons why current whistleblowing law does not work, but here are three key changes that whistleblowers are asking for:

Screen Shot 2018-05-18 at 09.12.14

If a better law is passed, it should help discourage mistreatment of whistleblowers. This would help reduce the need for costly legal action, which in many cases involves a waste of public money by employers who try to cover up.

This is some of the campaign work that is taking place, and some more reasons why whistleblowers are asking for the law to be improved:

A Whistleblower-Led Event on UK Whistleblowing Law Reform: The Public Interest Disclosure Act Needs to be Replaced

This a short summary  by the European Centre for Whistleblower Rights of an extensive report by Blueprint for Free Speech, which shows how UK whistleblowing law has fallen behind that in other countries:

Protecting Whistleblowers in the UK: A New Blueprint

If you would like to help to protect whistleblowers, please take a few minutes to look at the following brief letter. If you agree, please email a copy to your member of parliament.

You can search for your MP by following this link: Find My MP

A Word version of the letter can be downloaded here.

Please copy your letter to the UK Law Commission, which is responsible for conducting reviews of flawed law. The Commission’s email address is email address communications@lawcommission.gsi.gov.uk

We’d love to know how you get on. It would be great if you could drop us a line through the contact page on this website.

Thank you!

Minh Alexander and Clare Sardari, NHS whistleblowers

 

LETTER TO MPs:Dear [INSERT MP’s NAME],

I write to ask if you will kindly support the introduction of better legislation to protect UK whistleblowers.

The current legislation, the Public Interest Disclosure Act 1998 (PIDA) has failed to protect countless UK whistleblowers when they have protected others by bringing wrongdoing to light.

All that PIDA does is allow workers to sue for compensation after they have been seriously harmed as a result of whistleblowing. For example, if they are unfairly dismissed. That is too little too late, and most whistleblowers are unsuccessful when they attempt legal action under PIDA, because the Act is so weak and poorly written.

Our society should make it easier for citizens to act in the public interest without fear of victimisation. Whether it is about ensuring safer care in our hospitals, protecting vulnerable older people from abuse in care homes, exposing fraud or any other risks to the public, whistleblowers must be allowed to speak up. Many scandals would be hidden if were not for the actions of whistleblowers. They are essential to democracy.

For a fairer, more open society I ask you to support replacement of PIDA. Any new legislation should:

1)   Make it compulsory for whistleblower’s concerns to be investigated

2)   Ensure that there is a legal duty by employers and regulators to protect whistleblowers from the point at which they whistleblow

3)   Include meaningful penalties for individuals who victimise whistleblowers, including criminal sanctions for serious reprisal.

I would be grateful if you would raise this matter with the government by writing to the Secretary of State for the Department for Business, Energy and Industrial Strategy to champion the case for reforming UK whistleblowing law.

Yours sincerely,

[SIGNATURE]

 

cc Law Commission communications@lawcommission.gsi.gov.uk

 

via Send this letter to your MP to help protect UK whistleblowers

#Accountability #MisconductInAPublicOffice: Can politicians lie about public money? Boris #Johnson wins court challenge over £350m #Brexit claims!

Tory MP defeats summons to appear over allegations of misconduct in a public office

The Zionist attempt to create a secular-national movement based on Jewish identity could not help but have a religious messianic component. From there it was inevitable that it would turn racist

Modern AfroIndio Times

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Yoav Rinon // The shaping of German national identity began at a time when there was neither a nation-state nor an appropriate political order to channel and contain nationalist feelings among the people of the various lands of what now constitutes contemporary Germany. Imagination filled the vacuum that existed in reality, and literature (especially poetry) and philosophy, rather than politics, came to the fore.
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Several decades after that, toward the end of the 19th century – in a similar context of neither a nation-state nor an appropriate political order existing to channel and contain nationalist feelings – another new national identity began to develop, one that led, eventually, to the creation of a Jewish state in Mandatory Palestine.
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The similarity between the two identities, albeit accidental, is striking; yet, unlike the German identity, which had a strong national focus, the developing Jewish identity revolved around the religious no less than…

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