Liberty Safeguards – Executive usurps Court of Protection? Tail wags dog.

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Liberty Safeguards- Executive usurps Court of Protection? Tail wags dog.

 

Surely there must be some safeguard/check on such a ginormous thing as the removal of any citizen of England and Wales’s legal competency?

But there isn’t.

1984-poster-3 Liberty

Our government’s proposals to rename and extend Deprivation of Liberty Orders with Liberty Protection Safeguards and create Approved Mental Capacity Practitioners will as the government state;

ensure that the design of the new system fits with the conditions of the sector, taking into account the future direction of health and social care.

Shouldn’t the government ensure that  care is fit for purpose and not merely for’the conditions of the sector’ whose overriding motivation is to make profit ?

So government ‘fits the sector’, a for profit one, by allowing it to be autonomous, self regulating and enforce the MCA.

And outsourcing LAs and NHS CCGs are given the power to remove an individual’s legal competency via a paid MCP rather than a COP judge,  to harvest those from whom corporate profit is made without independent safeguards.

Smashing Art 12 (1) European Convention on Human Rights, Art 5 Right to Liberty, Art 8 Right to Family Life. and Art 6 Right to a Fair Hearing.

So this is the Tory’s shrinking state and social conscience?

https://finolamoss.wordpress.com/2015/12/03/the-convention-on-the-rights-of-persons-with-disabilities-be-their-voice/

With the conflicts of interests of LA and CCGs approving and paying the Mental Capacity Practitioners and commissioning the care providers.

The incomprehensibility and unworkability of the Mental Capacity Act the most draconian and only Act of its kind in the world is legendary.

And now an approved mental capacity assessor is effectively charged with enforcing it.

The MCA barely got through Parliament, even with a large Labour majority and took two years to get through the House of Lords and then was made subject to a review .

And this review was devastating.

The House of Lords Select Committee in March 2014 found
’ the poor implementation of the Act by health professionals, is to some extent, symptomatic of a wider marginalisation of mental health issues’.

The College of Social Work giving evidence that the Act was,

‘ not fully understood by professionals, as an enabling piece of legislation, while families and carers painted a depressing picture of their exclusion from decision making’.
https://finolamoss.wordpress.com/2014/11/18/power-of-state-given-by-mental-capacity-act-05-house-of-lords-select-committee-findings/

Despite this, nothing was done to end the MCA’s illegal implementation, nor involve the family or service user, the executive merely increasing MCA ‘awareness’.

And now it appears handing its implementation to its chosen for profit service providers via their commissioners.

https://finolamoss.wordpress.com/2016/03/15/national-mental-capacity-action-day-an-executive-subversion/

Surely there must be some safeguard/check on such a ginormous thing as the removal of any citizen of England and Wales’s legal competency?

But there isn’t.

Once a person is even suspected of being ‘incapable’, a term ever more diluted to in the Care Act  ‘difficulty making decisions’, he, nor his family can effectively apply to the Court of Protection.

An application for Guardianship is expensive, revocable and need recommendations from those caring for the suspected ‘incapable’ ie GPs , Social workers who will be part of the state private care pathway and MASH.

Powers of Attorney are being voided on the grounds of incapacity and the only representation allowed and funded is via an on message Official Solicitor.

Dols are of a precarious legal nature created in 2009 on the excuse of the incompatibility between English Common law not the MCA with Art 5 of the ECHR (right to liberty) as revealed by HL v UK.

https://finolamoss.wordpress.com/2017/03/18/the-precarious-legal-nature-and-creation-of-deprivation-of-liberty-safeguards/

Dols do not exist under the equivalent Scottish MCA but appear now to have been made the tail that wags the MCA dog, as the numbers of Dols applications soar to 0.5% of the population.

https://finolamoss.wordpress.com/2017/03/10/care-providers-applied-for-deprivation-of-liberty-over-0-45-of-english-citizens-with-a-380-success-increase-since-201314/

A Summary of the Law Commission’s Recommendations

http://www.mentalcapacitylawandpolicy.org.uk/law-commission-deprivation-of-liberty-report-the-government-responds/

5. A new system

DoLS should be replaced with Liberty Protection Safeguards. Liberty Protection Safeguards, authorisations should be in place in advance of any deprivation of liberty and should apply to those aged 16 and above and should be capable of applying in multiple settings.

So 16 to 18 year old in schools, care homes and their own home can now be made subject to huge control.

6. Authorising Liberty Protection Safeguards – Hospital trusts and CCGs should be responsible bodies as well as local authorities;

a capacity assessment, medical assessment and necessary and proportionate assessment should be completed before an Liberty Protection Safeguards assessment is authorised; authorisations are to apply for some people whose capacity fluctuates;

So the use of Dols is extended to those deemed to have ‘fluctuating’ capacity ie the epileptic, diabetic and those under the effects of medication. How does this fit with the MCA need to maximise capacity ?

and a responsible body ( LA/CCGs) should in some circumstances be able to rely on previous capacity and medical assessments.

This is in breach of MCA which states blanket capacity assessment can’t be made, as assessments must be time and decision specific.

7. Independence – Assessments should be independently reviewed and a new Approved Mental Capacity Practitioner role is to be created, and assessments should be referred to them

This new role is likely to be like AMHP  a person will be registered and trained by LA and it is a role not a job so they are most likely to be social workers either agency or employed by LA or nurse practioners employed by NHS so anything but independent as LA/CCGs are outsourcers/commissioners for private hospital/care providers.

if there is an objection to the arrangements or in “harm to others” cases.

‘Harm to others’, is a MHA sectioning requirement not an MCA one, and, it is an additional one for sectioning, not an alternative one,  suggesting MHA will be changed to an alternative requirement making it easier to  MHA section.

8. Renewals – An authorisation should last for up to 12 months, after this a responsible body should be able to renew them for up to another 12 months and then for up to three years.

So the present yearly review of Dols is removed after 2 years.

9. Advocates and Appropriate Persons – An Independent Mental Capacity Advocate should be appointed unless a person does not consent or it is not in their best interests, or if the local authority determines there is an appropriate person to support and represent the individual.

So even an incapacitated’s right to consultation via an IMCA can now removed at the behest of the state.

10. Interaction with the Mental Health Act – Liberty Protection Safeguards should not apply to arrangements in hospital currently authorised by the Mental Health Act and the government should review mental health law in England and Wales with a view to introducing a single scheme to cover non-consensual care for the treatment of both physical and mental disorders when an individual lacks the capacity to consent.
This appears to suggest the incapable will be removed from MHA to MCA for all treatment.

Appears to signal the removal of the need for MHA section, if a person lacks capacity, allowing easier detainment in mental hospitals with no right to refer to a mental tribunal. 

11. Wider Amendments to the Mental Capacity Act – Past and present wishes and feelings should be given greater weight as part of best interests decisions,

these are in any event required  by the MCA, but who checks and enforces this has happened as courts will not interfere in service provision.

the statutory defence under Section 5 of the Mental Capacity Act should not be available for certain important decisions unless written records are kept,  merely enforces documentary evidence not that the decision was reasonably required.

the Mental Capacity Act should be amended to allow emergency deprivations of liberty so liberty can be removed at any time and post factum justified

as long as a written record is provided afterwards and an individual should be able to bring civil proceeding against private care home and hospital providers if there has been an unlawful deprivation of liberty.

Who would have the locus standi to commence civil proceeding not the family only the service user and he has no capacity to litigate at best it could be through an Official Solicitor appointed by the state to sue the state.

Cause of action is practically non existent, as provided care providers/hospitals act reasonably on the balance of probabilities an action will not succeed.

And damages will be nominal, so what independent lawyer would take on such an action on a no win no fee basis and the loser would be ordered to pay huge corporate lawyers bills of both service provider and NHS/LA commission.?

This surely therefore can’t even amount to a sop to accountability.

Our Response
12. We thank the Law Commission for completing a comprehensive report into mental capacity and Deprivation of Liberty Safeguards and we have considered their recommendations carefully.

13. We agree in principle that the current DoLS system should be replaced as a matter of pressing urgency and we have set out our provisional stance regarding each specific recommendation below.

14. We will legislate on this issue in due course. However, before the introduction of any new system, we will need to consider carefully the detail of these proposals carefully and ensure that the design of the new system fits with the conditions of the sector, taking into account the future direction of health and social care.

It is clear from the following passage from the Government’s interim Mental Health Act Review the government intend to assimilate the MHA and MCA which is not good news as the later has been shown to be unworkable

It will be necessary very carefully to consider the interface between the MHA and the MCA more widely. Should MCA concepts of Powers of Attorney, Advance Decisions to Refuse Treatment, and court-appointed Deputies have a role in care governed by the MHA? Should we join up advocacy services provided by both pieces of legislation, possibly with other health advocates, to produce a unified and accredited service? Surely it should be possible to standardise the legal oversight between the Court of Protection and the Mental Health Review Tribunals so that at least issues of detention can be dealt with by the same tribunal. It may also be necessary to consider if and how their jurisdictions could be widened.
There are other areas in which we are also clear, even at this early stage, that change is

via Liberty Safeguards- Executive usurps Court of Protection? Tail wags dog.

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Researchers Discover #Neanderthal Child Was Devoured by a Giant Bird — TIME

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Researchers Discover Neanderthal Child Was Devoured by a Giant Bird | ALEJANDRO DE LA GARZA  | TIME | 15 Oct 2018

 

 

TO GO WITH AFP STORY BY PHILIPPE SIUBERSKI Cave specialist Christian Casseyas shows the latest area to have been searched by archeologists as he gives a tour of the Goyet cave, where 96 bones and three teeth from five Neanderthal individuals were found, in Goyet, Belgium, on December 19, 2016. Deep in the caves of Goyet, in present-day Belgium, researchers have found the grisly evidence that the Neanderthals did not just feast on horses or reindeer, but also on each other. / AFP / EMMANUEL DUNAND (Photo credit should read EMMANUEL DUNAND/AFP/Getty Images)
EMMANUEL DUNAND—AFP/Getty Images

The oldest human remains discovered in Poland were found a few years ago, but it’s only recently that scientists have uncovered the unfortunate fate of the Neanderthal to whom they once belonged.

It was only this year that researchers discovered that the bones, found amid the remains of animals, actually were once those of a Neanderthal child. A Neanderthal child, it turns out, that was eaten by a giant Ice Age-era bird, reported Science in Poland.

The bones, determined to be phalanges from the child’s hand, were dotted with dozens of holes and that was the clue that led researchers to determine what happened to the body.

“Analyses show that this is the result of passing through the digestive system of a large bird,” said Prof. Paweł Valde-Nowak of the Institute of Archeology of the Jagiellonian University in Kraków, according to Science in Poland. His team discovered the bones in Poland’s Ciemna Cave. “This is the first such known example from the Ice Age.”

The bones are the oldest human remains ever discovered in Poland by about 50,000 years.

Scientists think that the bird may have attacked and eaten the 5 to 7-year-old child. It may also have fed on the child after it had deceased.

Science in Poland reports that the team’s identification of the bones was confirmed by two anthropologists, Dr. Anita Szczepanek of the Jagiellonian University in Kraków and Prof. Erik Trinkaus of Washington University in St. Louis.

The 1-centimeter long bones are poorly preserved, precluding the possibility of DNA analysis. However, the scientists are confident that they are the remains of an ancient Neanderthal child.

“We have no doubts that these are Neanderthal remains, because they come from a very deep layer of the cave, a few meters below the present surface,” said Valde-Nowak. “This layer also contains typical stone tools used by the Neanderthal.”

Though the phalanges were discovered years ago, recent detailed laboratory analysis identified the remains as human.

Up until this discovery, the oldest human remains yet discovered in Poland were three Neanderthal molars found in Stajnia Cave in the Kraków-Częstochowa Upland, which were estimated to be between 42,000 and 52,000 years old.

Neanderthals (Homo Neanderthalensis) a close relative of modern man (Homo sapiens) are thought to have appeared in Europe about 300,000 years ago before mostly dying out by about 35,000 years ago, according to Science in Poland.

The discovery of the child’s bones is significant for scientists seeking to learn more about ancient humans in Europe.

“We can count the Neanderthal remains found in Poland on the fingers of one hand,” said Valde-Nowak.

via Researchers Discover Neanderthal Child Was Devoured by a Giant Bird — TIME

Five painful instances the #CIA deprived #Africa of its promising leaders!

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Five painful instances the CIA deprived Afrika of its promising leaders | Moorbey’z Blog | 14 Oct 2018

It is no secret that the West has had a hand in turmoils and conflicts in Africa.  From slavery to colonisation, these western countries have put African countries in dire straits in terms of economic, political, and social development.

These interference has also been seen as far back as the 1950s when most African countries were agitating for independence and later after they gained independence.

America’s Central Intelligence Agency  (CIA) has been documented to have interfered with Africa’s post-independence government formation and establishment, either by helping depose promising leaders or installing brutal dictators, or both.  In most cases, it was successful and in others, they were not

Patrice Lumumba

In the 1960s, America had made it clear that they were concerned about communism in the Congo, which would have taken root if democratically elected Prime Minister Patrice Lumumba ran things.

According to documents, there had been a plan by the CIA to ‘remove’ the charismatic leader, endorsed by then U.S. President Dwight Eisenhower.  Apparently, the agency wanted to poison Lumumba’s toothpaste. According to then CIA field officer in the Congo:

“Sid was Head of the Technical Services Division, which was the one that provides all kinds of special equipment. He was Q, if you will, if you’ve seen a 007 movie. He arrived with some toothpaste, which would put the man away and some other poison of some sort, which I don’t remember what form but it was there. I was supposed to find some way to use it and I didn’t. I eventually threw it in the Congo River when time of, it had expired, its usefulness had expired.

With the plan now abandoned, the U.S. turned to support the opponents of Lumumba. They did nothing as Lumumba was tortured and arrested by the leaders of the time.  They were even aware of the move by the government to take Lumumba to Katanga, the home of his sworn enemy where he met his death.

More declassified information from the U.S. also indicated that CIA gave Mobutu Sese Seko and Joseph Kasavubu money and arms to fight against Lumumba’s supporters.

Although the CIA was not directly involved in the assassination of one of Africa’s sons, it surely contributed to robbing Congo and Africa of one of the charismatic leaders it ever knew.

Kwame Nkrumah

The CIA has also come under criticism for contributing to the overthrow of Ghana’s first president, Kwame Nkrumah.  They are said to have advised and supported the coup plotters ahead of the February 1966 overthrow. According to records, a group known as 303 Committee had rejected an earlier CIA request to overthrow Nkrumah’s government which had annoyed the U.S. for maintaining ties with the Soviets and China. This also tied to the Upper Volta Dam as well as the aluminium project in Ghana, which the U.S. had financed in part.

Records show that the U.S. Embassy in Ghana had prior knowledge of the coup and had been planning to induce his downfall.

(6)Although Nkrumah’s leftward progress cannot be checked or reversed, it could be slowed down by a well conceived and executed action program. Measures which we might take against Nkrumah would have to be carefully selected in order not to weaken pro-Western elements in Ghana or adversely affect our prestige and influence elsewhere on the continent.

(7)U.S. pressure, if appropriately applied, could induce a chain reaction eventually leading to Nkrumah’s downfall. Chances of success would be greatly enhanced if the British could be induced to act in concert with us.

(8)Failure to act can only result in a further deterioration of the situation to the point where we may feel compelled to leave Ghana, thereby facilitating the chance of Soviet success.

The plan also involved painting Nkrumah as a danger to other African countries and thus isolating him.

Nkrumah was successfully deposed on February 24, 1966, when he was in Vietnam for a meeting with Ho Chi Minh.  A memo was sent to President Lyndon B. Johnson to update him on the aftermath of the coup. It read:

The coup in Ghana is another example of a fortuitous windfall. Nkrumah was doing more to undermine our interests than any other black African. In reaction to his strongly pro-Communist leanings, the new military regime is almost pathetically pro-Western.

Nelson Mandela

An American diplomat recently revealed that Nelson Mandela would not have been arrested in 1962 if not for a tip-off from the Central Intelligence Agency.  The CIA was afraid of his connections with communists and thus informed the South African police of his whereabouts. Mandela would be arrested and sentenced to five years in prison.

In 1963, Mandela and three others were charged with four counts of sabotage and conspiracy to violently overthrow the government and were later sentenced to life imprisonment.

Donald Rickard, who served as the US vice-consul in Durban and was a CIA operative, revealed the agency’s involvement in the capture of Mandela just weeks before he passed away. He said:

Mandela would have welcomed a war. If the Soviets had come in force, the United States would have had to get involved, and things could have gone to hell. We were teetering on the brink here and it had to be stopped, which meant Mandela had to be stopped. And I put a stop to it.”

Popular Movement for the Liberation of Angola (MPLA)

In Angola, the CIA tried to stop the MPLA from taking over the country during independence in 1975 because of its affiliation with communist nations.  According to declassified information, the agency was trying to prevent a communist takeover, and thus put its weight behind the  National Front for the Liberation of Angola and the National Union for the Total Independence of Angola.  They were however not sure that their effort would be successful.  Throughout the civil war, the U.S. supported UNITA.

The MPLA was however successful and its leader, Agostinho Neto became the first president of Angola until his death in 1978.

Supporting Chad’s Hissene Habre

In Chad, the CIA supported one of Africa’s dictators Hissene Habre when he overthrew the government and throughout his rule in the country.

He was used as a tool by the Americans to fight against Libya’s Muammar Gaddafi under Ronald Reagan’s order. They formed a partnership with Habre and the first order of business was to put him in office.

Weapons from the U.S. found their way to Chad after a meeting between a CIA agent in Sudan and Habre and his team. Soon after, Habre made his way to N’Djamena and declared the establishment of  Chad’s “Third Republic”.

With the same weapons given to fight America’s war against Libya, Habre turned on his people.  He killed at least 40,000 people amid other human rights violations including rape and sexual assault.

According to Human Rights Watch, the extent of Habre’s atrocities was only revealed after he was deposed in 1990.  This was allegedly due to his close association with the U.S. and France, which had provided the support he needed during his tenure.

A former senior U.S. official said that the U.S. was aware of how bloodthirsty Habre was but decided to turn a blind eye to his activities.  “Habré was a remarkably able man with a brilliant sense of how to play the outside world. He was also a bloodthirsty tyrant and torturer. It is fair to say we knew who and what he was and chose to turn a blind eye,” he said.

If the CIA had not forced Habre on the people, one can only wonder which leader would have ruled Chad.

 

source: Five painful instances the CIA deprived Africa of its promising leaders

via Five painful instances the CIA deprived Afrika of its promising leaders — Moorbey’z Blog

#UK: Huge pay rises for judges may stave off disaster, but where will the judges come from in 10 years time?

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Huge pay rises for judges may stave off disaster, but where will the judges come from in 10 years time? | BarristerBlogger | 12 Oct 2018

The Top Salaries Review Body has announced that judges should receive a stonking pay rise. High Court judges – who sit near the pinnacle of the profession – should get an extra 32%, which works out at about another £60,000 per year, while middle-ranking, Circuit judges, who sit in most Crown and County Courts should get a smaller but still very helpful 22%, taking their salaries to a basic £165,000.

Some years ago Barristerblogger decided that he had slogged around the criminal courts long enough. He had imbibed enough of the elixir of wisdom that comes from prosecuting burglars in Bournemouth, mitigating the transgressions of sex mini-beasts in Swindon, and eating army packed-lunches in military courts from Bulford to Bielefeld. More to the point, with no pension provision beyond a mis-sold critical illness policy that would, at best, pay for 2 weeks off work if I was diagnosed with terminal pancreatic cancer, the time had come to rise above the blood and dust of the arena, to don a purple robe and to accept elevation to the judicial bench.

There were, of course, one or two preliminary details to be sorted out. The first of these was to get in some practice as a Recorder, a junior judge who is temporarily vested with most of the powers of a Circuit Judge and most of the privileges too, apart from the right to wear purple in court or, of course, the salary or (at that time) the pension.

Until not that long ago judicial appointments were done rather differently from the way they are done today. Things called “soundings” were taken, old-school ties adjusted and subtle hints dropped by friendly judges that So-and-So was a good chap (or rarely a chapess) whose time had come; and he would be quietly “sounded out.” If he showed interest – “Haha! Me? A judge? I’m sure no-one would ever think of making me a judge” – a few discrete background checks would be made, which went something like this:

Know anything about Higgins?”

He’s very sound. Wasn’t in my house, but a bloody good scrum-half.”

What’s his practice like?”

Prosecutes a lot, safe pair of hands.”

Poofter?”

No, happily married.”

Drinker?”

No more than normal.”

Then, Hey Presto, Higgins became a recorder. From there, if the presiding judge liked him and he was clever, lucky or cunning enough not to be appealed too often, a permanent appointment might follow and with it the coveted purple dressing-gown and almost complete security of tenure until it was time to close the judicial notebook for the last time and gratefully accept the solid gold pension. There was a certain amount to be said for such a system if you possessed, or at least were entitled to wear, an old school tie – if you weren’t a poofter of course, or a woman – but it can’t be denied that it had its flaws.

The modern system is certainly fairer, and on the whole I think it has produced better judges, although that may simply be that as one gets older the “old darlings” (as Rumpole called them) cease to be terrifying and start to become at first contemporaries, and then, gradually, terrifyingly brilliant young upstarts.

It begins with a form, in which you are asked to explain in excruciating detail “why I would make a brilliant judge,” although not quite in those words. It is not enough to say, diffidently, “oh, I don’t know, I think I could make a fist of it, but I would say that wouldn’t I?” Instead you have to blow your own trumpet. And it’s not enough to just blow it loudly, you have to demonstrateexamples of how “decisive,” “independent,” “authoritative” and generally Solomonaic you are in your everyday life. To adopt the metaphor slightly, you have to praise yourself not just on the loud cymbals but also on the well-tuned cymbals.

This was not so easy, not least because I find it hard to make my mind up about anything and have never held any positions of authority at all, apart from captaining the chambers cricket team to a series of defeats so heavy that the once popular annual fixture eventually had to be cancelled. This was the first hint that the application process wasn’t going to be quite such a walk in the park. Days went by, then weeks while I racked my memory to think of a single example of where I had ever been more than averagely decisive – which obviously wouldn’t be good enough – and the more I tried to think of one, the less decisive I felt. All I could think of was that I was usually very quick to select items from the menu in restaurants, but that was hardly the sort of thing they were looking for.

You had to demonstrate “independence.” What did that mean? And then there was something about working in a team. Why would a judge work in a team? Surely, when you were on the bench your word was the law, never mind what any team thought. And how did you reconcile the two qualities anyway? The more you emphasised your independence the less you seemed like a team player, and vice versa.

Anyway, you get the idea. It’s painful and embarrassing and you don’t really want to put yourself through it unless you really, really want to be a judge.

The next stage was a written exam. You didn’t need to know any law as such: instead you are given an imaginary statute and rule book, and then asked to write judgments, under time pressure, on various imaginary scenarios, applying the imaginary law.

Somehow I bumbled my way through that and a week or two later the invitation arrived to go to a smart Westminster address for a day of role playing and interviewing.

The role playing involved a company of ham actors playing litigants, lawyers and witnesses, all of whom were doing their utmost to disrupt the quiet authority of the law that us judicial candidates were told to encapsulate. My court-room swiftly became an anarchic cockpit, as actors playing a diverse crowd of dissatisfied defendants, weeping complainants and incompetent lawyers shouted and swore at each other and at me, while a Lord Justice of Appeal looked on with thinly disguised contempt as I dismally failed to “show patience and courtesy” and even less to“assert authority when challenged.” After a few minutes my patience and courtesy had evaporated along with any vestigial authority, and all I could think of was to demand that the usher arrest the key troublemakers, which of course would have been neither correct nor even legal, but by then I was beyond caring. I was like a supply teacher being tortured by Year 9. Fortunately, the Lord Justice had seen enough and intervened to spare me further punishment. The interview that followed was another horror show, but we do not need to go there.

So you will understand, that although not cut out for judicial preferment, I have nothing but the greatest respect for those who are.

Unfortunately the very best ones are increasingly refusing to do the job for the pay on offer. In the most recent round of recruitment for High Court judges about one third of the positions was left unfilled, because the Judicial Appointments Commission could not find candidates of sufficiently high calibre. What’s more, many of the judges who were appointed wouldn’t have made the grade in previous years. The Commission grades appointable candidates as A (“outstanding”), B (“strong”) or C (“acceptable”), although I don’t think they are told which category they fall into (I can guess in my case). Until 2015 all new High Court Judges had been A class; since then some Bs have been appointed. Amongst the Circuit judges, the Commission says that it has already started appointing C grade candidates: 19 in 2016, rising to 43 out of 96 in the last round of recruitment. Moreover, many of the latest Circuit Judge appointments have been from District Judges who previously sat in the Magistrates Courts, which of course has itself weakened those courts. Before long some of us Ds (“poor”) and Es (“embarrassingly bad”) might have to be appointed, simply to keep the courts open at all, and while that may be good news for long-in-the-tooth supply-grade hacks who haven’t been able to afford to fund a pension, it’s not such good news for those who want to get justice in the courts.

Judges, or most of them anyway, deserve good pay for the extremely difficult work that they do. There is also, of course, a public interest in attracting the best talent with a high salary and other rewards, otherwise those able to earn good money as barristers and solicitors will simply not bother to apply.

So it is a terrible dilemma. There is no getting away from it: 32% (for the High Court Judges) or 22% (for the Circuit Judges) is a huge increase. Politically, it could not come at a more difficult time for the Government, just after Theresa May foolishly announced the “end of austerity” and just as Esther McVey admitted that some of the poorest people in the country are about to find their income reduced with the introduction of Universal Credit.

It will split the legal profession. Some will say – without even the merest whiff of self-interest, of course – that we need to pay top dollar to attract the best candidates. Other criminal barristers and solicitors, on the other hand, many of whom struggle to get by on £20,000 or £30,000 a year with huge debts to finance, will think that giving large pay increases to already comfortably-off judges is not the best use of scarce resources.

The criminal bar and the profession of criminal solicitor is, almost literally, dying on its feet. In the whole of mid-Wales there are, for example, (or were in 2017) just 11 criminal solicitors, most of whom were over 50, and over England and Wales as a whole the mean average age of duty solicitors is 47, and increasing every year, as their income continues to decline.

While judges ponder whether they will receive the full 32% increase, few criminal barristers, who have seen a 40% reduction in income from criminal legal aid in the last decade, are likely to be very sympathetic, even as the Government continues to squabble over exactly when a proposed increase of 1% (yes, 1%, not 11% or 21% or 31%) in their fees is to be implemented.

The criminal bar and the solicitors profession will probably not die altogether. Some barristers and solicitors will continue to work for pitifully low rates of pay. A few may be able to make a reasonable living living from privately paying clients. The independently wealthy will probably continue to represent criminal clients, because it can be a fascinating job. But do we really want to go back to the days when membership of the criminal bar, and the pool from which future criminal judges are recruited, is for practical purposes only open to the rich? And although I write about the criminal law because that is the area I understand best, barristers and solicitors acting for the poor in other areas of the law have seen their own, equally catastrophic, cuts in income.

Huge pay increases for judges may stave off disaster for a year or two, but they will do nothing to attract new talent into the law. Unless the government somehow finds the money to reverse the disastrous cuts in legal aid that the profession has endured over the last ten years, the result ten years from today will be a criminal judiciary full of independently wealthy, hideously over-paid, and over-promoted, Hooray Henries and Tim Nice But Dims. I’m not sure that overall that will be a good thing.

via Huge pay rises for judges may stave off disaster, but where will the judges come from in 10 years time? — BarristerBlogger

#Reminder: #28Pages Controversy over #SaudiArabia and #9/11 explained – Vox!

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28 pages: the controversy over Saudi Arabia and 9/11, explained

Did Saudi Arabia, an American ally but a country that supports extremists, have a hand in the attacks of September 11, 2001?

When Americans talk about this question, they will often mention a section of a still-secret 2002 congressional report, which has achieved such infamy that it is described only as “the 28 pages.”

Those pages are in the news again now, resurfacing long-unresolved debate in the US over Saudi Arabia and 9/11. Here is what we know about that document and about the question of Saudi involvement in 9/11.

Though subsequent US government investigations concluded there is no proof of official Saudi support for the attacks, American doubts persist, showing that this controversy is perhaps not exclusively about 9/11 but could also draw on deeper, unresolved American doubts about the US-Saudi alliance and about why we responded to the attacks as we did.

What are the 28 pages?

In 2002, shortly after a Joint Congressional Inquiry into the 9/11 attacks concluded its report, the Bush administration ordered that the inquiry permanently seal a 28-page section that investigated possible Saudi government links to the attack. It has remained sealed ever since.

Some members of Congress who have read the report, but are barred from revealing its contents, describe it as potentially damning. An unnamed member of Congress told the New Yorker, “The real question is whether it was sanctioned at the royal-family level or beneath that, and whether these leads were followed through.”

“The 28 pages primarily relate to who financed 9/11, and they point a very strong finger at Saudi Arabia as being the principal financier,” former Sen. Bob Graham, who is leading the charge to release the document, said in February.

Other officials, though, say the findings are speculative and inconclusive and have been rebuked by subsequent investigations. They warn that their release would spread unfounded conspiracy theories and cause unwarranted damage to the US-Saudi alliance, which has grown increasingly fragile in recent years.

The controversy over the 28 pages has resurfaced over and over in the years since, including, again, this week.

The families of 9/11 victims have expressed a desire to sue the Saudi government over the attacks, but such suits are typically barred by US law. Congress is now considering legislation that would allow their suit to go forward.

President Obama, traveling to Saudi Arabia this week, is expected to address concerns there that the document could be released. His administration is urging Congress to drop the bill, and Saudi officials have threatened, should the law pass, to sell off $750 billion in US-based assets.

What do we know about Saudi Arabia and 9/11?

Saudi Arabia has a long and tangled history with jihadist movements. In the 1980s, during the Soviet war in Afghanistan, the Saudi government (along with the US) aggressively funded Arab volunteers who fought against the Soviets.

The Saudis especially favored religious extremists, including a wealthy Saudi citizen named Osama bin Laden, who led a group of fanatical Arab fighters in Afghanistan that later became al-Qaeda.

By the 1990s, though, the Saudi government and bin Laden had become enemies. Their disagreements were many but culminated in the royal family inviting the United States to station troops in Saudi Arabia to defend against Saddam Hussein’s Iraq, which had invaded neighboring Kuwait.

But Saudi Arabia has long played a double game with extremists, including in the 1990s. It revoked bin Laden’s citizenship and deported him, but was one of only three countries to officially recognize the Taliban, an extremist group that had seized Afghanistan and officially sheltered bin Laden and al-Qaeda.

Saudi Arabia’s record of backing jihadists and of a shadowy, playing-both-sides strategy has raised understandable suspicions about the country’s possible links to 9/11 — enough that the US government has investigated this question at least twice since the Joint Congressional Inquiry.

Those reports, which have been made at least their final assessments public, found no evidence that the Saudi government supported the 9/11 attacks or attackers.

President George W. Bush meets with Saudi Ambassador to the US, Prince Bandar bin Sultan, in 2002 (Eric Drapper-White House/Getty)
President George W. Bush meets with Saudi Ambassador to the US Prince Bandar bin Sultan in 2002. (Eric Drapper-White House/Getty)

After the Joint Congressional Inquiry, the 9/11 Commission formed to independently investigate the attacks. Their investigators followed up the same details and questions on possible Saudi involvement, and even hired some of the same staffers who had worked on the Joint Congressional Inquiry. But the 9/11 Commission ultimately dismissed the earlier findings on Saudi Arabia as unsubstantiated.

“Saudi Arabia has long been considered the primary source of Al Qaeda funding, but we have found no evidence that the Saudi government as an institution or senior Saudi officials individually funded the organization,” the report concluded.

This past June, the CIA’s Office of the Inspector General finally released the findings of its own internal investigation, concluded in 2005, into intelligence failures leading up to the 9/11 attacks.

The final section of the report, titled “Issues related to Saudi Arabia,” addressed the question of possible Saudi involvement. That section is entirely redacted, save for three brief paragraphs, which say the investigation was inconclusive but found “no evidence that the Saudi government knowingly and willingly supported the al-Qaeda terrorists.”

These conclusions would seem to fit with what we know about the Saudi government.

For instance, while Saudi Arabia has a history of supporting jihadist movements, it uses them as military tools to achieve narrow political ends: fighting the Soviets in Afghanistan, fighting Bashar al-Assad in Syria.

Saudi leaders do not appear to support jihadists out of ideological fealty. Indeed, Saudi royals are notorious for spending much of their time living lavishly in the West. Jihadists will take Saudi money but often consider the royal family apostates and Western puppets — and will often attack the Saudi government itself.

Meanwhile, Saudi Arabia and the US have been close allies for decades, and for reasons beyond just oil. They shared enemies in the Soviet Union, Saddam’s Iraq, and revolutionary Iran. Saudi and US officials had spent two generations working closely together and often becoming personally friendly.

Looking at this history, it is difficult to imagine a reason the Saudi government would work clandestinely with its jihadist enemies to strike the US, its most important ally and benefactor.

But there is another theory, one hinted at in the 9/11 investigations, of a different kind of Saudi involvement: that of rogue Saudi officials acting against the wishes and interests of their government.

What is the rogue Saudi official theory?

Both the 9/11 Commission report and the CIA Inspector General report hint at — but do not fully substantiate — another possibility: Could rogue Saudi officials, acting without sanction from their government, have funneled state resources to aid the attackers?

The 9/11 Commission report states, “This conclusion does not exclude the likelihood that charities with significant Saudi government sponsorship diverted funds to al Qaeda.”

The CIA Inspector General report is more candid:

Individuals in both of the Near East Division (NE) and the Counterterrorist Center (CTC) [redacted] told the Team they had not seen any reliable reporting confirming Saudi Government involvement with and financial support for terrorism prior to 9/11, although a few also speculated that dissident sympathizers within the government may have aided al-Qa’ida. A January 1999 Directorate of Intelligence (DI)/Office of Transnational Issues Intelligence Report on Bin Ladin’s finances indicated that “limited” reporting suggested that “a few Saudi Government officials” may support Usama Bin Ladin (UBL) but added that the reporting was “too sparse to determine with any accuracy” such support.

It is worth reiterating that this theory has never been confirmed. But, as commonly told, it begins with Saddam Hussein’s 1990 invasion of Kuwait.

Saudi Arabia, fearing it could be next, invited the US military to station thousands of troops in the kingdom. The country’s powerful and ultraconservative clerical establishment was outraged, seeing this as a humiliation and a desecration of Muslim holy land, and openly hinted it might support a violent uprising.

The Saudi royal family responded as they had to other such crises: by co-opting and appeasing the clerical establishment. They shut down some nascent liberalizing reforms that had angered ultraconservative clerics, for example.

And they established a new government agency, the Ministry of Islamic Affairs, designed to appease Saudi ultraconservatives, some of whom were recruited to the agency itself and given wide latitude.

Islamic Affairs ostensibly supported Islamic charities as a humanitarian and soft-power mission. But, owing to the ideological leanings of the ministry’s officers, it also funded Islamist extremism and jihadism throughout the Muslim world.

The ministry, closely tied to the Saudi clerical establishment that has never really been under the government’s control, operated with an unusual degree of autonomy. The government tolerated this; better that ultraconservatives cause trouble abroad than at home.

Could some of the officials in that ministry, acting independently, have quietly deployed their resources in support of the 9/11 hijackers?

In recent years, a handful of inconclusive but highly disturbing details have come out that suggest possible links between the Ministry of Islamic Affairs and the hijackers.

For example, a Saudi living in the US who had ties to the Islamic Affairs Ministry, and who was salaried by a Saudi aviation company for whom he never actually did any work, facilitated and paid for an apartment for two of the 9/11 hijackers. His US-based contact in Islamic Affairs, Fahad al-Thumairy, was expelled from the US in 2002 over suspected ties to terrorists.

Such details, along with the Ministry of Islamic Affairs’ unusual autonomy and its links to an ultraconservative clerical establishment that could be at times more sympathetic to jihadists than to their own government, have long fed speculation that rogue officials in the ministry could have played a role.

Again, while this theory has never been confirmed, it is difficult to rule out completely, both because US investigators have raised it and because this theory would comport with what we know about the Saudi government and the Saudi clerical establishment.

If some version of this theory made it into the still-classified “28 pages,” then that could at least hypothetically explain the confusion over what the report does and does not show. It is easy to imagine, for example, that the report’s authors initially treated evidence for this theory as possibly implicating the Saudi government itself but, when those investigators looked at the same question in greater depth for the 9/11 Commission report, decided it did not.

That is speculation, but the point is that, now 15 years after 9/11, we have the distance to conclude that there is strong reason to doubt that the Saudi government would have supported the attacks, but at least moderate cause for wondering if rogue officials with Islamic Affairs might have been involved. In 2002, when the “28 pages” were written, we did not have that distance.

So why does this debate keep coming back, time and again? What is it about those 28 pages, and about questions of Saudi involvement, that seems to so nag at Americans?

Why do the 28 pages keep coming up?

The recurring debates over the 28 pages are a reminder of why so many Americans still wonder, nearly 15 years later, whether our closest Arab ally might have shared responsibility for the worst ever terror attack on US soil.

Because the document is still sealed and cannot be independently examined, but has been the subject of so much speculation, it has become something of a Rorschach test for how one considers the question of possible Saudi involvement in 9/11. And that question is often about more than just 9/11.

The 28 pages can be a way to debate the American alliance with Saudi Arabia itself. If the case against releasing the document is that it would harm US-Saudi ties, then your view naturally turns on whether you see that alliance as worth protecting. Demanding the release of the documents can be a way of expressing skepticism of the Saudis and of the US-Saudi alliance.

In some ways, then, this is as much a controversy over 9/11 as it is over longstanding, and recently growing, American discomfort with the Saudi alliance, which at times appears counter to both US values and interests.

Since the Arab Spring, that alliance has appeared increasingly strained, both because the two countries have developed conflicting goals for the region and because it is uncomfortable for the US to seek Mideast democracy while also supporting a theocratic absolute monarchy.

The monarchy, Americans have grown keenly aware, makes a practice of supporting jihadists, which naturally increases the threat to the United States. (The jihadists also threatened, and have attacked, Saudi Arabia itself.) When Americans hear denials that Saudi Arabia supported the particular jihadists who launched the 9/11 attacks, then, it conflicts with their understanding of reality and can feel untrue.

The controversy also thrives on unresolved emotions over the legacy of 9/11.

There remains, still years after the attacks, distrust of an official narrative that initially blamedSaddam Hussein; a sense that we went after the wrong enemy by invading Iraq; and skepticism about why the US still allies itself with a Saudi government known for promoting extremists.

These are difficult issues that the United States has never fully confronted, in part because it would require asking hard questions about the utility of an Iraq war for which thousands of Americans gave their lives.

While these issues do not necessarily suggest that Saudi Arabia had a hand in 9/11, it is easy to see how, to many Americans, that could end up feeling true. The 28 pages, regardless of what they actually show, are way of answering the unanswered questions and resolving the unresolved emotions that Americans have never quite collectively processed.

The existence of those secret 28 pages, and the Saudi and White House effort to keep them secret, seem to hint at confirmation of things many Americans suspect: that we attacked the wrong enemy after 9/11, that our Saudi allies are not allies at all, and that American policy toward the Middle East is disastrously shortsighted and self-defeating.

Asking about the 28 pages is a way of conveying these beliefs. Those things can indeed be true — and there is a case to be made that they are — without it being the case that Saudi Arabia somehow participated in the 9/11 terror attacks.

via 28 pages: the controversy over Saudi Arabia and 9/11, explained – Vox

Don’t Despair about the Supreme Court — The Most Revolutionary Act

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Originally posted on O Society: It would be naive to depend on the Supreme Court to defend the rights of poor people, women, people of color, dissenters of all kinds. ? by Howard Zinn Progressive October 21, 2005 John Roberts sailed through his confirmation hearings as the new Chief Justice of the Supreme Court, with enthusiastic Republican…

via Don’t Despair about the Supreme Court — The Most Revolutionary Act

#Xinjiang #Uighur #Kazakh #Islamophobia: #China Is Treating #Muslims Like Drug Addicts!

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China Is Treating Muslims Like Drug Addicts — Foreign Policy |  | 3 

 

Extralegal camps in Xinjiang are modeled on the country’s internment of drug users.

Drug offenders exercise at a detention center in Shenyang in China's northeastern Liaoning province on June 24.(China OUT/AFP/Getty Images)

Drug offenders exercise at a detention center in Shenyang in China’s northeastern Liaoning province on June 24.(China OUT/AFP/Getty Images) 
But rather than being jailed, they are held in drug detention centers (known in Chinese as “compulsory quarantine detoxification centers”). Under China’s 2008 anti-drug law, people caught using drugs can be held in these centers for up to two years. By 2016, approximately 357,000 people were detained in 700 centers, an increase of more than 100,000 since 2013. And despite their name, it is the Ministries of Justice and Public Security—not the health ministry—that run them.

Why the police provide “detoxification services” can be explained by looking at China’s now-abolished system of reeducation through labor. Created in the 1950s, these camps held those considered a threat to public order but who had not committed a criminal offense. Who constituted a threat changed with the times. During the Mao era, most were “rightists” or counterrevolutionaries; by the 1990s, they were petty thieves, sex workers, and users of drugs. Having not been found guilty of a criminal offense, detainees were denied trials or access to legal counsel. Yet unlike prisoners in ordinary jails, they could be indefinitely detained for years at a time.

Public criticism of reeducation through labor grew through the early 2000s, with legal experts arguing that it violated the constitutional provision against arbitrary deprivation of personal liberty. In some cases, people had been detained simply for criticizing local authorities. When the system was abolished in 2013, the Chinese government hailed the news as evidence of its commitment to the rule of law. Yet for those detained for drug use—who by 2013 were the majority of detainees—abolition changed little. It quickly mutated into a new system of drug detention where people continued to be held, often in repurposed labor reeducation buildings, for years without trial. This was widely covered in the Chinese press. To this day, Chinese TV journalists regularly interview detainees about life in the centers, with detainees expressing regret about their former drug use and pledging to reform themselves into upstanding citizens.

Such reports paint an optimistic picture of drug detention. But as the United States’ war on drugs shows, jailing people for possession does nothing to curb demand. Despite nearly three decades of prohibitionist policies, drug use in China continues to rise—from 1.3 million registered users of drugs in 2009 to 2.5 million in 2016—and the actual number may be many times higher.

Detention does little to treat addiction. According to official estimates, roughly 90 percent of detainees continue to use following their release.

Detention does little to treat addiction. According to official estimates, roughly 90 percent of detainees continue to use following their release.

Government surveillance continues long after release as well. For up to three years, former detainees are kept on government lists of “registered users” and subjected to scheduled and random drug urine tests. A positive test means another two-year stint in detention. And because registration is associated with the national ID card, a key part of everyday life in China, even the act of using an ID to book a hotel or purchase a train ticket online can trigger a visit from the police and another urine test.

Like drug detention centers, Xinjiang’s reeducation centers seem modeled on the reeducation through labor system. Detained Uighurs and Kazakhs have not committed criminal offenses; in many cases, they haven’t even committed administrative ones. Yet today, hundreds of thousands of people are being held without trial for anything from praying too often to having religiously themed text messages on their phones. As with their counterparts in China’s drug detention centers, moral and political rectification play key roles in the detainees’ lives. Detainees are expected to repent for their supposed extremism and work toward becoming good Chinese citizens. And like users of drugs, those released from the reeducation camps are reportedly required to meet regularly with local police.

Xinjiang’s Muslims are being defined by who they are, and users of drugs by what they do. But these differences should not obscure fundamental similarities. Rather than an aberration from the norm, Xinjiang’s reeducation camps are an extension of existing models long used within the administrative detention system. Citizens labeled as threats to the social order—whether drug users or Muslim minorities—can be detained for years. Because detainees are not charged with criminal offenses, the police can avoid overwhelming the judicial or prison systems with thousands of cases. Nor do changes need be made to China’s criminal law to justify their imprisonment. Administrative infractions can be used or created as needed to account for their arrest and detention.

I believe these centers also serve two fundamentally similar purposes: to demonstrate to target communities that they are under constant state surveillance and to signal to the wider society the government’s commitment to harshly deal with any group considered a threat. Can these camps compel Muslims detainees to permanently renounce their faith? Probably not. Will this be seen by the government as a failure? Again, I suspect not. Drug detention centers aim to permanently wean people off drugs, yet their inability to do so has not led to the abolition of this system. Getting Muslims to abandon their faith, or compelling people to abstain from drug use, may just be the maximal objectives of these centers. Surveillance and intimidation are probably the core aims.

 

There may also be more banal bureaucratic motivations at work. Facing layoffs in the wake of the abolition of reeducation through labor, police officers found new jobs at drug detention centers. Xinjiang’s reeducation camps may help justify larger budgets and increased hiring for the region’s security services. Arrest quotas may also fuel the growth of these centers. The rising number of people detained in drug detention centers is thanks in part to police officers filling arrest quotas or local governments showing their commitment to China’s “people’s war on drugs.” Reports suggest a similar system in use in Xinjiang, with local police arresting Muslims to meet government quotas and local officials building camps to show their dedication to the region’s wars on “separatism,” “extremism,” and “terrorism”.

Whatever motivation lies behind the creation of Xinjiang’s reeducation camps, the Chinese government seems confident that the average Chinese citizen will be indifferent to their existence. This confidence may be well founded. By the time reeducation through labor was abolished, public and expert opinion was overwhelmingly opposed to this system. Yet once it was transformed into drug detention, public concern disappeared. People could sympathize with citizen petitioners unfairly detained for protesting the abuses of local officials; they were less sympathetic to those detained for drug use, who were maligned as addicts at best, criminals at worst.

The Chinese government may be counting on a similar level of public indifference toward the fate of fellow citizens detained in Xinjiang, who are routinely characterized in state media as terrorists or religious extremists. How long this system of reeducation in Xinjiang will last and how large it will grow is unclear. The history of administrative detention in China does not inspire optimism, however. Even if these reeducation camps are abolished, China’s drug detention centers suggest that something just as bad may take their place.

via China Is Treating Muslims Like Drug Addicts — Foreign Policy

#UN’s highest court orders #US to lift certain #Iran #sanctions!

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THE HAGUE, Netherlands (AP) — The United Nations’ highest court on Wednesday ordered the United States to lift sanctions on Iran that affect imports of humanitarian goods and products and services linked to the safety of civil aviation.

The ruling by the International Court of Justice is legally binding, but it remains to be seen if the administration of President Donald Trump will comply.

Trump moved to restore tough U.S. sanctions in May after withdrawing from Tehran’s nuclear accord with world powers. Iran challenged the sanctions in a case filed in July at the International Court of Justice.

In a preliminary ruling, the court said that Washington must “remove, by means of its choosing, any impediments arising from” the re-imposition of sanctions to the export to Iran of medicine and medical devices, food and agricultural commodities and spare parts and equipment necessary to ensure the safety of civil aviation.While imposing the so-called “provisional measures,” the court’s president, Abdulqawi Ahmed Yusuf, stressed that the case will continue and the United States could still challenge the court’s jurisdiction.

Iran’s Foreign Minister Mohammad Javad Zarif praised the court ruling on Twitter, calling it “another failure for sanctions-addicted” U.S. and a “victory for rule of law.” He added that it is imperative for the international community “to collectively counter malign US unilateralism.”

Iranian state television trumpeted the court’s decision in a scrolling graphic at the bottom of TV screens: “The victory of Tehran over Washington by the Hague Court.”

U.S. diplomats in The Hague had no immediate reaction.

The U.S. is expected to challenge the court’s jurisdiction in a future hearing. No date has been set for further hearings in the case.

At hearings in August, Tehran sought the suspension of the sanctions while the case challenging their legality is being heard — a process that can take years. U.S. lawyers responded that the sanctions are a legal and justified national security measure that cannot be challenged by Tehran at the world court.

In its decision, the court said that the U.S. sanctions “have the potential to endanger civil aviation safety” in Iran and that sanctions limiting sales of goods required for humanitarian needs such as food, medicines and medical devices “may have a serious detrimental impact on the health and lives of individuals on the territory of Iran.”

The court said that the Trump administration must “ensure that licenses and necessary authorizations are granted” and payments not restricted if they are linked to the humanitarian and aviation goods.

The court also told both the United States and Iran to “refrain from any action which might aggravate or extend the dispute.”

U.S. lawyers had told the court that the administration would “use its best endeavors” to look at concerns about humanitarian and aviation related issues caused by the sanctions.

But in its written ruling the court said that the American assurances “are not adequate to address fully the humanitarian and safety concerns” raised by Iran.

Iran alleges that the sanctions breach a 1955 bilateral agreement known as the Treaty of Amity that regulates and promotes economic and consular ties between the two countries.

The treaty was signed when the U.S. and Iran were still allies following the 1953 revolution — fomented by Britain and the U.S. — that ultimately cemented the rule of Shah Mohammad Reza Pahlavi.

Diplomatic relations were severed following the 1979 Islamic Revolution in Iran and takeover of the U.S. Embassy and ensuing hostage crisis. However, the treaty remains in force.

Wednesday’s ruling could set up another clash between the Trump administration and a Hague-based court. Last month, Trump’s national security advisor, John Bolton, denounced the International Criminal Court — a separate and unrelated institution based just a few kilometers (miles) away from the International Court of Justice.

The ICC prosecutes people accused of war atrocities while the ICJ settles disputes between nations.

Bolton said last month that “for all intents and purposes, the ICC is already dead to us.”

___

Associated Press writer Amir Vahdat in Tehran, Iran, contributed.

via UN’s highest court orders US to lift certain Iran sanctions

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#ISLAMOPHOBIA #Orientalism, #Misinformation and #Islam

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ORIENTALISM, MISINFORMATION AND ISLAM |  |  | Abu Iman ‘Abd ar-Rahman Robert Squires

Any open-minded person embarking on a study of Islam, especially if using books written in European languages, should be aware of the seemingly inherent distortions that permeate almost all non-Muslim writings on Islam.  At least since the Middle Ages, Islam has been much maligned and severely misunderstood in the West. In the last years of the Twentieth Century, it does not seem that much has changed — even though most Muslims would agree that progress is being made.

QUESTIONABLE MOTIVES & GENERAL IGNORANCE

I feel that an elegant summary of the West’s ignorance of Islam and the motives of Orientalism are the following words by the Swiss journalist and author, Roger Du Pasquier:

“The West, whether Christian or dechristianised, has never really known Islam.  Ever since they watched it appear on the world stage, Christians never ceased to insult and slander it in order to find justification for waging war on it. It has been subjected to grotesque distortions the traces of which still endure in the European mind. Even today there are many Westerners for whom Islam can be reduced to three ideas: fanaticism, fatalism and polygamy. Of course, there does exist a more cultivated public whose ideas about Islam are less deformed; there are still precious few who know that the word islam signifies nothing other than ‘submission to God’.  One symptom of this ignorance is the fact that in the imagination of most Europeans, Allah refers to the divinity of the Muslims, not the God of the Christians and Jews; they are all surprised to hear, when one takes the trouble to explain things to them, that ‘Allah’ means ‘God’, and that even Arab Christians know him by no other name.

Islam has of course been the object of studies by Western orientalists who, over the last two centuries, have published an extensive learned literature on the subject. Nevertheless, however worthy their labours may have been, particularly in the historical and and philological fields, they have contributed little to a better understanding of the Muslim religion in the Christian or post-Christian milieu, simply because they have failed to arouse much interest outside their specialised academic circles. One is forced also to concede that Oriental studies in the West have not always been inspired by the purest spirit of scholarly impartiality, and it is hard to deny that some Islamicists and Arabists have worked with the clear intention of belittling Islam and its adherents. This tendency was particularly marked—for obvious reasons—in the heyday of the colonial empires, but it would be an exaggeration to claim that it has vanished without trace.

These are some of the reasons why Islam remains even today so misjudged by the West, where curiously enough, Asiatic faiths such as Buddhism and Hinduism have for more than a century generated far more visible sympathy and interest, even though Islam is so close to Judaism and Christianity, having flowed from the same Abrahamic source.  Despite this, however, for several years it has seemed that external conditions, particularly the growing importance of the Arab-Islamic countries in the world’s great political and economic affairs, have served to arouse a growing interest of Islam in the West, resulting—for some—in the discovery of new and hitherto unsuspected horizons.”   (From Unveiling Islam, by Roger Du Pasquier, pages 5-7)

The feeling that there is a general ignorance of Islam in the West is shared by Maurice Bucaille, a French doctor, who writes:

“When one mentions Islam to the materialist atheist, he smiles with a complacency that is only equal to his ignorance of the subject.  In common with the majority of Western intellectuals, of whatever religious persuasion, he has animpressive collection of false notions about Islam.  One must, on this point, allow him one or two excuses.  Firstly, apart from the newly-adopted attitudes prevailing among the highest Catholic authorities, Islam has always been subject in the West to a so-called ‘secular slander’.  Anyone in the West who has acquired a deep knowledge of Islam knows just to what extent its history, dogma and aims have been distorted. One must also take into account that fact that documents published in European languages on this subject (leaving aside highly specialised studies) do not make the work of a person willing to learn any easier.”  (From The Bible, the Qur’an and Science, by Maurice Bucaille, page 118)

ORIENTALISM:  A BROAD DEFINITION

The phenomenon which is generally known as Orientalism is but one aspect of Western misrepresentations of Islam.  Today, most Muslims in the West would probably agree that the largest volume of distorted information about Islam comes from the media, whether in newspapers, magazines or on television. In terms of the number of people who are reached by such information, the mass media certainly has more of a widespread impact on the West’s view of Islam than do the academic publications of “Orientalists”, “Arabists” or  “Islamicists”.  Speaking of labels, in recent years the academic field of what used to be called  “Orientalism”  has been renamed “Area Studies” or “Regional Studies”, in most colleges and universities in the West. These politically correct terms have taken the place of the word “Orientalism” in scholarly circles since the latter word is now tainted with a negative imperialist connotation, in a large measure due to the Orientalists themselves. However, even though the works of scholars who pursue these fields do not reach the public at large, they do often fall into the hands of students and those who are personally interested in learning more about Islam.  As such, any student of Islam — especially those in the West — need to be aware of the historical phenomenon of Orientalism, both as an academic pursuit and as a means of cultural exploitation. When used by Muslims, the word “Orientalist” generally refers to any Western scholar who studies Islam — regardless of his or her motives — and thus, inevitably, distorts it.  As we shall see, however, the phenomenon of Orientalism is much more than an academic pursuit.  Edward Said, a renowned Arab Christian scholar and author of several books exposing shortcomings of the Orientalist approach, defines “Orientalism”  as follows:

” … by Orientalism I mean several things, all of them, in my opinion, interdependent.  The most readily accepted designation of for Orientalism is an academic one, and indeed, and indeed the label still serves in a number of academic institutions. Anyone who teaches, writes about, or researches the Orient — and this applies whether the person is an anthropologist, sociologist, historian, or philogist — either in its specific or its general aspects, is an Orientalist, and what he or she does is Orientalism.” (From Orientalism, by Edward W. Said, page 2)

“To speak of Orientalism therefore is to speak mainly, although not exclusively, of a British and French cultural enterprise, a project whose dimensions take in such disparate realms as the imagination itself, the whole of India and the Levant, the Biblical texts and the Biblical lands, the spice trade, colonial armies and a long tradition of colonial administrators, a formidable scholarly corpus, innumerable Oriental “experts” and “hands”, an Oriental professorate, a complex array of “Oriental” ideas (Oriental despotism, Oriental splendor, cruelty, sensuality), many Eastern sects, philosophies, and wisdoms domesticated for local European use—the list can be extended more or less indefinitely.” (From Orientalism, by Edward W. Said, page 4)

As is the case with many things, being aware of the problem is half the battle. Once a sincere seeker of the Truth is aware of the long standing misunderstanding and hostility between Islam and the West — and learns not to trust everything which they see in print — authentic knowledge and information can be obtained much more quickly. Certainly, not all Western writings on Islam have the same degree of bias — they run the range from willful distortion to simple ignorance — and there are even a few that could be classified as sincere efforts by non-Muslims to portray Islam in a positive light. However, even most of these works are plagued by seemingly unintentional errors, however minor, due to the author’s lack of Islamic knowledge. In the spirit of fairness, it should be said that even some contemporary books on Islam by Muslim authors suffer from these same shortcomings, usually due to a lack of knowledge, heretical ideas and or depending on non-Muslim sources.

This having been said, it should come as no surprise that learning about Islam in the West — especially when relying on works in European languages — has never been an easy task.  Just a few decades ago, an English speaking person who was interested in Islam, and wishing to limit their reading to works by Muslim authors, might have been limited to reading a translation of the Qur’an, a few translated  hadeeth books and a few dozen pamphlet-sized essays. However, in the past several years the widespread availability of Islamic books — written by believing and committed Muslims — and the advent of the Internet have made obtaining authentic information on almost any aspect of Islam much easier. Today, hardly a week goes by that an English translation of a classical Islamic work is not announced. Keeping this in mind, I would encourage the reader to consult books written by Muslim authors when trying to learn about Islam.  There are a wide range of Islamic books distributors that can be contacted through the Internet.

IMPERIALISTIC AIMS & EAGER MISSIONARIES

Moving on to a more detailed look at the West’s distorted view of Islam in general and Orientalism in particular… Edward Said, the Arab Christian author of the monumental work Orientalism,  accurately referred to Orientalism a“cultural enterprise”.  This is certainly no distortion, since the academic study of the Oriental  East by the Occidental  West was often motivated — and often co-operated hand-in-hand — with the imperialistic aims of the European colonial powers.  Without a doubt, the foundations of Orientalism are in the maxim “Know thy enemy”.  When the “Christian Nations” of Europe began their long campaign to colonize and conquer the rest of the world for their own benefit, they brought their academic and missionary resources to bear in order to assist in the task.  Orientalists and missionaries — whose ranks often overlapped — were more often than not the servants of an imperialist government who was using their services as a way to subdue or weaken an enemy, however subtly:

“With regard to Islam and the Islamic territories, for example, Britain felt that it had legitimate interests, as a Christian power, to safeguard. A complex apparatus for tending these interests developed. Such early organizations as the Society for Promoting Christian Knowledge (1698) and the Society for the Propagation of the Gospel in Foreign Parts (1701) were succeeded and later abetted by the Baptist Missionary Society (1792), the Church Missionary Society (1799), the British and Foreign Bible Society (1804), the London Society for Promoting Christianity Among the Jews (1808).  These missions “openly” joined the expansion of Europe.”  (From Orientalism, by Edward W. Said, page 100)

Anyone who has studied the subject knows that Christian missionaries were willing participants in European imperialism, regardless of the pure motives or naïveté of some of the individual missionaries.  Actually, quite a few Orientalist scholars were Christian missionaries. One notable example is Sir William Muir, who was an active missionary and author of several books on Islam.  His books were very biased and narrow-minded studies, but they continue to be used as references for those wishing to attack Islam to this very day. That Christians were the source of some of the worst lies and distortions about Islam should come as no surprise, since Islam was its main “competitor” on the stage of World Religions. Far from honouring the commandment not to bear false witness against one’s neighbour, Christians distortions—and outright lies—about Islam were widespread, as the following shows:

“The history of Orientalism is hardly one of unbiased examination of the sources of Islam especially when under the influence of the bigotry of Christianity. From the fanatical distortions of John of Damascus to the apologetic of later writers against Islam that told their audiences that the Muslims worshipped three idols! Peter the Venerable (1084-1156) “translated” the Qur’an which was used throughout the Middle Ages and included nine additional chapters. Sale’s infamously distorted translation followed that trend, and his, along with the likes of Rodwell, Muir and a multitude of others attacked the character and personality of Muhammmed. Often they employed invented stories, or narration’s which the Muslims themselves considered fabricated or weak, or else they distorted the facts by claiming Muslims held a position which they did not, or using the habits practised out of ignorance among the Muslims as the accurate portrayal of Islam. As Norman Daniel tell us in his work Islam and the West: “The use of false evidence to attack Islam was all but universal . . . “ (p. 267).”  (From An Authoritative Exposition – Part 1)

This view is confirmed by the well known historian of the Middle East, Bernard Lewis, when he writes:

“Medieval Christendom did, however, study Islam, for the double purpose of protecting Christians from Muslim blandishments and converting Muslims to Christianity, and Christian scholars, most of them priests or monks, created a body of literature concerning the faith, its Prophet, and his book, polemic in purpose and often scurrilous in tone, designed to protect and discourage rather than to inform”..”  (From Islam and the West, by Bernard Lewis, pages 85-86)

There is a great deal of proof that one could use to demonstrate that when it came to attacking Islam, even the Roman Catholic Church would readily embrace almost any untruth. Here’s an example:

“At a certain period in history, hostility to Islam, in whatever shape or form, even coming from declared enemies of the church, was received with the most heartfelt approbation by high dignitaries of the Catholic Church. Thus Pope Benedict XIV, who is reputed to have been the greatest Pontiff of the Eighteenth century, unhesitatingly sent his blessing to Voltaire.  This was in thanks for the dedication to him of the tragedy Mohammed or Fanaticism (Mahomet ou le Fanatisme) 1741, a coarse satire that any clever scribbler of bad faith could have written on any subject. In spite of a bad start, the play gained sufficient prestige to be included in the repertoire of the Comédie-Française.”  (From  The Bible, the Qur’am and Science, by Maurice Bucaille, page 118)

WIDESPREAD LIES & POPULAR CULTURE

The dedicated enemy of the church, referred to above, was the French philosopher Voltaire. Also, the above passage introduces a point that one should be well aware of: the distortions and lies about Islam throughout the ages in Europe were not been limited to a small number of scholars and clergy. On the contrary, they were part of popular culture at the time:

“The European imagination was nourished extensively from this repertoire [of Oriental images]:  between the Middle Ages and the eighteenth century such major authors as Ariosto, Milton, Marlowe, Tasso, Shakespeare, Cervantes, and the authors of the Chanson de Roland and the Poema del Cid drew on the Orient’s riches for their productions, in ways that sharpened that outlines of imagery, ideas, and figures populating it. In addition, a great deal of what was considered learned Orientalist scholarship in Europe pressed ideological myths into service, even as knowledge seemed genuinely to be advancing.” (From Orientalism, by Edward Said, page 63)

“The invariable tendency to neglect what the Qur’an meant, or what Muslims thought it meant, or what Muslims thought or did in any given circumstances, necessarily implies that Qur’anic and other Islamic doctrine was presented in a form that would convince Christians; and more and more extravagant forms would stand a chance of acceptance as the distance of the writers and public from the Islamic border increased. It was with very great reluctance that what Muslims said Muslims believed was accepted as what they did believe. There was a Christian picture in which the details (even under the pressure of facts) were abandoned as little as possible, and in which the general outline was never abandoned. There were shades of difference, but only with a common framework. All the corrections that were made in the interests of an increasing accuracy were only a defence of what had newly realised to be vulnerable, a shoring up of a weakened structure. Christian opinion was an erection which could not be demolished, even to be rebuilt.” (From Islam and the Wesr: The Making of an Image, by Norman Daniel, page 259-260)

Edward Said, in his classic work Orientalism, referring to the above passage by Norman Daniel, says:

“This rigorous Christian picture of Islam was intensified in innumerable ways, including — during the Middle Ages and early Renaissance — a large variety of poetry, learned controversy, and popular superstition. By this time the Near Orient had been all but incorporated in the common world-picture of Latin Christianity — as in the Chanson de Roland  the worship of Saracens is portrayed as embracing Mahomet and Apollo. By the middle of the fifteenth century, as R. W. Southern has brilliantly shown, it became apparent to serious European thinkers “that something would have to be done about Islam,” which had turned the situation around somewhat by itself arriving militarily in Eastern Europe.”  (From Orientalism, by Edward W. Said, page 61)

“Most conspicuous to us is the inability of any of these systems of thought [European Christian] to provide a fully satisfying explanation of the phenomenon they had set out to explain [Islam] — still less to influence the course of practical events in a decisive way. At a practical level, events never turned out either so well or so ill as the most intelligent observers predicted:  and it is perhaps worth noticing that they never turned out better than when the best judges confidently expected a happy ending.  Was there any progress [in Christian knowledge of Islam]? I must express my conviction that there was. Even if the solutions of the problem remained obstinately hidden from sight, the statement of the problem became more complex, more rational, and more related to experience.”  (From Western Views of Islam in the Middle Ages, by R. W. Southern, pages 91-92)

Regardless of the flawed, biased — and even devious — approach of many Orientalists, they too can have their moments of candour, as Roger Du Pasquier points out:

“In general one must unhappily concur with an Orientalist like Montgomery Watt when he writes that ‘of all the great men of the world, no-one has had as many detractors as Muhammad.’  Having engaged in a lengthy study of the life and work of the Prophet, the British Arabist add that ‘it is hard to understand why this has been the case’, finding the only plausible explanation in the fact that for centuries Christianity treated Islam as its worst enemy. And although Europeans today look at Islam and its founder in a somewhat more objective light, ‘many ancient  prejudices still remain.’”  (From Unveiling Islam, by Roger Du Pasquier, page 47 – quoting from W. M. Watt’s Muhammad at Medina, Oxford University Press)

SOUND ADVICE & CONCLUDING REMARKS

In conclusion, I would like to turn to a description of Orientalism by an American convert to Islam.  What he has this to say about the objectives and methods of Orientalism, especially how it is flawed from an Islamic perspective, is quite enlightening. While summarizing his views on a book by an Orientalist author, he writes:

“…(t)he book accurately reports the names and dates of the events it discusses, though its explanations of Muslim figures, their motives, and their place within the Islamic world are observed through the looking glass of unbelief (kufr), giving a reverse-image of many of the realities it reflects, and perhaps calling for a word here on the literature that has been termed Orientalism, or in the contemporary idiom, “area studies“. It is a viewpoint requiring that scholarly description of something like “African Islam” be first an foremost objective. The premises of this objectivity conform closely, upon reflection, to the lived and felt experience of a post-religious, Western intellectual tradition in understanding religion; namely, that comparing human cultural systems and societies in their historical succession and multiplicity leads the open-minded observer to moral relativism, since no moral value can be discovered which on its own merits is transculturally valid.  Here, human civilizations, with their cultural forms, religions, hopes, aims, beliefs, prophets, sacred scriptures, and deities, are essentially plants that grow out of the earth, springing from their various seeds and soils, thriving for a time, and then withering away.  The scholar’s concern is only to record these elements and propose a plausible relation between them.

Such a point of departure, if de rigueur  for serious academic work… is of course non-Islamic and anti-Islamic. As a fundamental incomprehension of Islam, it naturally distorts what it seeks to explain, yet with an observable disparity in the degree of distortion in any given description that seems to correspond roughly to how close the object of explanation is to the core of Islam.  In dealing with central issues like Allah, the Prophet (Allah bless him and give him peace), the Koran, or hadith, it is at its worst; while the further it proceeds to the periphery, such as historical details of trade concessions, treaties names of rulers, weights of coins, etc., the less distorted it becomes.  In either case, it is plainly superior for Muslims to rely on fellow Muslims when Islamic sources are available on a subject … if only to avoid the subtle and not-so-subtle distortions of non-Islamic works about Islam. One cannot help but feel that nothing bad would happen to us if we were to abandon the trend of many contemporary Muslim writers of faithfully annotating our works with quotes from the founding fathers of Orientalism, if only because to sleep with the dogs is generally to rise with the fleas.” (From The Reliance of the Traveller, Edited and Translated by Nuh Ha Mim Keller, page 1042)

As anyone who has studied Orientalism knows, both their methodology and their intentions were less than ideal. The following remarks serve as a pointed synopsis of the approach of Western Orientalist scholars to the Qur’an in particular and Islam in general:

“The Orientalist enterprise of Qur’anic studies, whatever its other merits and services, was a project born of spite, bred in frustration and nourished by vengeance: the spite of the powerful for the powerless, the frustration of the “rational” towards the “superstitious” and the vengeance of the “orthodox” against the “non-conformist.” At the greatest hour of his worldly-triumph, the Western man, coordinating the powers of the State, Church and Academia, launched his most determined assault on the citadel of Muslim faith. All the aberrant streaks of his arrogant personality — its reckless rationalism, its world-domineering phantasy and its sectarian fanaticism — joined in an unholy conspiracy to dislodge the Muslim Scripture from its firmly entrenched position as the epitome of historic authenticity and moral unassailability. The ultimate trophy that the Western man sought by his dare-devil venture was the Muslim mind itself. In order to rid the West forever of the “problem” of Islam, he reasoned, Muslim consciousness must be made to despair of the cognitive certainty of the Divine message revealed to the Prophet. Only a Muslim confounded of the historical authenticity or doctrinal autonomy of the Qur’anic revelation would abdicate his universal mission and hence pose no challenge to the global domination of the West. Such, at least, seems to have been the tacit, if not the explicit, rationale of the Orientalist assault on the Qur’an.” (From: “Method Against Truth: Orientalism and Qur’anic Studies”, by S. Parvez Manzoor, Muslim World Book Review, Vol. 7, No. 4, Summer 1987, pp. 33-49.)

Need we say more?

 

via Orientalism, Misinformation and Islam

#Corporatocracy #CommodifyingTheVulnerable: #RightfulLives: #UK court judgments upholding #HumanRights of #Autistic &/or #LearningDisabled people

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#RightfulLives – all the court judgments upholding the human rights of autistic and / or learning disabled people | Steve BroachRIGHTSINREALITY | 24 September 2018

The #RightfulLives online exhibition launched today (24 September 2018). It is an incredible collection of the voices and views of autistic and / or learning disabled people and their families, grouped under the key Articles from the European Convention on Human Rights (ECHR) (.pdf). The ECHR is of course incorporated (given force in domestic law) by the Human Rights Act 1998. The courts are also increasingly interpreting the EHCR rights by reference to the other key international conventions, including here the UN Convention on the Rights of Persons with Disabilities (CRPD).

I was struck by the following section of the intro to #RightfulLives – ‘The idea for the exhibition came about through a conversation about how the legal framework of the Human Rights Act seems to barely touch the lives of people with learning disabilities. Since then we have only been able to find three published successful court judgements where the HRA has been apply to learning disabled people’.

My immediate thought was – ‘that can’t be right’ – and it’s not, but it’s also not out by much. Below is the (very short) list of court judgments I have been able to locate (thanks Twitter law geek buddies) which meet the following criteria:

  1. The case involves at least one autistic and / or learning disabled claimant. This means I had to leave out Bernard v Enfield, the only case where the domestic courts have found a breach of the positive obligation to provide welfare support under Article 8 ECHR, because Mrs B was a physically disabled person.
  2. The claim was brought under at least one of the ECHR Articles. This significantly reduces the list, because very often the court is considering the rights of autistic and / or learning disabled people through the lens of other legislation, most notably the Mental Capacity Act 2005.
  3. The claim was brought in the domestic courts since the HRA came into force (the year 2000). This rules out earlier claims such as the landmark ‘Bournewood’ case (HL v UK) which gave rise to the Deprivation of Liberty Safeguards (DoLS).
  4. The claim didn’t settle. Very many claims made in relation to breaches of human rights will be settled by the public body prior to any hearing, perhaps with an apology and / or a payment of compensation. One example of such a claim which sticks in my mind was a case I was instructed on for a young person who had been separated from her family against her will, where a significant payment was made by the public body in settlement. Of course the consequence of this is that usually no-one else knows what went wrong…
  5. The claim succeeded. This ruled out at least one notable case, being A v Essex, the Supreme Court decision on a claim under the right to education (Article 2 of the First Protocol to the ECHR) for an autistic child which failed on its facts, although left open the possibility of future claims where children are denied access to education which is available under the domestic system.

So this is the list of all the cases, to the best of my knowledge, which meet the above criteria – in date order. If I’ve missed any, and I hope I have, please let me know in the comments below – and please make sure you visit and promote the #RightfulLives exhibition to help make the human rights of autistic and / or learning disabled people a reality.

  1. R (A, B, X and Y) v East Sussex CC (No 2) [2003] EWHC 167 (Admin) – this was a very early HRA case where Mr Justice Munby (before his elevation to the Court of Appeal) considered the legality of a local authority’s policy in relation to manual handling of two sisters, who were young women with profound physical and learning disabilities. Munby J memorably held (in the context of Article 8 ECHR) that:

    ‘The recognition and protection of human dignity is one of the core values — in truth the core value — of our society and, indeed, of all the societies which are part of the European family of nations and which have embraced the principles of the Convention.’ The Judge referred further to ‘the enhanced degree of protection which may be called for when the human dignity at stake is that of someone who is, as A and B are in the present case, so disabled as to be critically dependent on the help of others for even the simplest and most basic tasks of day to day living.’

    He further stated that ‘The other important concept embraced in the “physical and psychological integrity” protected by article 8 is the right of the disabled to participate in the life of the community and to have what has been described….as “access to essential economic and social activities and to an appropriate range of recreational and cultural activities”. This is matched by the positive obligation of the State to take appropriate measures designed to ensure to the greatest extent feasible that a disabled person is not “so circumscribed and so isolated as to be deprived of the possibility of developing his personality”.’ As such the Judge held that ‘A and B’s rights to participate in the life of the community and to have access to an appropriate range of recreational and cultural activities are so important that a significant amount of manual handling may be required. ‘ It is striking that so few later cases have developed the important concepts and obligations identified in A, B, X and Y.

  2. Hillingdon LBC v Neary [2011] EWHC 1377 (COP)  – the term ‘landmark case’ is horribly over-used, but Steven Neary’s case undoubtedly justifies it. As well as a wholesale failure to comply with the MCA in depriving Steven of his liberty, the Judge also found a number of breaches of Article 5 EHCR (right to liberty) and Article 8 ECHR (right to respect of family and private life). See para 32 of the full judgment, set out here, for the Court’s conclusions on the human rights issues:(1) By keeping Steven Neary away from his home between 5 January 2010 and 23 December 2010, Hillingdon unlawfully breached his right to respect for his family life, contrary to Article 8 ECHR.
    (2) By keeping Steven Neary at the support unit between 5 January 2010 and 14 April 2010, Hillingdon unlawfully deprived him of his liberty, contrary to Article 5(1) ECHR.(3) By keeping Steven Neary at the support unit between 15 April 2010 and 23 December 2010, and notwithstanding the urgent DOL authorisation granted by Hillingdon as managing authority and the three standard DOL authorisations granted by Hillingdon as supervisory body, Hillingdon unlawfully deprived him of his liberty, contrary to Article 5 (1) ECHR.
    (4) By failing to
    (i) refer the matter to the Court of Protection sooner than 28 October 2010, and/or
    (ii) appoint an Independent Mental Capacity Advocate for Steven sooner than 29 October 2010, and/or
    (iii) conduct an effective review of the DOL best interests assessments under Part 8 of Schedule A1 of the Mental Capacity Act 2005,
    Hillingdon deprived Steven Neary of his entitlement to take proceedings for a speedy decision by a court on the lawfulness of his detention, contrary to Article 5 (4) ECHR
  3. R (C) v A Local Authority and others [2011] EWHC 1539 (Admin) – the ‘Blue Room’ case, see also the full judgment. C was an 18 year old boy who was regularly secluded in a padded blue room at his school. The local authority denied any breach of C’s Article 3 (freedom from torture and inhuman or degrading treatment) and/or Article 8 ECHR rights, but conceded that ‘when he is secluded and restrained in the blue room …that amounts to a deprivation of his liberty and in so far as that is not authorised by the court, such a deprivation is unlawful and in breach of his article 5 ECHR rights.’ The Judge held that ‘Neither the local authority nor the organisation operating the school had any power to deprive C of his liberty.’ The Judge adjourned the Article 3 and 8 Article issues for further hearing alongside the claim for damages. I cannot find any published judgment on these issues, so it is likely that these aspects of the claim settled.
  4. Commissioner of Police for the Metropolis v ZH[2013] EWCA Civ 69 – the only case where the Court of Appeal has considered the ECHR rights of an autistic or learning disabled person. The Court of Appeal upheld the decision of the trial judge that the Met Police had breached the Article 3, Article 5 and Article 8 rights of a 19 year old young man who had been detained and placed in the cage of a police van after becoming distressed at a swimming pool. In particular the trial judge was not wrong to find that the treatment meted out to ZH reached the minimum level of severity required to find a breach of Article 3, in terms of inhuman and degrading treatment. Lord Dyson MR found that ‘Although the police officers were acting in what they thought to be the best interests of ZH, on the judge’s findings they made serious errors which led them to treat this vulnerable young man in a way which caused him great distress and anguish…nothing could justify the manner in which they restrained ZH.’
  5. Somerset v MK [2014] EWCOP B25 – Somerset clearly hadn’t paid attention to the guidance from Peter Jackson J in Steven Neary’s case, which HHJ Marston held ‘has many depressing similarities to this one’. The Judge held that his findings ‘illustrate a blatant disregard of the process of the MCA and a failure to respect the rights of both P and her family under the ECHR. In fact it seems to me that it is worse than that, because here the workers on the ground did not just disregard the process of the MCA they did not know what the process was and no one higher up the structure seems to have advised them correctly about it.’Somerset conceded that MK had been subjected to an unlawful deprivation of liberty and that there had been an unlawful interference with the family’s Article 8 rights.
  6. C and C v Governing Body of a School [2018] UKUT 269 (AAC) – the most recent case was a challenge to the application of the ‘tendency to physical abuse’ exclusion from the protection of the Equality Act 2010 to autistic children in school. The Upper Tribunal held that the relevant regulation resulted in unlawful discrimination contrary to Article 14 ECHR and so had to be disapplied for this group of children. The decision (which has not been appealed) means that head teachers will have to justify decisions to exclude children with autism, ADHD etc in order to avoid unlawful disability discrimination, even where these children have behaved violently or aggressively.

via #RightfulLives – all the court judgments upholding the human rights of autistic and / or learning disabled people

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