THE LINE BETWEEN THE THE POLITICAL AND THE CRIMINAL CAN BE A BLURRED ONE

Some felt the '75 Spaghetti House siege just gave black politics a bad name. But as with the recent riots, it's a complex picture

'In two crucial aspects things are the same now for young people on deprived estates as
they were in 1975: the visceral hatred of the police and the sense of having nothing
to look forward to and nothing to lose.' Photograph: Nikolas Giakoumidis/AP

The question of whether the recent riots represent political protest or simple criminal behaviour is not new. Thirty-six years ago, on the evening of 28 September 1975, the same debate arose over what became known as the Spaghetti House siege.

Three armed young black men held up the Knightsbridge branch of the Spaghetti House restaurant chain in London. Within minutes police were on the scene and the young men, unable to escape, bundled staff into a storeroom. The "gunmen" claimed to represent the Black Liberation Army. For five days the police negotiated with them to release the hostages unharmed, which they ultimately did.

The incident – more Oakland, California, than South Kensington – took the UK by surprise; the police, aided by the media, were quick to label it a robbery gone wrong. Hard man Sir Robert Mark, then Met chief, said there was "no racial or political connotation" in the crime as 400 officers were deployed, Knightsbridge was closed to all traffic and false information was broadcast to confuse those glued to a radio in the storeroom.

Dangerous robbers or political activists? "The line between politics and crime", wrote Ambalavaner Sivanandan, "is a thin one in a structurally racist society". For many young black people at that time on the margins of education, work and family life, everything was about hustling. Hustling was making money wherever you could. Whether that money went to fund you personally or to fund "the movement" was a close call. The young people in the ranks of the black political groups lived their politics; it was what they read, what they wore, the demos they went on at weekends, the community schemes they contributed to, the confrontations at night. And there was also a strong school of thought that so much had been stolen from black people through slavery, that it was now their right to claim some back.

Of the three in the siege, Franklin Davies had already served a sentence for armed robbery, but had also tried to enlist in the armed struggle against colonialism in southern Africa. Anthony (Bonsu) Munroe, a would-be medical student, ran a supplementary school for black children (then being relegated to schools for the "educationally subnormal"). Wesley Dick had been in Ashford remand centre and had a series of petty convictions such as stealing a book from Foyles and kicking a can in the street. But he had also attended the Sixth Pan-African Congress in Tanzania in 1974 and worked as a volunteer at the Institute of Race Relations. The latter two had variously been members, or attended meetings, of the London-based Black Panther movement, Fasimbas, the Black Liberation Front and the Black Unity and Freedom party.

Key radical groups within the black community, conscious of the "thin line" hurriedly met to decide how to forestall a potential police shootout. Some felt that the three had just wanted easy money and supporting them would give black politics a bad name. But far more realised that it was not the time to forsake them. They issued a statement that attempted to give background and explain the actions of "the brothers".

The three used their trial as a form of protest. They turned their backs on the judge, held up a poster and were sent down to the cells for the duration of the trial. They came back for verdict and sentence, when they tried to read a statement to the court and gathered press. And they got political sentences – of 17, 18 and 21 years – just as the recent rioters have received political sentences.

Today the circumstances are different. The sustaining culture of Black Power is long gone, the idea of reparations belongs to academia rather than the street. The welfare state has given way to the market state, and communities, as the riots showed, are now much more multicultural. But in two crucial aspects things are the same for young people on deprived estates: the visceral hatred of the police and the sense of having nothing to look forward to and nothing to lose. It is unexplained deaths at the hands of the police, such as those of Smiley Culture and Mark Duggan, that act as a catalyst for action.

Among the rioters there were certainly opportunists and looters. But there was, equally, a section of young people who, in interview after interview, expressed a political rage – about the way cuts affected communities, about having no route to social or economic mobility, about the way City fat cats had created a crisis for which the poor had to pay. Theirs was the violence of the violated.

• Jenny Bourne has written a fuller account, "Spaghetti House siege: making the rhetoric real" in Race & Class, October 2011

By: Jenny Bourne

Jenny Bourne is editor of the journal Race & Class

“WHO WE GONNA RUN TO?”

Last week the grape vine and the “blogs” were focused on a written statement purportedly delivered by Governor Harrison to Executive Council. Given the fact that Executive Council (EXCO) discussions are to be kept confidential, I was extremely hesitant to cross that sacred “Maginot line” which protects our democracy by ensuring that our decision makers have a place where matters of national importance can be dealt with in an environment, which encourages openness and objectivity. Unfortunately, that confidentiality appears to have been breached not only on this occasion but on many others as well by Ministers of the AUM Government. For example, I have heard the Hon. Evan Gumbs declare openly in the House of Assembly that he did not vote for/support a particular matter in EXCO and on a recent Talk Show both he and the Hon. Walcott Richardson declared that they did not support aspects of the Education Bill in Executive Council. In fact their leader the Chief Minister who continues to lead by bad example, often reports publicly on confidential matters from Executive Council.

For clarification it is not my intention “to make two wrongs a right”. It remains a breach of the “oath of confidentiality” applicable to all members of EXCO to take classified information out of the Chambers. But the issues contained in the statement being widely circulated are issues, which I have reported on and questioned as recently as September 2, 2011 in my article: “Woosh!” So my faithful readers would have heard me raise these issues ad nauseam. I do not know whether the Anguillian Newspaper will carry the statement since it is not an official release from the Governor, therefore I have no choice but to quote it in its entirety for ease of reference and to highlight the unimpeachable truths it contains. The statement reads as follows:

His Execellency, William Alistair Harrison,
Governor of Anguilla.

"We have just agreed to authorize the Chief Minister to sign a supplementary MoU with Starwood Capital. I have no problem with the substance of the decision --- indeed EXCO had little alternative but to take it. But there are some troubling issues of governance lying behind it on which I should like to make a statement.

Last summer the Chief Minister and the Parliamentary Secretary announced to the press that they had concluded an MoU with Starwood in respect of the latters purchase of the debt secured on the Viceroy resort. In fact this “MoU” had been concluded without authorization from EXCO, without the benefit of the advice of the Tourism Investment Committee (TIC) and without having been seen or negotiated by the Attorney General’s (AG’s) chambers. Only one senior public officer was consulted, who failed to inform her colleagues until after the event.

The Chief Minister would have been well aware, from his previous term as Chief Minister, of the correct procedures to follow; and he should have ensured that the Parliamentary Secretary was also aware of them. No MoU should have been signed until it had been seen and negotiated by the TIC with the participation of the AG’s chambers. And EXCO should have taken the final decision.

Given that the Chief Minister was aware of the correct procedures to follow, it seems unlikely that this incident was part of a wider pattern of his attempting to bypass the correct procedures of Government --- as in the case of the near disaster of the Social Security loan, and an attempt to dismiss the Board of ANGLEC. In this case, the consequences of the Chief Minister’s and Parliamentary Secretary’s conduct were serious. The TIC eventually negotiated a valid MoU with Starwood, and it was duly signed. But the negotiating dynamic was made exceptionally difficult by the concessions the Chief Minister and the Parliamentary Secretary had already made. These concessions limited the amount that Starwood were to pay the Treasury whatever the actual price of the debt note. Whilst it is impossible to be certain how the negotiations would have otherwise turned out, it is clear that the ill-considered conduct of the Chief Minister and the Parliamentary Secretary have cost the people of Anguilla up to EC$18 million, a loss we can ill afford.

I trust the Chief Minister will follow the correct procedures in future and ensure that his Minister and other advisers do likewise."

Diehard AUM supporters have derived a false sense of comfort by saying that this document is a contrivance of the “meddling opposition”. My response is: “Does that mean that the comments made are not factual?” All such doubters need to do is simply look up the Government Media Report of July 30th, 2010. It is in the Anguillian! The other point these diehards have raised is that the Governor is trying to embarrass the Chief Minister. My response is: “Does this mean that the Chief Minister is above the law and the need to practice good governance?” First of all the Governor did not make the statement publicly and secondly he had sound grounds to admonish the Chief Minister and his colleagues to abide by the laws, rules and procedures that have been established to guarantee good governance for the people they have been elected to serve.

"Well... not personally"

I have said in my column and on various media that anything that I say about the political situation in Anguilla I publish under my own name. I do not and will not use the cowardly route of anonymous “blog entries” and other social media where very often, as obtained in the last election campaign, the intent is to mislead and distort the truth. I have been commenting in my column on these issues for more than a year. In this context, I could go back as recent as a few weeks to show the consistency of my views of the Government’s behaviour and the damage it is causing. However, I will go back even further to my article of a year ago (almost to the day), when I commented on and predicted the likely outcome of the manner in which the Chief Minister and his colleagues were conducting the affairs of state. My article appeared in the Anguillian of September 24, 2010 and was entitled: “So Shall It Be In The End”. Here are some excerpts from that article:-

The Scenario

“On Friday July 30th, 2010 the Anguillian carried an article based on a press conference held by the Chief Minister, Hon. Hubert B. Hughes and his son the Parliamentary Secretary, Haydn Hughes. The actual press conference was actually held on Tuesday July 28th and as a consequence the news had already been circulated on the various broadcast media that Viceroy Resort was sold to an investment group, Starwood Capital Group (SCG); an MOU was signed; the new buyer would be paying US$ 40 million in taxes, and; the Government would be receiving 9% Alien Land Holding Licence fees on every villa sold.

Understanding the long process of negotiations associated with such deals many persons were stunned by this announcement. And especially so when the Parliamentary Secretary, Haydn Hughes stated: “Last week the property was up for sale this week it has been sold.” The Chief Minister further stated that the Parliamentary Secretary was given the task to redeem some of the taxes lost under the previous MOA. We have more or less quashed the MOA and have formulated an MOU.”

What was most ironic about this press statement is that whereas the AUM politicos in the recent election campaign had been accusing the former Government of conducting their negotiations in secret here are they now presenting an MOU negotiated by HAYDN alone! In fact after this press statement a number of Ministers of the Government denied having any knowledge of the transaction and in particular the MOU. Transparency Indeed!”

AUF Good Governance Practices

“The past AUF Government had a very organized system for dealing with the negotiation of Memorandum of Agreements. A first draft would be produced by senior technical officials on a committee called the Tourism Investment Committee (TIC); followed by a presentation by that committee to Ministers of Government; then the preparation of a negotiating stance to be agreed in Executive Council. Once the first negotiating stance has been agreed more discussions with the investor takes place and that process is repeated several times until a final document is ready to be presented to Executive Council for final approval before signature.

This process could take considerable time if there are significant points of difference between the Government and the Developer. And very often the Government would hire consultants from the United States or elsewhere to provide advice in cases where there are legal and commercial issues/practices not familiar to our jurisdiction. In fact the methodology for negotiating with foreign investors during the past AUF Administration was considered to be a best practice in the OECS region.”

AUM Mockery of Good Governance

“I said in my column last week that the Chief Minister and his colleagues strongly believed that the rules are for everyone but them. It is the kind of behaviour strongly associated with persons who have sociopathic tendencies. And I say this in the context of the arrogance of the Chief Minister after so strongly accusing the past Government of closed negotiations to be boasting in his press conference that he had appointed his son to “redeem some of the taxes lost under the previous MOA.” He did not appoint the trained economist, Deputy Chief Minister, Hon. Edison Baird nor a committee of Senior Technical Officials seized of the intellectual memory to deal with the Viceroy MOA; --- he appointed his son!”

My Predictions & Comments 

"... secrets and higher beings are not formulae
and you appear terribly unwise to suggest so.
Having said this, it makes me happy
to see you so confident and comfortable in your Not-Knowing."

“Many of us believed that MOU that they purported to have signed was an innocuous document. However, we later discovered that the MOU was actually signed on July 27, 2010 on Starwood Capital letterhead by the Chief Minister and witnessed by a Senior Government Official. That is, the same MOU in which the Chief Minister instructed the Parliamentary Secretary to redeem supposedly “lost taxes” and giveaways by the past government. HAYDN actually did quite the opposite as follows:

• He fixed the value of the real estate for the purposes of calculation of the various stamp duty and alien land holding license fees as not to exceed US$105 million. My comment: Revenue will be lost if the value exceeds US$105. Even if that were considered to be unlikely, given the circumstances of the sale it would have been a better deal to set a minimum rather than a maximum.

• He increased the number of exemptions for refurbishment to six times in twenty years rather than four times as in the original MOA. My comment: Is this how we redeem lost revenue from taxes?

• He removed the payment of the Resort Resident Asset Levy in most cases. This is an ongoing stream of revenue established in the original MOA for the life of the project that in time would exceed all up front payments. My Comment: He has sacrificed revenue for future generations for upfront windfalls. Obviously, simply to make the Government look good in the short term.

• He removed the section dealing with increases every five years of the annual levies payable by condominium owners and fixed the rate at no more than US$ 6.50. My comment: Again! Is this how we redeem lost revenue from taxes?”

My Conclusion

“What the Parliamentary Secretary did by having the Chief Minister sign this seriously flawed MOU had to impact the efforts of the TIC in eventually negotiating the MOU now being proposed to be presented to the House in a few days. The fact is that even though the document did not go to EXCO or the House it could have been argued to be legally binding given the fact that it contained the Chief Minister’s signature witnessed by a senior civil servant. This reality may have taken away a considerable amount of the TIC’s leverage in negotiating a more favourable agreement. While I am confident that what they have worked on will be a considerable improvement on the travesty that the Parl. Sec. negotiated --- they will not be fully satisfied with the outcome.”

"... Lawd... survival is all in your hands! Help!"

It is quite possible that many persons read my articles with some “sceptism”, given the fact that I am the Leader of the AUF --- so I feel vindicated by “the purported statement” of the Governor, which has captured the essence of many of the issues I have been raising. Hopefully, once the integrity of the statement has been established people will look more critically at our leadership. In fact it is a fair question to ask whether this is the kind of leadership we want when we become an independent nation. And an even more troubling question in the face of such a reality: “Who we gonna run to?”


By: Victor F. Banks
Victor Banks is a former Finance, Economics, Commerce and Tourism Minister on Anguilla. He is presently the leader of the Oposition Anguilla United Front Party, writer and author of a weekly political article for the Anguillian News Paper, lyricist, and a self-employed entrepreneur.

... THE RESULTS OF GOD NOT LIKING UGLY ON ANGUILLA

"... It wasn't me!"

The answers to our problems don't lie beyond our reach - they exist in the obviation of the Anguilla Utter Mess (AUM) from the realms of power on Anguilla. What is required now is for Anguillians to pull together, confront boldly these real incompetencies we face, and take responsibility for our future once more... by any means necessary.

For too long, as a people, we have failed to meet these responsibilities under the covering of Democracy. It is only by understanding how we arrived at this utter mess that we'll be able to lift ourselves out of this predicament.

Though we have known for decades that our survival depends on finding ways to keep this visionless utter mess out of government, only God knows what happened on Feb 15, 2010. The results are that we are living through an era where there is neither short-term gains nor predictable long-term prosperity; where the next payment is borrowed; and where there is no opportunity to invest in our future... the results of God not liking ugly.

By: RUSTY ©
RUSTY © is a contributor for the axareality forum on Anguilla

Is the UK’s ‘opt-out’ from the EU Charter of Fundamental Rights worth the paper it is written on? Part 2.

The EU currently has 27 member countries,
which have transferred some of their sovereignty
 – or lawmaking authority – to the EU.

The UK Government has long sought to play down the significance of the EU Charter of Fundamental Rights. In its negotiations around, and public presentation of, the substance of the Charter (as originally solemnly proclaimed in 2000) the position of the UK Government was that the Charter simply consolidated existing EU fundamental rights jurisprudence, contained no new rights and did not allow the courts any new powers. And when it was proposed that the Charter be incorporated into TEU by Treaty amendment, the UK sought an “opt-out” from certain of the Charter provisions, which is now contained in Protocol 30 to the Lisbon Treaty. In this series of posts EUtopia law considers the effectiveness of this self-proclaimed opt-out. Part 1 looked at the wording of Protocol 30 and suggested that it would have little limiting effect on the interpretation and application of the Charter’s provisions. Part 2 explores this further.

 

Certainly the House of Commons Scrutiny Committee thought that Protocol 30 would have little effect. In its follow up report to the 2007 European Union inter-governmental conference, it concluded that Protocol No 30 TEU did not provide any guarantee that the Charter should have no effect on UK law. The Committee noted that nothing in Protocol No 30 TEU will excuse the United Kingdom authorities (including the courts) from the obligation to comply with interpretations handed down by the CJEU, even where these rulings are based on the terms of the Charter.

It may be noted, in this regard, that the last preamble to Protocol No 30 TEU states that “this Protocol is without prejudice to other obligations devolving upon Poland and the United Kingdom under the Treaty on European Union, the Treaty on the Functioning of the European Union, and Union law generally”. This may be contrasted with the terms of Protocol No 32 TEU on the acquisition of property in Denmark, which states:

“Notwithstanding the provisions of the Treaties, Denmark may maintain the existing legislation on the acquisition of second homes.”

Contrast may also be drawn with the terms of Protocol No 35 TEU on Art 40.3.3 of the Constitution of Ireland, which states that

“Nothing in the Treaties, or in the Treaty establishing the European Atomic Energy Community, or in the Treaties or Acts modifying or supplementing those Treaties, shall affect the application in Ireland of Article 40.3.3 of the Constitution of Ireland [“the right to life of the unborn”].”

The question of the precise effect (and effectiveness) of Protocol 30 may be settled by the forthcoming decision of the CJEU in NS v Secretary of State for the Home Department C-411/10. This concerns the scope of the Member State’s obligations to use Art 3(2) of the Dublin (EC) Regulation 343/2003 – which sets out criteria for determining which Member State is the responsible State for the purposes of the examination and determination of an asylum claim made within the territory of the EU, which is not necessarily the State in which the asylum claim was lodged – to process an individual’s asylum claim in circumstances where there is a real risk of breaches of fundamental rights protected by the CFR. The CJEU was asked by the Court of Appeal of England and Wales to rule on whether the duties of the UK under and in terms of this EU Regulation were qualified in any respect so as to take account of the Protocol 30, always assuming that any decision under the Council Regulation fell within the scope of EU law for the purposes of Art 6 TEU and/or Art 51 CFR. In making this Article 267 TFEU preliminary reference Lord Neuberger, MR noted (in NS v Secretary of State for the Home Department [2010] EWCA Civ 990 at paras 6-7:

“6. There is one specific matter which we should mention in relation to one of the conclusions reached by Cranston J, from whom this appeal arises. In the course of his very clear and careful judgment he concluded, in paragraph 155, that the Secretary of State (the respondent) was not bound to act in accordance with the EU fundamental rights protected from the Charter when acting within the scope of the EU law. I refer to what he said in paragraph 155:

“155. Recital 15 of the Dublin Regulation records that it respects the fundamental rights and principles recognised in particular by the Charter of Fundamental Rights. Given the Polish and United Kingdom Protocol, the Charter cannot be directly relied on as against the United Kingdom although it is an indirect influence as an aid to interpretation. It will be recalled that Article 1 of the Charter makes human dignity inviolable. Article 18 provides that the right to asylum shall be guaranteed, and Article 19(2) provides that “no one may be removed to a State where there is a serious risk that he or she would be subjected to inhuman or degrading treatment”. None of these rights are directly enforceable against the Secretary of State. A transfer under the Dublin Regulation cannot be challenged on the basis that it is not compatible with the right to human dignity or the right to asylum, or will be in breach of Article 19(2).”

7. The reason we mention this point is that the Secretary of State no longer seeks to support that finding, as is clear from paragraph 8 of the respondent’s notice, which states:

“8. Contrary to the Judge’s holding, the Secretary of State accepts, in principle, that fundamental rights set out in the Charter can be relied on as against the United Kingdom, and submits that the Judge erred in holding otherwise (judgment, paragraphs 155 and 157, first sentence). The purpose of the Charter Protocol is not to prevent the Charter from applying to the United Kingdom, but to explain its effect.”’

In sum, it seems clear that Protocol 30 will have little or no effect on the question as to how the EU Charter will be interpreted and applied by the CJEU, or by national courts (in the UK or Poland) following and applying CJEU jurisprudence.

As is not uncommon in matters of the EU, yet again a line in the sand has apparently been drawn by the United Kingdom, only for that line to be quickly washed away in the always “incoming tide” (see Bulmer v Bollinger [1974] Ch 401 (CA) per Lord Denning at 418) that is EU law as it inevitably further diminishes the already much-attenuated sovereignty of the Member States. As Koen Lenaerts, a CJEU judge has written, (in ‘Constitutionalism and the many faces of federalism‘ [1990] 38 American Journal of Comparative Law 205 at 220): “[T]here is simply no nucleus of sovereignty that Member States can invoke, as such, against the Community ….”

By: Aidan O’Neill QC.

Aidan O'Neill is a barrister at Matrix Chambers and co-founder of the EUtopialaw blog. In addition to law degrees from Edinburgh and Sydney universities, Aidan holds a degree in European and International and Comparative law from the European University Institute, Florence. He has written three legal text books, including EU Law for UK Lawyers and Decisions of the European Court of Justice and their constitutional implications.

Is the UK’s ‘opt-out’ from the EU Charter of Fundamental Rights worth the paper it is written on? Part 1.

The EU currently has 27 member countries,
which have transferred some of their sovereignty
– or lawmaking authority – to the EU.
 

The UK Government has long sought to play down the significance of the EU Charter of Fundamental Rights. In its negotiations around, and public presentation of, the substance of the Charter (as originally solemnly proclaimed in 2000) the position of the UK Government was that the Charter simply consolidated existing EU fundamental rights jurisprudence, contained no new rights and did not allow the courts any new powers. And when it was proposed that the Charter be incorporated into TEU by Treaty amendment, the UK sought an “opt-out” from certain of the Charter provisions, which is now contained in Protocol 30 to the Lisbon Treaty. In this series of posts EUtopia law considers the effectiveness of this self-proclaimed opt-out.

 

UK Governments over the past 20 years, of whatever political hue, have consistently shared a post-Thatcherite hostility to the idea of courts telling them what to do. Particular suspicion has focused, in this regard, on grand proclamations of fundamental rights contained in a variety of international instruments. In the past, our politicians were happy to sign up to these if they remained statements of eschatological hope only. More recent experience has been, however, that (national and international) courts have tended to get their hands on these documents and, taking international law seriously, transformed them into catalogues of justiciable individual rights. This transformation of aspiration into obligation is seen, from the political perspective, as a zero sum game: the increase in the jurisdiction of the courts to consider and adjudicate on these instruments has been experienced as a reduction in power for the politicians, giving them less room to manoeuvre. It is against this background that one can begin to understand the intent and purpose behind the proclaimed UK (subsequently joined by Poland) “opt-out” from provisions of the EU Charter of Fundamental Rights set out in Protocol No 30 TEU.

Even before it became legally binding, provisions of the EU Charter of Fundamental Rights were being referred to and relied upon in the domestic courts of the UK: see, R (Yogathas) v HS [2003] 1 AC 920 per Lord Hope at 935, para 36; Bellinger v Bellinger [2003] 2 AC 467 per Lord Hope at 486, para 69; Sepet & Anr v SSHD [2003] 1 WLR 856 (HL) per Lord Bingham at 867–68, para 15 and Lord Hoffman at 879, para 51; R (Robertson) v Wakefield Metropolitan District Council & Anr [2002] QB 1052 per Maurice Kay J at para [38]. In R (Howard League for Penal Reform) v SSHD [2003] 1 FLR 484, Munby J noted (at 495, para 51) that:

“The European Convention is, of course, now part of our domestic law by reason of the Human Rights Act 1998. Neither the UN Convention nor the European Charter [of Fundamental Rights] is at present legally binding in our domestic law and they are therefore not sources of law in the strict sense. But both can, in my judgment, properly be consulted insofar as they proclaim, re-affirm or elucidate the content of those human rights that are generally recognised throughout the European family of nations, in particular the nature and scope of those fundamental rights that are guaranteed by the European Convention.”

The second and sixth preambles of Protocol 30 that state, respectively, that “the Charter is to be applied in strict accordance with the provisions of the aforementioned Article 6 TEU and Title VII of the Charter itself” and that “the Charter reaffirms the rights, freedoms and principles recognised in the Union and makes those rights more visible, but does not create new rights or principles” seek to explain the effect of the Charter. The first substantive provision is Article 1(1), which is in the following terms:

“The Charter does not extend the ability of the Court of Justice, or any court or tribunal of Poland or of the United Kingdom to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.”

But as a derogation from the general principles of EU law this provision has to be read strictly and narrowly accordingly to its precise terms. According to Honyvem Informazioni Commerciali Srl v Mariella De Zotti (C-465/04) at para 24:

“[A]ccording to settled case-law, the terms used to establish exceptions to a general principle laid down by EU law … are to be interpreted strictly (Case C-150/99 Stockholm Lindöpark [2001] ECR I-493, paragraph 25). Applying this canon of construction Article 1(1) of Protocol No 30 TEU says only that the Charter cannot extend the ability of a court judicially to review national laws. But this power in the CJEU (and conferred on national courts in so far as acting within the field of EU law) is not conferred or extended by the Charter – it exists by virtue of the Court’s established jurisprudence noted above, and is already part of the acquis communautaire. If the Member States are operating in the field of EU law then they are subject to EU law review. This is not a matter of territorial or geographic jurisdiction, but one of the respective competence of the Member States and the Union institutions.”

Article 1(2) of Protocol No 30 TEU says this:

“(2) In particular, and for the avoidance of doubt, nothing in Title IV ‘Solidarity’ of the Charter creates justiciable rights applicable in Poland or in the United Kingdom except insofar as Poland or the United Kingdom has provided for such rights in its national law.”

Title IV of the EU Charter on ‘Solidarity’ comprises: Art 27 CFR workers’ right to information and consultation within the undertaking employing them; Art 28 CFR right to collective bargaining and industrial action; Art 29 CFR right of access to placement services; Art 30 CFR protection in the event of unjustified dismissal; Art 31 CFR right to fair and just working conditions; Art 32 CFR prohibition of child labour and protection of young people at work; Art 33 CFR protection of family life and its reconciliation with professional life; Art 34 CFR entitlement to social security and social assistance; Art 35 CFR right of access to preventive health care; Art 36 CFR right of access to services of general economic interest; Art 37 CFR claim to environmental protection and sustainable development; Art 38 CFR expectation of consumer protection. And again, on a strict analysis the claim in Article 1(2) of Protocol No 30 TEU that the Charter does not create “justiciable rights” applicable in Poland or in the United Kingdom wholly misses the point. The Charter does not create rights within individual State territories, and the CJEU in enforcing the provisions of the Charter as against Union institutions – and, where appropriate, also against individual Member State authorities – is not creating or enforcing those rights within national territories. It is, instead, enforcing these within the supra-national realm of EU law.

Lastly, Article 2 of Protocol No 30 TEU provides that:

“To the extent that a provision of the Charter refers to national laws and practices, it shall only apply to Poland or the United Kingdom to the extent that the rights or principles that it contains are recognised in the law or practices of Poland or of the United Kingdom.”

This is, however, arguably stating no more than the obvious, and should have no limiting effect on the interpretation and application of the Charter’s provisions.

In the second part of this series of posts EUtopia law will examine the potential impact of the upcoming decision in NS v Secretary of State for the Home Department C-411/10 on the effect of Protocol 30. Stay tuned!

By: Aidan O’Neill QC.

Aidan O'Neill is a barrister at Matrix Chambers and co-founder of the EUtopialaw blog. In addition to law degrees from Edinburgh and Sydney universities, Aidan holds a degree in European and International and Comparative law from the European University Institute, Florence. He has written three legal text books, including EU Law for UK Lawyers and Decisions of the European Court of Justice and their constitutional implications.

PRISONER VOTES AND THE DEMOCRATIC DEFICIT

I posted recently on the ongoing saga surrounding the UK’s implementation of the Hirst No. 2 case, in which the European Court of Human Rights found that the UK’s blanket ban on prisoners voting was a breach of the European Convention on Human Rights. The correspondence between the court and the UK Government is now available and I have reproduced it below.

In short, the UK previously had until 11 October 2011 to “introduce legislative proposals” to end the ban. But it has now been given a reprieve as a result of seeking to intervene in another case, Scoppola v Italy (No. 3) (available in French, English press release here), which is going to the court’s Grand Chamber This is another prisoner voting case.

The Foreign and Commonwealth Office (FCO) wrote to the Strasbourg court on 26 July 2011 asking for permission to intervene in Scoppola, which is another prisoner voting case. Although the FCO accepts that legislation challenged the Italian case is “more onerous” than in the UK (some prisoners in Italy are disenfranchised for life),

"On any view, it is likely that the judgment of the Grand Chamber in Scoppola will have a direct impact on the question of which legislative proposals should be brought forward in order to comply with the judgment in Greens and MT."

The FCO also referred to another prisoner voting case, Frodl v Austria (see my post), which “in the Government’s view, is inconsistent with Hirst”. In that case the court went further than simply saying a blanket ban was incompatible with the EHCR, stating:

"There should be a direct link between the facts on which a conviction is based and the sanction of disenfranchisement; and such a measure should preferably be imposed not by operation of a law but by the decision of a judge following judicial proceedings."

The Government would not be alone in worrying about Frodl; legal blogger Carl Gardner has argued that in that case

"the ECtHR went rogue, stepping beyond its proper role, ignoring a key principle of restraint and even distorting the meaning of its own earlier judgment in order to justify going much further. Frodl really is a stinker of a judgment."

The Court responded to the FCO on 30 August 2011:

"Having regard to the lapse of almost six years since the ruling of the Grand Chamber in Hirst… to the fact that a general election took place in May 2010 and that no measures had been put in place… and to the further lapse of time which would occur pending the delivery of the Grand Chamber judgment in Scoppola (no. 3), the Chamber cannot contemplate any further unnecessary delay."

So the Chamber cannot contemplate “any further unnecessary delay”. Except…

"The Chamber would therefore regard as reasonable an extension of six months after the date of the Grand Chamber judgment in Scoppola (no. 3) for the introduction of a Bill to Parliament."

The UK therefore has until six months after the Scoppola judgment, which could be a year away, to introduce a bill to Parliament. My view is that it is very unlikely that the Grand Chamber will reverse its own ruling in Hirst No. 2, and the UK will still therefore be obliged to let some prisoners vote.

But the Government may be right that Frodl took things too far. Taken to its logical conclusion, the effect of Frodl would be to give practically all prisoners the vote, which does raise questions of whether the court is providing any wriggle room (the “margin of appreciation”) to states at all. Although the court is in many senses a federal court of Europe and sometimes must lead from the front on issues – such as blanket disenfranchisement of prisoners – there does seem to be a legitimate debate between states as to what categories of prisoners should remain restricted from voting.

It is important to remember that our Parliament has signed up to “abide by the final judgment” (ECHR Article 46) of the court. This usually works fine, and given a little cajoling the UK government does eventually implement decisions against it, which amounted to a grand total of 17 in 2010. But the prisoner voting issue has stretched the government’s relationship with the court and no resolution is in sight.

The Government argues that the will of the people is against prisoners voting and that Parliament has also expressed its strong view, albeit in a non-binding vote. This raises wider issues; as the Justice Secretary Ken Clarke said recently in his evidence to the European Scrutiny Committee:

"the big issue is subsidiarity. It is accepted on all sides that the main duty of complying with the European Convention on Human Rights lies on the Governments of the member states. … very broadly, we have to decide to what extent the court in Strasbourg takes into account the judgments of national courts, the judgments of national Parliaments, when they have acted in accordance with what they believe to be their obligations under the Court of Human Rights."

“Subsidiarity” is a trendy way of talking about the margin of appreciation (see this article), but in Ken Clarke’s view it is also a code word for the perceived “democratic deficit” in the operation of the court and, as Joshua Rozenberg has written, a spur for the ongoing movement to reform it.

Things should not be taken too far. Just because the UK disagrees with a judgment does not mean there is a “democratic deficit” in the structure of the court. It is the court’s role, to an extent, to protect unpopular sections of society. But it must also try to ensure that it does not undermine its own authority by imposing too much, too fast.

I suspect that the Grand Chamber has accepted the referral request in Scoppola in order to clarify the apparent conflict between Hirst No. 2 and Frodl, and probably to reduce the effect of Frodl and give states a wider range of choice. Otherwise it risks falling out with the UK and Italy who may simply refuse to implement the rulings. Successive UK governments should probably have done more to implement the ruling but, given the issues raised by Frodl, this problem is also to an extent of the court’s own making.

By: Adam Wagner

Adam Wagner is a founding editor of the UK Human Rights Blog. He is a barrister specialising in public law, human rights and medical law, and was longlisted for the 2011 Orwell Prize for blogging. He can be found on Twitter as @AdamWagner1

CUTTING THROUGH THE CHASE!!! "The Game of Politics continues " ……...........

His Execellency, William Alistair Harrison, Governor,
and the Hon. Hubert Benjamin Hughes, Chief Minister of Anguilla.

The argument tabled for some time now has without doubt exacted itself to today’s current situation on the island. Now it is clear that the extreme and radical posture of the government or principal leadership elements, have not done the governing process well up to now! Thus far the country is no better off today than that day February 16, 2010. The Governor has now decided to declare his position on a critical turning point issue in the affairs of the island, which may bring some degree of clarity to the tension between the two aspects of the governing mechanism of the island and the actual relationship between the Governor’s cabinet and the elected government of the people.

This story actually exemplifies how the game of politics is played by real power players. It is now over one year and the neglect to address this matter, which did cause uproar by the government; the Governor knew that was red meat, and refused to pitch it to angry people who felt that he had trampled on the right of their selection for government. The Governor held the high ground and allowed the government to develop a trend of conscious or unconscious errors to the extent that they would defame, and cause consequential damage to themselves. Being conscious of public descent he felt comfortable at this point to reveal the actual report, red meat or not, at this time the government has cooked themselves and so is the red meat, “now well cooked.”

Stories like these must be reported from a prospective of critical analysis because the people must have all the facts, even from various sources and the people must judge for themselves. Our weekly column offers the opportunity for friends to give their point of view without sensor and objectively offer suggestions and or unsolicited advice, of which we may never know if taken, but it is our duty to make a contribution as we see it.

Last week’s column generated quite some reaction and a very intelligent debate on the prospects of adequate and new political leadership for the island on another facet of the phenomenal social network. The country has probably drifted from reality and has entered into a zone of difficulty, now becoming untenable. This matter concerns everyone and the subject matter highlights the fact that a new vision for the country must be tabled with critical criterion, a plan that must include the elements of a progressive society which should be exposed for public consumption, not in an election season but right now, so the people can judge without the pressure of political choice.

By: Elliot J. Harrigan

THE CHEROKEE NATION MUST BE FREE TO EXPEL BLACK FREEMEN

The Cherokee ruling excluding descendants of black slaves is a tragedy, but federal intervention will only cause more problems.

In 2007 the Cherokee passed an amendment to its constitution requiring
members to have Cherokee blood. Photograph: Brendan Smialowski/AFP/Getty Images

The idea that a 21st-century sovereign nation would expel a racial minority that had been part of it for a century and a half seems outrageous. Yet this is precisely what has happened in the last month in the Cherokee nation, the second largest American Indian tribe. The US government's condemnatory response, however, may cause more problems than it solves.

The Cherokee freedmen are the descendants of African American slaves owned by wealthy Cherokee tribal members. When principal chief Stand Watie became the last confederate general to surrender in the American civil war, a treaty emancipated these slaves and gave them equal rights. The Cherokee nation went further than this in 1866, amending their constitution as follows:

"All native-born Cherokees, all Indians and whites legally members of the nation by adoption and all freedmen who have been liberated by voluntary act of their former owners or by law […] shall be taken and deemed to be citizens of the Cherokee nation."

But more than a century later, chiefs Ross Swimmer and Wilma Mankiller created a new requirement that all Cherokee should hold a certificate of degree of Indian blood. This stripped the freedmen of citizenship. It was declared unconstitutional in a 2006 decision by the Cherokee supreme court. Chief Chad Smith, an uncompromising opponent of freedmen citizenship, arranged a referendum which, in 2007, amended the constitution of the Cherokee nation to once again require "Indian blood". Last August, this referendum was upheld by the Cherokee supreme court. Two thousand eight hundred freedmen lost their status as citizens, including their right to food aid and medical services. This occurred against the backdrop of a knife-edge election for principal chief, in which freedmen votes would have the potential to change the result.

Some freedmen activists blame the nation's stance on a combination of factors, including racism and an unwillingness to share federal funding or profits accruing from recognised tribal status. However, there is another set of factors that make this a much more nuanced issue. Larry Echo Hawk, assistant secretary for Indian affairs in the US department of the interior, wrote in a widely circulated letter to the acting principal chief Joe Crittenden:

"The department's position is, and has been, that the 1866 treaty between the US and the Cherokee nation vested Cherokee freedmen with rights of citizenship in the nation, including the right of suffrage."

Echo Hawk's threat is that the US federal government will not recognise the outcome of the upcoming election, potentially leading to another constitutional crisis for the Cherokee nation (the last, in 1997, saw a near-coup followed by armed federal intervention). At the same time, the US department of housing and urban development froze $33m (£20.9m) of funds due to the tribe's refusal to reinstate its African American members.

There is a long history of US government attempts to deny the Cherokee's right to self-determination. The most infamous instance is the 1838 ethnic cleansing known as the Trail of Tears, a forced march that killed a quarter of the tribe and an unknown number of their slaves who marched with them. At the turn of the century, the Cherokee constitution was dissolved. This continued as the federal government chose men to act as "chiefs for a day" in order to sign treaties, but otherwise kept the Cherokee nation dormant, and then dragged them through the 1950s federal "termination" policy. The US government interventions were accompanied by boarding schools that forbade the speaking of the Cherokee language, and are part of much wider efforts to kill off Native American cultures. The fear of acculturation is very real, especially given American conservative attacks that modern-day Indians are somehow inauthentic and hence no longer "deserve" treaty rights. Small wonder, then, that the Cherokee should wish to retain the right to determine the criteria for citizenship in their own nation.

It's nevertheless worth noting that the Cherokee are less purist in their approach to race and citizenship than the many tribes that require one-quarter Indian blood for membership. Their use of "linear descent" means there are citizens whose ancestry is only 1/2048 Cherokee. There are many Cherokee citizens with African or Asian ancestry whose citizenship is not being challenged.

If the constitutional amendment is seen to be overturned due to federal bullying – the freedmen have requested the withdrawal of funds that currently pay for food distribution to more than 35,000 households – the idea of self-determination will have taken a heavy blow. More, the hypocrisy of the federal government continuing to support the racial logic of "blood quantum" in other tribes while condemning it here is not lost on anyone. Surely such an outside action will perpetuate, not heal, racial divides within the nation. Self-determination surely means the right to make bad decisions as well as good.

However, none of this excuses the Cherokee nation for its collective decision to exclude the descendants of slaves. Natural justice demands that the citizenship first granted in the 19th century should be upheld without question. Cherokees should celebrate their sovereignty precisely by acknowledging their debt to those whose forced labour helped build Cherokee independence.

The tragedy of the Cherokee supreme court's decision, as Steve Russell argues in a excoriating editorial, is that it achieves what federal government has always wanted. It makes the Cherokee an ethnic special interest group, no longer deserving of the title of "nation".

By: James Mackay

James Mackay is a lecturer in comparative literatures at the European University Cyprus, specialising in Native American and First Nations literatures. He was the lead author of the most recent ENAR Shadow Report into Racism in Cyprus (pdf) and is the editor of the Salt Companion to Diane Glancy.

WHY THE POPE MUST FACE JUSTICE AT THE HAGUE

We survivors of clergy sex abuse have brought our evidence to the ICC so that the Vatican might finally account for its cover-up. 

Members of Survivors Network of those Abused by Priests (Snap), including Barbara Blaine (third from right), at the International Criminal Court (ICC) in The Hague, 13 September 2011. Photograph: Rob Keeris/AP

When it comes to holding the Catholic Church accountable for sexual abuse of children by members of the clergy, all roads lead to Rome. That is what my organisation, Survivors Network of those Abused by Priests (Snap), concluded after years of seeking justice in other venues and being turned away.

On 13 September, we travelled to the Hague to file an 84-page complaint and over 20,000 pages of supporting materials with the International Criminal Court, documenting our charge that the Pope and Vatican officials have tolerated and enabled the systematic and widespread concealing of rape and child sex crimes throughout the world.

Holding childhood photographs that tell a wrenching story of innocence and faith betrayed, and joined by our attorneys from the New York-based Center for Constitutional Rights, we stood up and demanded the justice that has so long been denied. The New York Times called the filing "the most substantive effort yet to hold the pope and the Vatican accountable in an international court for sexual abuse by priests".

No doubt, many people of faith are shocked that we would accuse a world church leader of crimes against humanity – a man considered by many to be infallible. But the man who is infallible must also be accountable.

By the Vatican's own account, "only" about 1.5-5% of Catholic clergy have been involved in sexual violence against children. With a reported 410,593 priests worldwide as of 2009, that means the number of offending priests would range from 6,158 to 20,529. Considering that many offenders have multiple victims, the number of children at risk is likely in the tens, or even hundreds, of thousands.

We believe the thousands of pages of evidence we filed this week will substantiate our allegations that an operation has been put in place not only to hide the widespread sexual violence by priests in all parts of the world, but also to obstruct investigation, remove suspects out of criminal jurisdictions and do everything possible to silence victims, discredit whistleblowers, intimidate witnesses, stonewall prosecutors and keep a tighter lid than ever on clergy sex crimes and cover-ups. The result of this systematic effort is that, despite a flood of well-publicised cases, many thousands of children remain vulnerable to abuse.

While many pedophile priests have been suspended in recent years, few have been criminally charged and even fewer defrocked. Worse, no one who ignored, concealed or enabled these predators has suffered any consequences. At the head of this hierarchy of denial and secrecy is the Pope, who has served as an enabler of these men. We believe the Vatican must face investigation to determine whether these incidences have been knowingly concealed and clergymen deliberately protected when their crimes have come to light.

I know this story well, because I was sexually abused by a parish priest, from my time in junior high school until graduation. Because of the shame and trauma, several years passed before I was able to tell anyone. By that time, it was too late to file criminal charges. Church officials refused to restrict that priest's access to children or take action against him for several more years, despite other victims coming forward.

Indeed, powerful factors prevent all but the most assertive, healthy and lucky victims from seeking justice. Many others succumb to drugs, anorexia, depression or suicide when the pain of innocence betrayed becomes too much to bear. A recent investigation in Australia revealed a case in which 26 among the numerous victims of a particular priest had committed suicide.

For the safety of children and the prevention of yet more heinous wrongdoing, the International Criminal Court may be the only real hope. What other institution could possibly bring prosecutorial scrutiny to bear on the largest private institution on the planet?

Our journey for justice has been a long one, and it's not over yet. But we know where it must end: with justice at The Hague.

By: Barbara Blaine

Barbara Blaine is president of Survivors Network of those Abused by Priests (Snap), the oldest and largest self-help organisation in the US for victims of clergy sexual abuse, which she founded in 1988. A survivor herself, she formerly worked as a social and attorney, advocating for children's rights. She is married and lives in Chicago.