Access to justice is no longer a worker’s right, but a luxury

Aditya Charkrabortty in The Guardian


Laws that cost too much to enforce are phoney laws. A civil right that people can’t afford to use is no right at all. And a society that turns justice into a luxury good is one no longer ruled by law, but by money and power. This week the highest court in the land will decide whether Britain will become such a society. There are plenty of signs that we have already gone too far.

Listen to the country’s top judge, Lord Thomas of Cwmgiedd, who admits that “our justice system has become unaffordable to most”. Look at our legal-aid system, slashed so heavily by David Cameron and Theresa May that the poor must act as their own trial lawyers, ready to be skittled by barristers in the pay of their moneyed opponents.

The latest case will be heard by seven supreme court judges and will pit the government against the trade union Unison. It will be the climax of a four-year legal battle over one of the most fundamental rights of all: the right of workers to stand up against their bosses. 

In 2013, Cameron stripped workers of the right to access the employment tribunal system. Whether a pregnant woman forced out of her job, a Bangladeshi-origin guy battling racism at work, or a young graduate with disabilities getting aggro from a boss, all would now have to pay £1,200 for a chance of redress.

The number of cases taken to tribunal promptly fell off a cliff – down by 70% within a year. Citizens Advice, employment lawyers and academics practically queued up to warn that workers – especially poor workers – were getting priced out of justice. But for Conservative ministers, all was fine. Loyal flacks such as Matthew Hancock (then employment minister) claimed those deterred by the fees were merely “unscrupulous” try-ons, intent on “bullying bosses”. Follow Hancock’s logic, and with all those time-wasters weeded out, you’d expect the number of successful tribunal claims to jump. They’ve actually dropped.

At each hearing of Unison’s case, the judges have wound up asking to see actual people for whom the fees have represented a barrier to justice. One was sure that“if the statistics … were drilled down to some individual cases, situations would be revealed that showed an inability on the part of some people to proceed before an employment tribunal through lack of funds”.

Should the supreme court judges want the same thing, they could meet Liliana Almanza. They’d find her a compelling witness, although she finds it hard to sit down for too long due to three herniated discs in her lower back, which make her feel like she’s lugging around “a lot of heavy weight” and which send pain shooting into her hands, legs, shoulders and neck. She also has sometimes severe depression and anxiety. The physical pain and the mental illness can feed off each other.

Almanza has worked as a cleaner at the University of London since 2011 and never kept her conditions from her employer, an outsourcing company called Cofely. Then came a new supervisor, who Almanza felt had it in for her and who piled on extra work. Almanza was sent to the “punishment floor” – actually three floors, normally handled by two people, but she had to do the work on her own and in little time. The extra workload, especially the pushing about of a hoover and a mop, caused her so much pain that she sometimes felt dizzy. Yet when Almanza complained, she says the supervisor either laughed or told her to sign off sick. Despite being required under law, there was no adjustment for her disabilities.

Almanza, who is Colombian, remembers the supervisor telling her how Latin Americans were a bunch of beggars. Other times, she’d call Almanza a “bitch” and a “whore”.

On the worst days, Almanza would walk over to Euston station and stand at the platform’s very edge. She’d wait for the tube to come. Then “a light would come on” and she’d pull herself back.

Almanza did exactly what ministers would want and submitted a grievance using Cofely’s in-house procedure. It was rejected. She appealed and did not hear anything for months. However desperate her situation, she would never have found the money for a tribunal. Some are exempt from the fees, but Almanza and her husband – both cleaners – apparently earned too much money for her to qualify. Nor does the means-testing account for living costs, even though after renting a single room in a shared ex-council house in London and paying bills they have almost no money each month.

Her union, the tiny Independent Workers of Great Britain (IWGB), pitched in some money to go to tribunal and helped crowdfund the rest. As soon as she did, Almanza remembers that her employer made a number of adjustments and lightened her workload.

I contacted Engie, as Cofely has been rebranded, for its response to Almanza’s charges. Its statement reads in part: “We do not tolerate discrimination in the workplace and all claims … are investigated thoroughly. Following extensive investigation of the allegations brought against Cofely Workplace, all claims were denied and Cofely was formally discharged from the proceedings by the court on 24th May 2016.” The court documents actually show that Cofely was discharged because the contract was taken over by another company, which also reached a settlement with Almanza.

Without charity and the shoestring resources of the IWGB, Almanza wouldn’t have been able to file a claim. If she could testify to the supreme court, what would she say? “I would tell the judges if I hadn’t been able to go to tribunal I don’t think I’d be here today. If I’d continued like that, I wouldn’t have been able to tell this story. Maybe it sounds like an exaggeration, a movie. But it’s one thing to talk about it, another thing to live it.”

Tribunal fees deter four out of five employees pursuing claims

From The Independent

Employment tribunal fees have been branded "a barrier to justice", the high charges discouraging four out of five workers from pursuing claims against their employers, according to Citizens Advice.

The charity has found that nearly half of workers with employment issues would have to save for six months in order to afford employment tribunal fees, which in some cases can reach £1,200.

Citizens Advice has called on the Government to align tribunal fees with county court charges in order to widen access. It has also asked for greater promotion of available financial support, and more research to assess what measures could be taken to protect employers without deterring legitimate claims.

Employment tribunal fees were introduced by the Government in July 2013, aiming to transfer the £74m cost of running tribunals and the Employment Appeal Tribunal from the taxpayer to those using the system. Fees range from £160 to £250 to issue a claim, and £230 to £950 for a tribunal.

Before the fees were introduced, Employment Tribunals (ETs) received an average of 48,000 new claims per quarter. However the most recent ET figures for July to September 2014 show that this had dropped to 13,612 new claims.

Last week the trade union Unison, which wants to abolish the fees, lost a second bid to have the fees legally reviewed. Despite the dismissal, the Court of Appeal has granted Unison permission to appeal the decision.

Employment barrister, Harini Iyengar

The Citizens Advice survey found that the fees made more than four out of five workers less likely to claim, or deterred them from claiming at all. Over four in 10 of those with employment troubles had a household income of less than £46 a week after essential bills, highlighting the gulf between the high fees and working wages.

Only three in 10 were aware that financial support is available for those on low incomes. Half of those surveyed believed that they were not eligible for support when in fact they qualified.

Gillian Guy, chief executive of Citizens Advice, said: "The employment tribunal system is imbalanced against claimants. Fees are pricing people out of basic workplace rights and a justice system that is supposed to protect them.

"The Government needs to take an urgent look again at how the fee system benefits those workers who feel the prices are a barrier to justice."

Labour has promised to abolish the fees, and reform the employment tribunal system if the party is elected. Sadiq Khan, Labour's shadow Justice Secretary, said: "At a time when people need support and legal advice more than ever, the Government has slashed legal aid, leaving thousands of people adrift without any support whatsoever … This policy has denied justice to thousands of people, yet all it does is displace costs on to other branches of government. It's a short-sighted policy that has far-reaching and negative ramifications."

Sadiq Khan, Labour’s shadow Justice Secretary; Labour has promised to abolish the fees, and reform the employment tribunal system if the party is elected (AP)

Damian Brown QC, a sports and employment lawyer and former chair of the Employment Law Bar Association, said: "Most of the profession believes access to justice should be free … Most businesses have insurance or the opportunity to join an employer's federation for a small fee, so the idea of tribunal fees being a protection against frivolous claims is not a significant problem."

Harini Iyengar, a barrister who specialises in employment and discrimination law, said: "The drop we've seen in employment tribunal cases has been extremely striking; I've not seen anything like it in 15 years of practice … It is important in a democratic country we respect working people and tribunals are essential for the British economy and to a vibrant working community."

Justice Minister Shailesh Vara defended the fees saying: "Small businesses can be hamstrung by unfounded employment tribunal claims and taxpayers should not have to pick up the £74m bill for running the service. We've made sure fee waivers are available for those who can't afford to pay, as well as diverting people away from potentially acrimonious hearings, where possible, through a new early conciliation scheme which has already been used by 37,000 people in its first six months."

Radovan Karadžić awaits his verdict, but this is two-tier international justice

The ex-Bosnian Serb leader has been prosecuted, yet the war crimes tribunal resists calls to indict others

• 
• • Ed Vulliamy
  • The Guardian, Tuesday 30 September 2014 20.15 BST

Illustration by Belle Mellor

There he was, on the other side of the bullet-proof glass: Radovan Karadžić himself, inches away, accused of genocide and other war crimes across Bosnia during the 1990s. He saluted me with an entwinement of avuncular cordiality and cold-like-ice.

This was an “interview” to which Karadžić, defendant at the war crimes tribunal in The Hague, is entitled before his prosecutors called me as a witness, back in 2010. During cross-examination, Karadžić posited the bizarre notion that only ONE person had died in the infamous concentration camp at Omarska it had been my curse to uncover in 1992.

This week, nearly five years after his trial began, come the closing arguments that will lead either to Karadžić’s acquittal or conviction for ordering the hurricane of violence he himself called ethnic cleansing between 1992 and 1995.

If nothing else, the prosecution will serve to remind us that carnage of that kind is still possible in modern Europe: death, torture, mass rape and mutilation in the camps; the siege and torture of a great European capital, Sarajevo; the summary massacre of 8,000 men and boys at Srebrenica. Karadžić has asked for 17 hours to outline his explanation for all this, under his alleged command.

Karadžić was political commissar of the Bosnian Serb project for a racially “pure” state during those years and, along with the verdict on his military counterpart, General Ratko Mladic, the outcome will be the highwater mark of the two-decade enterprise in what was to be groundbreaking international law enforcement by the International Criminal Tribunal for the former Yugoslavia (ICTY).

The man leading the Karadžić prosecution, Alan Tieger, was there at the outset prosecuting its first defendant in 1996, a parish-pump sadist and murderer called Dusko Tadic, now free after serving his sentence.

I was called by the tribunal in the early days, when it was lean, keen and felt right on its side. The court had been established in 1993 through both contrition and ambition. Contrition, because the UN had already become inept and cynical to the point of complicity in the slaughter it now sought to prosecute (though ironically, the worst was yet to come in 1995, when Dutch troops delivered the “safe area” of Srebrenica to the slaughter). Ambition, because the ICTY was seen as putting into action a brave new world of human rights, whereby the bullies of history would be held to account.

A lot can happen to a UN organism in 20 years. I testified in eight trials, have given months of work to the tribunal, and watched it bloat: heard clear language of law and liability replaced by jargon and anagrams; watched communication become a logjam of bureaucracy and hierarchy; listened to the wretched survivors summoned to testify, and wonder how much money was being made in their name. Answer: one hell of a lot.

But more important clouds have gathered over the ICTY. One concerns the promise – oft-spoken and crucial to the Hague’s raison d’etre – that its existence would deter mass murderers of the future. President Assad of Syria shows no sign of such quaking in his shoes.

A second was the tribunal’s extra-judicial brief: that it not only judge those accused, but also promote reconciliation. One of the tribunal’s major achievements has indeed been that the narrative of the war was told from witness chairs during “victim testimony”– the voices of the survivors. But there has been no reconciliation.

Bosnia is a living example, because there has been no reckoning. Reckoning, a prerequisite to reconciliation, is a harsher word which entails coming to terms with the calamity, staring at oneself in the mirror, and making amends – historical, political and material. This has not happened in a land still riven by partition as dictated by the vanities of the Dayton peace agreement, which ended the war by rewarding Karadžić’s project and granting his “Republika Srpska”, where children attend two schools under the same roof, where denial of the massacre at Srebrenica and concentration camps is still de rigeur and a means of maintaining power.

To this reality even 20 years on, the ICTY has added little or nothing: one could argue that more community-level bonding between ethnicities resulted last year from protests against privatisation, flooding, and the qualification of Bosnia’s football team for the World Cup in Brazil.

And doubts raised by recent verdicts have seemed to unravel the ICTY’s own work. Two rulings in the appeals chamber in 2012 and 2013 overturned the crucial convictions of the Croatian general Ante Gotovina and the commander of the Serbian (Yugoslav) army Momčilo Perišić. Chaired on both occasions by Judge Theodor Meron – a Holocaust survivor, former Israeli diplomat and US citizen – a majority of judges ruled that theevidence lacked “specific direction” to the troops under the generals’ command to commit atrocities. In other words, the buck stops short of the top, even when we all know war crimes have been committed.

This was galling for prosecutors because once the dramatic “victim testimony” was entered against small fry like Tadic, the hard, drier, work had been to establish chains of command that connected the political and military leaderships to the atrocities. For instance – in a tip to President Assad – the bench under Judge Meron deemed that to shell a community into the rubble until the survivors flee does not constitute deportation, since the emptying out of population was not “specifically directed”.

There were vehement dissenters from the bench in both cases: but back home, to illustrate the point about reconciliation, Bosnian Croats whooped and celebrated the liberty of Gotovina while spitting their outrage at that of Perišić; Bosnian Serbs did exactly the reverse. One’s own side cannot commit a war crime, it seems – only the enemy – in the land of un-reckoning.

But the most severe doubt about the ICTY, which does not concern its remit so much as its legacy, is who gets prosecuted in the brave new world of human rights. When Archbishop Desmond Tutu wrote in the Observer that former British prime minister Tony Blair should be indicted for war crimes in Iraq, he raised the question: how high are future indictments at the permanent international criminal court or other ad-hoc tribunals like the ICTY going to aim? So far, the ICC has failed to indict a single person who is white. It staunchly resisted calls for an indictment for General August Pinochet of Chile; Blair is not even on its radar screen, for all the archbishop’s pleading.

The questions remain, beyond Karadžić. Why Charles Taylor and not Blair, Bush or the Israeli bomber command that targeted schools in Lebanon and civilian shelters in Gaza? At what point does the ICC address environmental or corporate crime: mining companies before which entire communities in Africa and Latin America vanish, or banks involved in systematic laundering of the profits of drug cartels?

Legal philosopher Costas Douzinas has written a book daring to suggest that “human rights” are becoming tools of the powerful nations, more than sacrosanct principles as defined by his ancestors in Greece, the French revolutionaries and Tom Paine.

It has been a long, worthwhile haul from the Tadic trial to that of Karadžić, and an acquittal over “specific direction” would be grotesque while the earth still gives up its dead around Srebrenica and the camps. But after that, for Douzinas to be proved wrong, the lucrative carousel of international justice needs to raise, not lower, its sights.

Compelling case for Iraq war crime tribunal

The Age of Deception: Nuclear Diplomacy in Treacherous Times by Mohamed ElBaradei

Reviewed by Kaveh L Afrasiabi

This book, eloquently written by a former director-general of the International Atomic Energy Agency (IAEA), is a must read, both for the wealth of information it provides on the contentious issues of global nuclear diplomacy as well as for the passionate and compelling case that it presents for a war crime tribunal to  prosecute United States and British leaders who instigated the calamitous invasion of Iraq in 2003 on the false pretext of weapons of mass destruction.

In blunt yet sincere language steeped in international law, ElBaradei writes that in light of the US's complete "disdain for international norms" in its invasion of Iraq, the United Nations should request an opinion from the International Court of Justice (ICJ) as to the legality of the Iraq war.

Convinced that the overwhelming weight of evidence favors a negative verdict if the ICJ ever braved such an initiative, ElBaradei then makes a case for the International Criminal Tribunal to "investigate whether this constitutes a war crime". (pg 87)

Irrespective, ElBaradei is so morally outraged by the blatant pulverization of a sovereign Middle East country by a Western superpower and its allies that he also advises the Iraqis to demand war reparations - that is sure to amount to tens of billions of dollars.

If for nothing else, this book's value - in putting self-righteous Western powers on the defensive and depicting them as essentially rogue states that have caused a new global anarchy by their willful exercise of power without much regard for the rights of others - is indispensable.

Divided into 12 chapters with a useful conclusion on the future of nuclear diplomacy, the book covers nearly three decades of the author's involvement with various cases, ie, Iraq, North Korea, Libya and Iran, the notorious "nuclear bazaar of Abdul Qadeer Khan" in Pakistan, as well as nuclear asymmetry and the hypocrisy and double standard, not to mention outright deceptions, marking the behavior of US and other Western countries (along the familiar North-South divide).

In the chapters on Iraq, ElBaradei defends the cherished record of his agency in refusing to act as a sounding board for post 9/11 warmongering US policies, which earned him the occasional venom of US media that questioned his integrity. In fact, ElBaradei is equally critical of the compliant Western media that often act as indirect apparatuses of state despite their wild claims of neutrality and objectivity.

Although much of what ElBaradei writes about the US-British deceptions to go to war in Iraq is already well-known, it is instructive to revisit those "grotesque distortions" - as he puts it - from a reputable source who for years was caught in the maelstrom of contesting politics of non-proliferation.

With respect to the British role under premier Tony Blair, whom he accuses of a false alarm on Iraq's chemical weapon capability, ElBaradei actually underestimates the degree to which London influenced Washington on Iraq, characterizing this instead as a "one-way street" with the British "acting as apologists for US". (pg 67).

But, ElBaradei is not a foreign policy expert and his shortcoming, in detecting the American foreign policy elite's vulnerability with respect to British political influence, is forgivable. This is a minor defect in a solid contribution that sheds much light on how the US manipulated the UN atomic agency as "bit players" in its scheme to invade Iraq.

It shows the Pandora's box opened by the IAEA when it agreed to receive foreign intelligence from member states spying on others, thus opening the door to calibrated disinformation often beyond the ability of the agency and its meager resources to authenticate.

As a result, today the IAEA has turned into a de facto ''nuclear detective agency" that constantly receives tips from Western clients targeting specific countries. Sooner or later, either this unhealthy situation is rectified or we must expect more gaping holes in the agency's credibility.

With respect to North Korea, which has exited the nuclear Non-Proliferation Treaty (NPT) and proliferated nuclear weapons without much international backlash, ElBaradei blames the US's failure to live up to its agreed commitment and the fallacy of "attempts to contain proliferation ambitions through confrontation, sanctions, and isolation". (Pg 109)

He also writes about Libya's voluntary disarmament in 2004, a decision that the late Muammar Gaddafi now regrets in his grave, given the likelihood that the North Atlantic Treaty Organization (NATO) would have thought twice about attacking Libya under the guise of "responsibility to protect", thus making a mockery of the UN, if Tripoli had retained a nuclear shield.

For sure, this issue must loom large on the mind of many developing nations that have clashing interests with the (increasingly bullying) Western powers.

ElBaradei has devoted a whole chapter to the subject of nuclear double standards that discusses, for instance, how South Korea's clear evidence of non-compliance was shoved under the rug by the US in 2004 simply because it is a US allay.

The US and other privileged nuclear-have nations have been derelict in their NPT obligations to move toward nuclear disarmament, some, like France and Britain, modernizing their arsenals, while at the same time having the audacity of taking the moral high ground against countries suspected of clandestine proliferation.

ElBaradei writes that in the Middle East, "The greatest source of frustration and anxiety was the regional asymmetry of military power symbolized by Israel's arsenal." (pg 223) And yet, Israel, which since its bombardment of Iraq's nuclear facility in 1981 has been mandated by the UN Security Council to place its nuclear facilities under the IAEA inspections, has evaded this obligation with impunity.

Regarding Iran, extensively dealt with in four chapters, ElBaradei seeks to present a balanced account that pinpoints the chronology of events, interactions and negotiations that are still ongoing as of this date, thus making the book an indispensable tool for those who follow the developments in the Iran nuclear crisis.

Since his retirement from the IAEA, ElBaradei has repeatedly gone on record to state that during his tenure at the agency he never saw any evidence that Iran was proliferating nuclear weapons.

What is more, he informs readers that after the 2007 US intelligence report that confirmed that Iran's program had been peaceful since 2003, "I received a follow-up briefing by US intelligence. They did not show the supposed evidence that had let them to confirm the existence of a past Iranian nuclear weapon program, other than to refer to the same unverified set of allegations about weaponization studies that had already been discussed with the agency." (pg 269)

He also writes, "The Americans did acknowledge - as in most previous intelligence briefings - that there was no indication that Iran had undeclared nuclear material." (pg 262) Indeed, this is important information, given that in more than a dozen reports on Iran the IAEA has repeatedly confirmed the absence of any evidence of military diversion of "declared nuclear material".

In Chapter 11, on the "squandered opportunities" with Iran, the author writes about Iran-IAEA cooperation through a workplan that resulted in the successful resolution of the "six outstanding" issues that had led to the IAEA's referral of Iran's file to the UN Security Council.

Missing in this book is any mention of that workplan's concluding paragraph that stipulated the agency's treatment of Iran's nuclear file as "routine" once those issues were resolved. That this did not, and as of today has not, happened is solely due to the US-led disinformation campaign that burdened the IAEA with new data coming from a stolen Iranian lap top, even though ElBaradei readily admits that "the problem was, no one knew if any of these was real". (pg 281).

He discretely blames his deputy, Ollie Heinnonen, now turned into a valuable US asset from his recruitment by Harvard University, of buying "into the US accusations" (pg 281), and laments the fact that on a number of occasions the US scuttled meaningful negotiation with Iran by "refusing to take yes for an answer".

Questioning the US's negotiation strategy toward Iran, in a memorable passage that rings relevant to today's context of new multilateral talks with Iran, ElBaradei writes: "It was naive to ask Iran to give up everything before the start of the talks and expect a positive response. But the problem was familiar, nothing would satisfy, short of Iran coming to the table completely undressed." (pg 313)

In a clue to the direct relevance of this book to the Iran nuclear talks this weekend in Istanbul, where the US has put its foot down by demanding Iran's suspension of its 20% uranium enrichment, ElBaradei readily admits that under the NPT, Iran has the right to possess a nuclear fuel cycle, like "roughly a dozen countries" around the world. Moreover, he reminds us of the absence of a legal basis for the US's demand, in light of the fact that "many research reactors worldwide also use 90% enriched uranium fuel for peaceful purposes, such as to produce medial radioisotopes". (pg 14)

As he puts it in the final chapter, on the quest for human security, this cannot be a selective, or rather elitist, process that benefits some while depriving others. In today's increasingly interdependent world, the idea that the threat of nuclear proliferation can be contained while the asymmetrical nuclear-have nations hold onto their prized possessions and even use them to threaten the non-nuclear nations, is simply a chimerical dream that has a decent chance of turning into a nightmare. This is the core message of ElBaradei's timely book that cannot be possibly ignored.

The Age of Deception: Nuclear Diplomacy in Treacherous Times by Mohamed ElBaradei. Metropolitan Books, Henry Holt and Company, New York, 2011. ISBN-10: 0805093508. Price US$27, 322 pages with index 340 pages.

Kaveh L Afrasiabi, PhD, is the author of After Khomeini: New Directions in Iran's Foreign Policy (Westview Press) . For his Wikipedia entry, click here. He is author of Reading In Iran Foreign Policy After September 11 (BookSurge Publishing , October 23, 2008) and Looking for rights at Harvard. His latest book is UN Management Reform: Selected Articles and Interviews on United Nations CreateSpace (November 12, 2011).

(Copyright 2012 Asia Times Online (Holdings) Ltd. All rights reserved. Please contact us about sales, syndication and republishing.)