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350   21 July 2002 

Justice in Court

a German footnote

I spent the whole of 1963 in Germany, studying German law.  At the instigation and expense of both Governments, a number of young UK barristers and solicitors were trained in German law, as part of preparations for UK accession to the Common Market (which was eventually vetoed by De Gaulle, in that year). 

I specialised, towards the end of the year, in German administrative law, and that was to influence much of my life thereafter.  But before we specialised, were were given an excellent grounding in German civil and criminal law, at the Land Ministry of Justice in Dusseldorf and at the University of Cologne.  And we attended several criminal trials.

German criminal justice has abandoned the tradition of deciding matters on a single "day in Court".  Other Continental jurisdictions have gone the same way, for reasons of expense and professional convenience.  Civil and criminal proceedings resemble a long drawn-out administrative process, with "The File" being dealt with by a number of different judges at different times, evidence taken in a number of different locations, in a system where the probing of the judge replaces the adversarial cross-examination of the UK system.  And it is a feature of this system that the Judge is constitutionally enjoined to establish the truth, before reaching a decision and imposing any sentence.

Sounds great, doesn't it?  I thought so too, until one case completely changed my view. 

A young woman was before the Dusseldorf Court on two alternate charges (a) infanticide, or murder, of her new-born child or (b) concealing a birth, a lesser administrative offence.  The birth had occurred in 1960, three years before, and the proceedings had been continuing since then.  The poor haggard young accused appeared before the Court (which was sitting with a combination of lawyers and lay jurors - Germany has no jury as such, but lay adjudicators are brought in to sit with the professional judges, and they are in a majority).  She was brought from prison, where she had been in detention.

What had happened was this.  When she first stood trial in 1961, some six months after the event, the key question had been whether the child had ever breathed, i.e. whether it had been legally "born" in the eyes of the law...  The unmarried girl had been on her own, and had literally, on her own confession, given birth to the baby sitting over a bucket of water.  The body of the child had fallen straight into the water, and it "died". 

Medical evidence established that the lungs were inflated at the time of the post mortem examination.  But her defence lawyer questioned whether they had been inflated by the inhalation of air.  He called evidence to show that, because of the timing of the events, vapours could have been generated by the putrefaction of the lung tissue.  There was real doubt about what had happened, and the medical evidence did not resolve that doubt.

Now, in an English Court, she would have been immediately acquitted and released, by any jury.  There was no proof of her guilt "beyond reasonable doubt", and the young girl could have have got on with her life - safe (thanks to the Double Jeopardy Rule) from any further threat or anxiety.  That would have been the right and just conclusion.

Not so in Germany (or in any Continental system concerned first-and-foremost with "truth").  The conscientious German judge, enjoined to establish the truth, ploughed on to establish that further research would be able to prove whether or not the vapour had been oxygen or putrefying flesh.  But that research might take 12-18 months before a conclusion could be reached.  Fine, said the Judge, get on with it.

The accused was kept in prison all that time, albeit with some generous home-leave arrangements.  After all, she charged with a variant of murder, and that could not be taken lightly.  And eventually, in June 1963, her case came up again.  I heard those proceedings.  The evidence was unequivocal: the vapour had indeed been oxygen, and the baby had therefore been alive when its fragile body hit the cold water.  The conclusion had to be Infanticide, murder, with the prospect of of an extended prison term.  But that is not what happened.

Here, the lay judges (as I believe, to this day) stepped in.  She was convicted, against the evidence, of the lesser offence of merely concealing the birth, and released straight away.  I think they were horrified by what the judicial system had done to this young girl - and they were determined to use their majority to do justice, as best it could still be done.

Our system, with its insistence that all the evidence is brought to court, on trial day, for cross-examination, would have given this young girl justice.  With Blunkett's abolition of double-jeopardy, however, she would have faced the risk of being tried again - the medical evidence, as I heard it with my own ears, was unequivocal.  the current preoccupation with DNA evidence is misleading: proof may later arise, in a thousand different ways.  She was guilty of infanticide.  And if the verdict had been left to the professionals, she might have spent several more years in prison.

I am passionately in favour of juries, and of lay involvment in all phases of our public life.  I am passionately in favour of retaining the day-in-Court form of justice, when all the parties have to confront each other.  I am equally convinced that the Double Jeopardy Rule must stay.  We must all have a degree of certainty in our lives, to assist us fight life's many uncertainties.  Even those who have done wrong are entitled to that sense of security, once the trial is over.

Whenever I hear anyone preaching the importance of "establishing the truth" of everything, my mind returns to the haggard face of that young girl, in that 1963 Dusselfdorf Courtroom. 

Truth is not everything it is cracked up to be..

These are matters of quite outstanding importance, and it is vital that a way is found of conveying to the Labour Government just how misconceived its proposals are...
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351  20 July 2002

Pay is not the issue

With the sound and fury of strikes in the air, public attention is focusing on the differences between 3% and 6%, with arcane comparators, with a living wage, and the Minimum Wage.  The discontent is being expressed principally by low-paid public service workers, including a much larger number of women than ever before, active in protest. 

Yet I still sense a massive discontinuity, between the strength of these feelings, and the minor pay differences in issue, of 2% or 3%.  It does not add up.  That is because the strikes are a proxy protest for many other deeper concerns, far less easy to articulate.  Let's deconstruct.

So far as the public sector workers are concerned, the real issue is loss of status and respect.  Old-style security of employment has gone, and will never return - in either public or private sector.   Having suffered the outright antagonism of the Tories, public servants now experience the stubborn commitment of Labour to the Private Finance Initiative, with its dismissive subtext of preference for private provision.  The speeches of both Milburn (Health) and Morris (Education) convey the unspoken premise that "if the public sector is found to be failing, a superior private sector will be brought in to rectify its faults".

No wonder public servants are demoralised.  New Labour has proved to be hopeless at public service management, skilled only at shooting its own troops from behind.  Public servants yearn to be led by Ministers who believe in them.   That is why the manifestly socialist Jane Davidson makes such a good Minister of Education for Wales.  For me, as a socialist, and a general manager by chosen profession, this managerial failure is hard to bear.  The Tories were bad at it because they lacked the right philosophy to manage the public service well: they were - and remain - endemically incapable of doing it well.   New Labour has blown it, because of its very pragmatism, and lack of coherent socialist philosophy.  It is nonsense to say "What matters is what works" - because that is self-evidently not true.   Pragmatism is not enough.

I have a sense of discontinuity for another reason.  Improving pay, securing better remuneration within contracts of employment, will never generate a just society.  Polly Toynbee made that mistake this week, in arguing for "a structured long-term plan for making pay fairer from the bottom right up to the fat-cat top" - From the Bottom up Guardian 19:7. 

Surely we have learnt that Government cannot intervene successfully in the remuneration system? That way lies Incomes Policy, with its unsustainable stresses and injustices. That is one of the 1990s lessons which must stay learnt.  The redistribution of wealth remains a key socialist objective, but it will not be achieved through the pay-packet, for a thousand compelling reasons.  It must be achieved by the provision of high-quality public services, and by simple outright universal benefits understood by all - with the minimum of reliance on tax-remission and means-tested benefits.  That is the socialist way.  Gordon Brown's strategy of tax-credits and means-testing will not work in the longer run, and will merely deepen welfare dependency (I agree with Frank Field on this..)

These strikes are indicative, not of the pay issues themselves, but of many other discontents.  It will take great political skill to read the runes aright, and to move the Government in the right direction.

These are difficult issues.  What do you think?  
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352  20 July 2002 

Don't confuse
the Unions with the Left

The Trade Unions have been vital to the Labour Party, throughout its history.  Trade unions were particularly important in the period before 1918, before the Party was constituted as an association of individual members (Nottingham, January 1918).  But the Party has always been an alliance between the trade unions and socialist associations - they have never been identified, the one with the other.  The alliance has been one of juxtaposition, of convenience rather than principle (see recent Peter Hain article)

Remember that, in the current spat about Derek Simpson's victory over Sir Ken Jackson.  Derek Simpson shows every sign of being a trade unionist first and a socialist second.  Bob Crow, at the RMT, although an ex-Communist like Derek Simpson, in not a member of the Labour Party, will also pursue union objectives, and seek better terms and conditions for his members.  That is right, and should not cause Labour any concern.

What role should Labour play, in the employment market-place?  Labour should advance on two fronts, and withdraw on a third.

  • Worker's Rights  Labour should continue to strengthen the rights of individual workers, in the employment relationship, whether unions are present in the workplace or not.  That is a recurring theme of European practice, and we should learn from that experience.
  • Union Rights  These are collective rights, of quite a different kind.  Labour should go further in redressing the Thatcherite deficit, and should re-empower the unions to play an active role as agents in the labour market.  Secondary strike action is a perfectly legitimate form of influence, widely practised by employers.  Trade unions should have greater rights of workplace operation.  The "recognition" criteria should be relaxed, to give trade unions better opportunities for recruitment.  State intervention remains necessary, to give unions some protection against the harsh doctrines of English Common Law, doctrines which are simply not present at all in Continental systems of law.  British trade unions need special protection, against a Very British Threat.

But otherwise, Labour should cease to rely on the employment relationship altogether, as an arm of State.  No reliance whatever should be placed on the provision of pensions by employers.  Employers should be relieved of the myriad obligations loaded upon them by the Thatcher State, to administer Sick Pay, Maternity Pay - for my part, I would even abolish PAYE, and make the Inland Revenue work harder to collect all Income Tax and National Insurance direct from the individual employee.  That is what government does for the self-employed - why not for the employed? There would inevitably be some loss of tax income, and management costs would be transferred from the employer to the public service.  But that is where they rightly belong.  And the "costs of employment" would be dramatically reduced, strengthening the competitive position of UK firms.

Does that sound right-wing?  If so, I say that radical thinking may sometimes generate odd bedfellows.   But it is not right-wing, properly understood: I say that public functions should be performed by public servants (my principle of Public Primacy...).   I do not like the contracting-out of tax collection to employers, and I would like to see it ended. 

There are here the makings of a New Labour settlement with the Employers.  In return for being relieved of all those burdensome public functions, the Employers would accept a new form of job-change security (see my idea of Adjustment Pay) and accept stronger trade unions, bargaining effectively in the market-place for better "terms and conditions".  It is the pragmatic British way, to allow employers and unions to scrap it out in the market-place, and there is much to commend it.  Provided that the individual worker is free to stay out of a union, and rely as a matter of choice upon a satisfactory quiver of individual rights.

What do you think?
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353   25 July 2002

The Newport Manifesto

I launch my international campaign for radical company law reform, this Friday at Newport.  I hereby solicit your support – add your signature, be in at the beginning!  You can find the full text, and a print-off Signatory Form, set out at     The Newport Manifesto

This Newport Fabian meeting gives me my third opportunity to tackle this vital theme.  At other local Fabian meetings (Bridgend, Caerphilly), I have been confronted with sheer disbelief, in explaining just how the corporations operate.  And there has been an immediate call for political action.  The demand is for some means of addressing the self-evident defects of international company law, now so graphically illustrated by the awful American collapses - Enron, Worldcom, and the hundreds more to come.
  • Footnote, USA - the US Federal Government is crippled, in its response to the corporate scandals of Enron, Worldcom and the rest.  Because “company law” is in the USA a States Rights matter.  That means that there are 50+ different systems of company law, and Congress cannot reform company law.  All Washington can do is to prescribe new duties, new penalties for companies that trade across America, but when it comes to re-designing the company itself, they must leave that to the State Legislatures.  There are Delaware companies, Maryland companies, New York companies, Alabama companies, Ohio companies – all similar yet subtly different, driven by different principles, observing different standards.  Indeed, that is part of the American problem

    This will be the Long March of the Left - my aim is to build up a huge marching column, as we progress - will you join us, and wave the odd banner or two along the way?

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354  -- July 2002

 of the Home Office.  

sense of outrage?
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355    -- July 2002

Those are glittering prizes.

It would be good to hear from other kindred spirits, who take constitutional reform seriously!  there are not many of us about...
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356    -- July 2002

a browse – check it out.

 consider signing?
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357    -- July 2002

t lives.

Should the Party now de-couple from the Unions?  Are there strong arguments in favour of divorce?
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358    -- July 2002

 it…

 commuters seeking to preserve their subsidised privileges? Drop me a line > < Back to Home Page


 

 

 

 

 

 

 

 

 

 

 


359     -- July 2002

fulfilling life. 

 many other views are held, even on the Left - what do you think?
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F ootnote one  

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Footnote two

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