Strategic litigation: anti-racism in the courtroom?

Rebecca Sparrow, second year LLM student, discusses a recent event about how to challenge structural and state-sanctioned racism in law.

The Centre for the Research of Race and Law’s most recent event, Strategic Litigation: Anti-Racism in the Courtroom?, hosted two panels, each of which broadened understandings of what strategic litigation does and might look like. How, whether, and when to litigate, and how to ethically, and effectively occupy Mari Matsuda’s ‘multiple consciousnesses’ of working within and against the law, is a constant and pressing concern for anyone involved in social justice or political campaigns, critical academia and legal advocacy. This set of workshops provided a stimulating space for discussion and exploration of this fraught battleground of the law, particularly in the context of challenges to structural and state-sanctioned racism, including in its ever-increasing formulation through immigration policy.

In the first session, Ioannis Kalpouzos from the Global Legal Action Network suggested a challenge to Upendra Baxi’s suggestion that all political issues of salience in the second half of the 20th Century must be articulated through human rights. Kalpouzos described the Network’s efforts to use the International Criminal Court to challenge offshore detention in Australia, a country he described as the ‘envy of the Western world’ when it comes to brutal immigration regimes. He explored the potential of using International Criminal Law to name and label western state-sanctioned violence – even when that violence is not spectacular or radical, but bureaucratic and all-pervasive. This raised questions from the audience about whether using criminal law might exceptionalize particular moments of violence, and therefore also serve to normalise violence that we should be pushing to be accepted as human rights violations. The responses to these questions made the particularly strategic nature of such litigation clear.

Lewis Kett from Duncan Lewis Solicitors, one of the main law firms with legal aid contracts to represent those in UK immigration detention, spoke about his recent successful case challenging laws on segregation in immigration detention centres. Although this, and previous wins of Duncan Lewis’, have been important, and provided some of the only real positive changes to detention policy in recent years, Kett also expanded on the extent of the problems within existing policy, and how much further there is to go. In response to queries from workshop participants, he reflected on whether improving structurally violent institutions such as detention can serve to make them more palatable without removing their inherent violence, but concluded that as a solicitor it is ethically impossible not to litigate for reform where possible, not only to change practice but also to provide accountability, and as part of wider campaigns.

The second panel began with Muhammad Rabbani, the director of CAGE recently charged and convicted under terrorism legislation for refusing to hand over the passwords to his mobile phone and laptop in Heathrow airport. He was stopped under Schedule 7, the law introduced in 2000 that sees 50,000 people per year stopped in airports, with no right to remain silent, to seek legal advice, to refuse a strip search or the handing over of data. The 99.8% non-arrest rate, as Rabbani highlighted, signifies a breach of the Magna Carta principles against suspicionless arrest. Rabbani asked brave, poignant questions about how he might have been treated, both during his arrest and during legal proceedings, particularly when unable to find any lawyer willing to submit a judicial review on his behalf because he had a ‘pigmentation problem’, and so wasn’t considered ‘the ideal case’. Thus Rabbani questioned the possibilities for strategic litigation when the law is actively constructed to target Muslims. Where, in this context, is the space for strategic litigation? Rabbani had to take his strategy beyond the courtroom and run his own campaign.

Gracie-Mae Bradley’s presentation followed on perfectly from Rabbani’s warnings. She spoke about her experience both within human rights organisation Liberty, and as an organiser of the Against Borders for Children (ABC) campaign. In particular, she highlighted ways in which litigation, however strategic, is severely compromised if it is not accompanied or preceded by wide-reaching social campaigns. She drew attention to previous strategic wins in the context of UK immigration detention, such as the retracting of the Detained Fast Track programme, and the way in which the Home Office is finding ways to re-introduce slight variations on the same policies only a couple of years later. Litigation, she reminded us, is a way of challenging policy that is fully incorporated within the limits of the system that created it, and controversial policy changes are often actively channeled by Government into legal frameworks, as the delays entailed by public consultations often mean that any successful litigation has to be applied retrospectively, which makes old policies easier to reinstate later. Quoting Gary Bellow, himself quoted by Derrick Bell, in the context of Leroy Clark’s insistence that an over-reliance on the law limited the potential of the black community’s success in pushing for school desegregation in the South, Bradley noted that ‘rule change, without a political base to support it, just doesn’t produce any substantial result because rules are not self-executing: they require an enforcement mechanism.’ Thus she showed that ‘riding on a technicality’, to which much strategic litigation must often be confined, though often crucial, is never enough to establish real change alone. Using the examples of data collection in schools that can be used to inform the Home Office of undocumented children and their parents, she argued that litigation must be accompanied by campaigns that highlight the implications and mechanisms of damaging policies, rather than just channelling the technicalities of their implementation.

Shining a light from a different direction, though with many of the same implications, Chai Patel explored the difficulties litigating strategically in anti-racist campaigns, when many of the effects of harmful and racist policy are not quantifiable in the terms required by the law. Speaking about the Joint Council for the Welfare of Immigrants’ attempts to challenge the Right to Rent legislation of 2016, Patel described the insidious ways in which even though the requirement on landlords to ensure the immigration status of their tenants encouraged, in their own words, discrimination on the basis of perceived race or nationality, it was very difficult to quantify and record such prejudice. In particular, the detail that landlords will be fined for not checking documents if tenants are found to be residing unlawfully, but not for failing to check if they are legally renting, encouraged this discrimination. Thus the detail in the legislation makes it particularly likely to encourage biased assessments of prospective tenants’ immigration status. It also makes it particularly hard to collect data, pushing all conclusions into the realm of the hypothetical. Although litigation might, in this case, be one way to challenge the policy, it has been incredibly hard to show that it was the policy itself that was causing discrimination.

To sit in a room with such a broad mix of academics and practitioners, getting absorbed in the details, methods, implications, ethics, efficacy and revolutionary potential of strategic litigation against racist policy was inspirational. The mood was neither of cynical criticism nor naively hopeful for impossible change. And though the workshop participants, panellists and audience, provided necessary and timely reminders not to put all our faith in litigation, however strategic, the conference itself was inspiring testament to Rabbani’s moving encouragement that if we strive for compassion and courage, much is possible.


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Why Should Britain keep its Human Rights Act?

This post was contributed by Devin Frank Law (LLM) graduate. Devin attended Bianca Jagger’s speech at the School of Law’s annual Patrick McAuslan Lecture on Friday, November 6  

Bianca Jagger

Bianca Jagger

We all see the signs in the tube, listen to the debates in the evening news and read the contrasting opinions in the Daily Mail and The Guardian.

Should David Cameron’s majority government scrap the Human Rights Act? Should they lead us out of the Convention of Europe? Should the UK exit the European Union?

On Friday 6 November 2015 long-time human rights activist and the Council of Europe Goodwill Ambassador Bianca Jagger spoke at Birkbeck to give an enlightened and informative perspective on the UK’s current human rights debate.

While Bianca’s talk did indeed have the emotion, humour and flair one might expect from a human rights rockstar (figuratively speaking) — her talk was also a well-researched and academically sound historical analysis of how Britain developed its long standing and legally robust human rights tradition.

From Magna Carta to migrant crisis

Bianca began her talk by reminding us that Britain was not always a democracy governed by the rule of law. For most of its existence England had a Monarch who answered neither to Parliament nor the people and governed with absolute authority. In the year 1215 this began to change when King John bound himself to the Magna Carta; however, and as Bianca persuasively argued, the principles emanating out of the Magna Carta took 800 years to root themselves in law culminating with the 1998 Act of Parliament — the Human Rights Act.

We were also reminded throughout Bianca’s talk that 730 years after the Magna Carta the people of Europe endured the worst abuse of authority and government power in the continent’s history. In the context of the current debate – should the UK leave the council of Europe – Bianca reminded us that following the horrors of the Second World War, the general consensus of ‘never again’ UK authorities led the way in drafting and establishing the 1950 European Convention of Human Rights.

In the context of the current migration crisis Bianca did state that 65 years after the ratification of the European convention of Human Rights, it’s odd and indeed counterintuitive that in the midst of yet another humanitarian catastrophe, British Politicians are looking to reduce and take away the rights of the people.

One might argue that British politicians are simply looking for political ways to reduce their moral, ethical and legal responsibilities; however, and through her talk, Bianca argued that ‘our’ human rights are the result of hard fought battles and elements of British Society that we the people must defend.

A weak UK Human Rights Act

Bianca JaggerThe underlining message and golden thread of Bianca’s talk was that human rights belong to the people and are there to protect the people. Everyday otherwise normal people rely on their human rights in housing and employment tribunals, in cases against their local councils and in situations where individual police officers attempt to overstep their authority. An important example is the relationship between our democratic duties as citizens and our right to protest when we feel that our political representatives have led us astray.

In closing this blog, I will attempt to leave you with a rather simplistic observation. Bianca’s argument is that we need our human rights and any attempt to weaken our legal rights is an attack on the society we have spent 800 years building.

However, I would point out the Britain’s Human Right’s legal framework is already weak. Compared to other similar countries, Germany or Canada for example, the UK’s Human Right’s Act is incapable of declaring a government decision or policy unconstitutional. If Parliament is truly intent on ignoring human rights, they can.

Perhaps than, what should be taken from Bianca’s talk and this simple observation is that it is as important now as ever before to not only defend the human rights that we do have, but to continue to build a society based on the rule of law and the individual rights of citizens i.e the battle has been hard fought but there is still work to be done.

The message should therefore be that instead of taking three steps backwards and abolishing the Human Rights Act, we should be taking five steps forward and not only protecting the Human Rights Act but actively working to strengthen it so as to ensure that our rights are truly and genuinely protected.

View the Patrick McAuslan lecture 2015 below:

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Cinema and Human Rights Days

This post was contributed by Dr Emma Sandon, Lecturer in Film and Television, Department of Media and Cultural Studies

What is the impact of cinema in raising public awareness of human rights? Can films about human rights make a difference and promote political change? These are some of the questions that the Cinema and Human Rights Days addressed at the Gordon Square cinema, Birkbeck, on 15 and 16 March. Timed to coincide with the Human Rights Watch Film Festival in London, Birkbeck hosted a debate on human rights cinema, a screening of Salma and a Q & A with the documentary film director, Kim Longinetto, and heard John Biaggi, the Human Rights Watch Film Festival director and Nick Fraser, the BBC commissioning editor of Storyville, talk about their promotion of human rights films and programmes.

John Biaggi talked about how important it was that ‘good’ human rights films were selected for the Human Rights Watch Film Festival and he explained how that criteria was arrived at, whilst Nick Fraser, in his discussion of the importance of storytelling for any programme that television commissioned, admitted that ‘the spectacle of injustice is always gripping’. Rod Stoneman, former commissioning editor at Channel 4 and director of the Irish Film Board, presented a timely discussion and screening, in the week that Hugo Chavez died, of Chavez: Inside the Coup (also entitled The Revolution Will Not Be Televised|) (2003), a film that caused media controversy when it was screened on the BBC and which was turned down by the Amnesty International Film Festival in Vancouver for being biased in favour of Chavez. Participants then watched the Human Rights Watch Film Festival screening of Haitian filmmaker Raoul Peck’s film, Fatal Assistance (Haiti/France/US, 2012), an indictment of the international community’s post- earthquake disaster intervention and the failure of current aid policies and practices. The screening was followed by a discussion with the director at the ICA.

Dr Oscar Guardiola-Rivera, from Birkbeck’s School of Law, and I asked participants to consider the politics of human rights discourse in film. What is a human rights film? How has the notion of a human rights film emerged? Can we talk about a history of human rights cinema? How are human rights films selected, promoted and circulated through film festivals, broadcasting, cinema theatrical release, dvd sales and internet distribution? What are the criteria by which a human rights film is judged?

I discussed how the human rights film has been constituted by human rights film festivals, first set up in the late 1980s and 1990s by human rights organisations, to promote human rights advocacy. The Human Rights Watch Film Festival and the Amnesty International Film Festival (now Movies that Matter), the two largest of such initiatives, then established the Human Rights Film Network in 2004, to ‘promote the debate on the ethics, professional codes of conduct and other standards regarding human rights film making.’ The charter of this network seeks to promote films that are ‘truthful’ and that have ‘good cinematographic quality’. It is these criteria of style and taste that become politically charged in the process of commissioning, selecting and curating films. If we look at a range of examples, it becomes clear that the subjects of human rights films are constituted in specific ways. However the way in which film represents human rights and engages viewers and audiences are complex. It is important that we understand the effects of the different audio and visual narrative and rhetorical devices used in films, be they feature films, documentary, newsreel, essay films, community or advocacy video.

Oscar Guardiola-Rivera reflected on the dimension of political agency shown in films that represent revolutionary struggle in Latin America. Drawing on his forthcoming book, Story of a Death Untold, The Coup against Allende, 9/11/1973, and screening clips from Tomás Gutiérrez Alea’s, Memories of Underdevelopment (Memorias del Subdesarrollo) (Cuba, 1968) and Patricio Guzmán’s documentary, Battle of Chile (La Batalla de Chile) (Cuba, 1975, 1976, 1979), he weaved a layered narrative of the human potential for change. These important political films engage with the portrayal of what he termed the ‘discourse of anxiety’ and the ‘discourse of tenacity and courage’ in relation to people’s belief in the possibilities of social transformation and their ability to fight for freedom. These films are also tributes as well as memorials to those who have struggled for real social and political change.

The event was the result of a collaboration between Birkbeck, the University of Galway and Middlesex University and was supported by Open Society Foundations. The organisers hope to run this event in conjunction with the Human Rights Watch Film Festival again next year at Birkbeck.

The podcasts of this event are available on the School of Arts website.

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