Archive for the ‘Law’ Category

Why the throat?

June 20, 2014 1 comment

I try not to join in twitterstorms, but the one about Michael Fabricant MP’s threat to punch a woman in the throat does bring with it an interesting question.

Why the throat?  Why not the more common concept of a punch to the face or the nose?

Domestic violence-focused literature more than hints at a possible reason: this study finds that 68% in the  ( fairly small) sample of women who suffered domestic violence have suffered from strangulation, and here’s one showing that violent death by strangulation is 6 times more likely for women than men.

The Fabricant tweet may reflect less sudden rage, and more a desire to subjugate, control and make defenceless, and be specific to women.  That’s what makes the tweet more disturbing.

Now, I’m not suggesting that Fabricant is someone prone to violence against women, and of course punching is not strangling..   But I am suggesting that, as part of his making amends as best as he can, he might want to explore why he wanted to go for the throat, and make that exploration public.  That might be a useful service.




Categories: Gender Politics, Law

The EU-USA free trade agreement leak and the threat to the NHS

The leak from the #ttip EU-USA Free Trade Agreement Talks is interesting, as far as the destruction of the NHS is concerned.

This (at p.23 of the pdf file) is the end of May position of the EU negotiation team:

The EU reserves the right to maintain any measure with regard to the provision of all health services which receive public funding or state support  in any form, and are therefore not considered to be privately funded (CPC 931, except for CPC 9312 Medical and Dental Services and part of 93191 relating to Midwifery Services and Services provided by Nurses, Psychotherapeutic and Para-medical services).

The numbering is that of the UN statistical division, and CPC931 is the overall Human Health Services classification, within which medical & dental and midwifery, nursing & the other services fit.

So it looks like that the current EU negotiation position is, by NOT “reserving the right” over these services, to open them to competitive tendering in a way which far outstrips the current Health and Social Care Act 2012 “any qualified provider” provisions.

It looks like the fears may be well-placed.







Categories: Law

Law breaking for legitimacy: the thin end of the euro-wedge

It’s beginning to look like Jean-Claude Juncker will not become President of the European Commission after all.  Paul Mason from the left seems pleased, and Ambrose Evans-Pritchard from the sane wing of conservatism will not, I think, be shedding any tears.

But Jurgen Habermas has a different view, worth listening to.  He thinks that leaders of member states coming together to block Juncker’s election as Commission President by the European Parliament is very bad news indeed.

On the whole, I agree.

This is not because I think Juncker will be a good President – on this I agree with Mason and Evans-Pritchard that he is a  member of a self-serving elite devoted to a massively counterproductive continuation of austerity.

It’s because I don’t like the idea of state leaders thinking they can ignore the rule of law as a means of bolstering their political fortunes.

Let’s be clear what’s going on here.

If a Juncker Presidency is not recommended to the European Parliament by the heads of state at the forthcoming European Council, then these heads of state will have deliberately and knowingly breached article 17 (7) of the Treaty of European Union [1], which requires that the European Council takes into account the results of the European elections.  They may be able to talk their way round it if Junker decides, as seems likely, to withdraw his candidature before the European Council as a way to save face, but this will only be a technicality.

The Spitzenkandidat process – whereby the main European parliamentary grouping have selected their preferred candidates (Juncker for the EPP, Schulz for the SPD) as their part of the implementation of the treay – has been very clear for many months now, and it is only at this very late stage that national governments have started to suggest that “taking account” of the election results, in which the EPP gained the upper hand, might involve simply discounting them in favour of ‘candidates’ who have been nowhere near the process to date.

Moreover, there is a legal mechanism within the Treaty of the Functioning of the EU (article 234) for the European Parliament to make the President and his Commission resign should they lose the confidence of the Parliament,  meaning that national governments could work with others in their political groupings to put an end to a Juncker presidency if he turned out to be the disaster they’ve suddenly worked out he might be.  Indeed, They could even persuade enough MEPs to vote against Juncker after the European Council itself has proposed him – a bit odd-looking, but perfectly legal.

But that route has been ignored in favour of a bigger states vs. European Parliament powerplay, which prefers simply to ignore the rule of law in this case. (In Cameron’s detail-lite case, he possibly simply doesn’t know, just as he probably didn’t know that by taking the Tories out of the EPP, he removed himself from any influence on which Spitzenkandidat the EPP went for at its Dublin meeting in March).

What this likely breach of law is really all about is the panic of members states at the rise of the populist anti-EU right in the recent EU parliamentary elections.   Cameron, and now it seems Merkel (I reserve judgment on Renzi) are desperate to show that they are on the side of ‘their’ peoples, and thereby bolster their own legitimacy as democratic representatives.  But breaking the law is not a good way to do that.

Of course law shouldn’t be set in stone, and Habermas is very clear [3] that there needs to be a healthy tension between legality and legitimacy, with a space for forms of civil disobedience in cases where the law loses legitimacy, in a way which creates a process for the renewal and relegitimation of law . But this is the preserve of civil society, not the existing elite.  If demonstrations erupt against a Juncker presidency, linked to a wider movement against austerity, then the European Council might have a legitimate part to play in meeting the expressed will of the people, and reforming the treaties as appropriate (though as  noted, the scope for the Council to dismiss the Commission creates a legal route to meet that will anyway).*   For national elites to seek their own legitimacy in the eyes of their people by ignoring international law  is the thin end of a very big wedge.

If the anti-Juncker plan is carried through by Merkel, Cameron and others, I do hope the European Parliament will stand its ground and vote against their recommendation for President, wohever that may be, as an act of principle.  Sadly, I can’t see it happening.

Shame the Labour party stopped me being an MEP.  I’d have stood with Jurgen for a socialist AND democratic Europe.


[1] Article 17 (7) of the Treaty of European Union reads:

Taking into account the elections to the European Parliament and after having held the appropriate consultations, the European Council, acting by a qualified majority, shall propose to the European Parliament a candidate for President of the Commission. This candidate shall be elected by the European Parliament by a majority of its component members. If he does not obtain the required majority, the European Council, acting by a qualified majority, shall within one month propose a new candidate who shall be elected by the European Parliament following the same procedure.

[2] Article 234 of the Treaty on the Functioning of the European Union reads:

If a motion of censure on the activities of the Commission is tabled before it, the European Parliament shall not vote thereon until at least three days after the motion has been tabled and only by open vote.

If the motion of censure is carried by a two-thirds majority of the votes cast, representing a majority of the component Members of the European Parliament, the members of the Commission shall resign as a body and the High Representative of the Union for Foreign Affairs and Security Policy shall resign from duties that he or she carries out in the Commission. They shall remain in office and continue to deal with current business until they are replaced in accordance with Article 17 of the Treaty on European Union. In this case, the term of office of the members of the Commission appointed to replace them shall expire on the date on which the term of office of the members of the Commission obliged to resign as a body would have expired.


[3] Its interesting to see Habermas, in his interview with the Allgemeine Zeitung, positively welcome the rise of the populist vote in the European elections as a shock to the governing elite:

Der Rechtspopulismus erzwingt die Umstellung vom bisherigen Elitemodus auf die Beteiligung der Bürger.  Das kann dem europäischen Parlament und seinem Einfluss auf die europäische Gesetzgebung nur guttun

[Rightwing populism requires the adjustment of hitherto elite modes of governance toward citizen participation.  That can only be a good thing for rhe Europen Parliament and its influence on European lawmaking]


For further reading, see Bruce Miller’s useful post, including some useful translation of Habermas and others, and more generally Matthew G Specter’s Habermas: An intellectual biography, kindly sent my way by Chris Brooke.


Why is the left not outraged at plans to send nurses to prison?

November 17, 2013 3 comments

You might think the government’s plans for new legislation, allowing workers to be sent to prison as a cover for the failures of management, would bring some kind of outraged reaction from the left.  Yet two days on from the gleeful announcement that doctors and nurses may end up in Wormwood Scrubs, there’s been no such reaction.

Why’s that, then?

As Chris at Stumbling and Mumbling has repeatedly set out over the years, one of the enduring myths of modern capitalism is the efficacy of managerialism.   Here, that myth is taken one stage further.  Instead of an acknowledgment that the rise in very poor care in the NHS correlates closely to the rise of managerialism in the last 30 years* (and the corresponding decline in standards once maintained by professional ethic), we get a scapegoating of the workforce: the message that, because even strict quality managerial targets have not always been met, then management has no option but to go one step further, and invoke the law.

The alternative – admitting that doctors and nurses might be better than manager at maintaining standards if given the scope to do so** – is no longer even mentioned, not even by the professional bodies and unions themselves.

The efficacy of management was no. 1 on Chris’s recent  ‘top 10 lazy assumptions’ list.  No 2 was, with just cause, the “denigration of professional standards and ethics”.  Quite right.  My only quibble is that they, apparently, no longer need denigrating – even those who hold them dear no longer seem to thing they’re relevant to the debate.

Now that’s ideology.


* None of this should be taken as a way of excusing staff from personal responsibility for crime, I hasten to add.    Portaying explanation and exploration as excuse-making is a favourite hobby of the rightwing press, but as I set out here it’s perfectly possible to excplore what’s gone wrong in the system without offering excuses for those who’ve used the inadequacies of that system to sate their lust for power and abuse.

** Or more properly, if it takes the scope for itself.  The potential for that is something I’m exploring locally through my elected governorship of an NHS Foundation Trust, on which more soon.

Categories: General Politics, Law

Letter to Merseyside Police about Knowsley Housing Trust

November 9, 2013 1 comment

Today’s I’ve written, on the basis that someone had to do so, to the Chief Constable Merseyside Police (hyperlinks added for info), about Knowsley Housing Trust’s letter to tenants threatened with eviction and now, arguably, with the removal of their children.  I understand that this is not the only letter of its type going out from housing bodies.

Dear Chief Constable

Letter by Knowsley Housing Trust: Administration of Justice Act 1970

I enclose for your review and possible investigation a copy of a standard letter from the Income Manager  at Knowsley Housing Trust, which I understand to have been sent recently to several of the Trust’s tenants.

I seek your review because I believe the sending of the letter may have constituted an offence under the Administration of Justice Act 1970 Section 40, para (1) & (1) (a), which states that:

A person commits an offence if, with the object of coercing another person to pay money claimed from the other as a debt due under a contract, he…..harasses the other with demands for payment which, in respect of their frequency or the manner or occasion of making any such demand, or of any threat or publicity by which any demand is accompanied, are calculated to subject him or members of his family or household to alarm, distress or humiliation.

In addition, paragraph 2 of Section 40 states that:

A person may be guilty of an offence by virtue of subsection (1)(a) above if he concerts with others in the taking of such action as is described in that paragraph, notwithstanding that his own course of conduct does not by itself amount to harassment.

It is my lay view that the contents of the final paragraph of the letter may have been “calculated” to cause just such alarm or distress, in order to exact payment of rent arrears. People receiving the standard letter may, from the wording, have been extremely concerned, to the point of alarm or distress, that their children might be removed from them if they become homeless.  This impression would be inextricably linked to non-payment of arrears, and may therefore be construed as a demand for payment accompanied by action calculated by the author of the letter (or others requiring that such a letter be sent) to cause such alarm or distress.

This is not to suggest that Knowsley Housing Trust do not have a duty of referral when a family is at risk of homelessness.  However, the letter makes no reference to the justification for that referral, namely that it is a step taken to ensure that children and families receive the most appropriate support from the local authority during  a difficult family time.  I believe it is a reasonable to expect a professional body to have given consideration to this.

Of course, I understand that it would be a matter for the court to decide the extent to which the letter is “calculated” to cause alarm or distress, but at this stage I would contend that a) there is sufficient evidence to suggest to the Crown Prosecution Service that a prosecution under the Administration of Justice Act 1970 might successfully be brought b) that it is in the public interest to consider prosecution, given the fact that the letter comes from a professional body of whom the public might reasonably expect high standards of conduct

Yours sincerely

Paul Cotterill

Categories: Law

So UNITE and I appear agree on zero hour contracts: which is nice

September 8, 2013 1 comment

A couple of days go I suggested that rather than clamour for legislation to ban zero hour contracts, which I suggested might have unintended negative consequences, the left might better come to the aid of exploited workers by organising:

In the end, Labour might be better off doing the hard yards on the re-unionisation of the labour force – something I’ve argued may be a positive outcome from Miliband’s recent forays, whether or not it’s intended – rather than the easy but narrow legislative victories still redolent of New Labour’s approach to state management**.

Because I brought to bear my own experience as a zero hour contract employer*, I received the fully anticipated colourful abuse, principally from people who had only read as far as Tom Watson’s kind retweet.

So it’s with a certain degree of satisfaction that I see UNITE apparently in full agreement with my position.   In the press release accompanying research conducted on their behalf into the rise in zero hour contracts, UNITE make no call for legislation to outlaw zero hour contracts.  Instead, they call for a sensible package of measures.  Of these, the most important of these (since many of the other protections would follow fro m it is:

A restoration of sector level collective bargaining to stop the ‘race to the bottom’ in ‘vulnerable’ sectors including social care, hospitality, retail, food and logistics.

This is precisely what the unions, and Labour, should be campaigning for/putting in the manifesto.   From effective collective bargaining** follows the potential (though according to Chris only the potential) for wage-led growth as well as direct job security.  And of course wage growth creates its own job security over time, irrespective on contractual niceties.

None of this, I repeat for the hard of thinking, is to defend the abuse of zero hour contracts.  It is simply to suggest that the UNITE leadership has its collective head screwed on, and that the actually understand something about employment.  It’s a shame some in the party are currently keen to suggest otherwise.

* Social enterprise, I’m totally unpaid, sick and holiday pay in contracts, blah blah, I point out for those doubting my ethics/parentage, though that really wasn’t the point of the initial post.

**In the public sector, or private-contracted-by-public sector, this often works best by a two stage process of union to employer pressure, then employers pressuring the government for more resources.   I was involved n the detail as a union steward in the 1980s.

Categories: Labour Party News, Law

On being a zero hours employer

September 6, 2013 4 comments

I employ 8 people on zero hours contracts, and I’m reasonably proud of that fact. Thus, when well-intentioned, influential leftie types like Tom Watson start the rallying call for the total outlawing of what I’ve been doing for about 8 years now, effectively branding my an exploitative bastard, I feel compelled to speak out in my defence.

A little background: I run***, with two fellow Directors though I make a lot of the running, a small social enterprise in the childcare and parenting support field – that is, to the outside it looks like a bog-standard but small nursery/after school club, but what happens in it is more than that because we have a social enterprise mission blah blah.

A few years ago, when I did employee contracts, like most small employers I didn’t reinvent the wheel, but used a template provided by the Pre-School Learning Alliance, effectively our trade body. This was a zero hours template.

And those contracts have worked just fine ever since. As a social enterprise taking on the challenge of addressing “market failure” i.e. providing services at much lower economies of scale than the commercial ‘big boys’ would even consider, we’ve had to shift work patterns over time as demand for our services has changed – to do otherwise would have made us financially unviable. Doing this with zero hour contract has meant that we’ve not needed to engage in formal consultation processes. But it’s also meant that our staff have been able to change their hours to suit their own life and work duties easily and flexibly. It doesn’t always happen entirely smoothly, but there’s goodwill on both sides, and it’s happened in a way which has cut down significantly on cumbersome management processes which actually get in the way of iterations and knock-ons (to other people’s hours) needed to find answers.

My point, though, is wider than one of self-justification for a contract-style now officially reviled by the left. Indeed, in order to avoid any future suspicions about our motives, I’m looking at updating contracts to the “permanent-variable” kind, but this won’t have any effect on the way we actually run things. The wider point is about tools in the right and wrong hands, and the tendency to focus on the tools, not the hands wielding them, in a way which does a disservice in the long run to those the left is supposed to be serving. It’s also, ultimately, about the ineffectiveness of state power when it comes to tackling capital-labour relations.

Take the exploitative bastards down at Sports Direct or McDonalds, for example. Introduce a zero hour contract ban, and before that ban is even through, their human resource people will have found a way round it. This might be the introduction of the one hour contract, alongside an enhanced mechanism for weeding out the ones who won’t comply. It might be something else more creative. But I’m afraid it’s fanciful to think that legislation of the type envisaged will lead to an overall increase in wage packets, even though the use of the zero hour contract has been a handy way to decrease them). But at the same time such legislation would potentially harm a non-profit business like mine, or put paid to some ‘sweat equity’ style businesses in which people without the wherewithal to take actual equity in a small panel beating start-up, for example, are happy to work for their mate Dave on the basis of a zero hours contract alongside some other work, in a way where both parties gain in what is, in human but not contractual terms, a joint enterprise. (Of course this can go wrong – read Roddy Doyle on burger vans for that – but that’s another matter.)

More fundamentally, this focus by the left on its use of legislation, when it happens to be in power, to bring about good things for the workers, can be an active though unconscious hindrance to the “real” job on the left of combatting the power of capital through the more effective tool at our disposal – solidarity (whether that’s in the form of latent/actual labour withdrawal or via co-ops/social enterprise). While it’s an unpopular idea, I still think* it’s reasonable to see the 1998 National Minimum Wage (NMW) as having been detrimental to workers in the long run, though its short term benefits were clear; witness the way in which the NMW has become the standard, not the minimum, in much low paid work.

In the end, Labour might be better off doing the hard yards on the re-unionisation of the labour force – something I’ve argued may be a positive outcome from Miliband’s recent forays, whether or not it’s intended – rather than the easy but narrow legislative victories still redolent of New Labour’s approach to state management**.

* I accept that I’ve never got round to researching the empirical evidence for the counter-factual assertions I made about this in my (correctly contested) 2009 post.

** See also, if you can be arsed, this post of mine at Labourlist on Labour’s currently theory-only aspiration to facilitate “a relational state”, also drawing on my micro-experience.

*** [update note] As I’m receiving a fair bit of personal abuse on twitter for this post, I’ll add that I and the other two directors are entirely unpaid, s set in out in our company constitution as Co Ltd by Guarantee without Shares. I didn’t put it in before as it’s not relevant to issue at hand.


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