Andrea Coomber, director of JUSTICE, the UK all-party law reform and human rights organisation, talks judicial reform and human rights with Ellie Olcott and former editor-in-chief of the Globalist, Margot Speed. This interview was conducted in spring 2017.
Margot: We’d like to talk to you both about JUSTICE and your work there, but also about human rights; your work in that area of law and its functioning in the world. Could you tell us a bit first about JUSTICE?
Andrea: JUSTICE has been around since 1957. It was set up by Hartley Shawcross who was the UK prosecutor at the Nuremberg trials, together with a group of likeminded lawyers who were concerned about the fair administration of justice. I’m the fifth director in sixty years. Our work is primarily focused on bringing greater accessibility to the justice system through changing it – over the years we’ve recommended very many reforms of the justice system. Lots of structures within the justice system over time have been on the basis of JUSTICE recommendations; the Criminal Cases Review Commission, the Judicial Appointments Commission, the Ministry of Justice itself, and the Crown Prosecution Service were all recommended by JUSTICE. This is because we draw on the expertise and insights of our members, who tend to be a cross-section of the legal community.
We’re explicitly cross-party, so we have Baroness Kennedy of the Shaws QC as our President, Dominic Grieve MP QC and Baroness Sarah Ludford as our Vice-Presidents, and members from other parties including the SNP on our overarching structure. This allows us to get more leverage for our work in Westminster. At the moment we’re concerned about accessibility to the justice system: the fact that the system, particularly the civil justice system, is ridiculously expensive, inaccessible and unintelligible to normal people. It’s completely out of sync with an internet society – you still have people having to turn up to court with enormous bundles of paper. It’s still a system that a judge sixty years ago would recognise, and that’s pretty ridiculous.
Ellie: You’ve told us a bit about the relationship between JUSTICE and Westminster. In the media recently there have been reports portraying the judges and the justice system as “enemies of the people”. Some people have alleged that this is ‘bad’ for democracy, but as someone speaking from within the legal profession what is your view on that kind of trend?
Andrea: I’m not sure the extent to which it’s a trend. The Daily Mail rolled back on that pronouncement when the Supreme Court judgement came out (with pictures of the three dissenting judges as ‘friends’ of the people!). But it is concerning, and the concern is not only that they were being abused, rather than criticised by the media, but that the Lord Chancellor didn’t stick up for them swiftly. This was complicated by the fact that there were a lot of questions raised initially around her appointment. For the third time in a row the Lord Chancellor is not a lawyer, which is an amendment that came through with the Constitutional Reform Act (2005), a Labour Government initiative. I think that the criticism of her appointment was all the more strident because Liz Truss is a youngish woman. In terms of the Enemies of the People, I think that everyone would have liked to have seen a more robust swift response. The judges find themselves in a very difficult position; they’re fiercely independent and their job includes holding the government to account. Ironically in this case the judgment supported parliamentary sovereignty which apparently was a motivator for the Brexit decision in the first place. And the context is important too. A recent Judicial Attitudes Survey came out a few weeks ago revealing low levels of morale within the judiciary – high numbers of judges expecting to leave early, I think nearly 50% of the Court of Appeal judges are planning on retiring early in the next five years, and similar rates in the High Court and Circuit Bench. Already we have a recruitment crisis in the judiciary, and something like only 43% of judges feel supported by the public.
Ellie: Do you think there is misinformation and misunderstanding among the public about the role of the judiciary?
Andrea: There may be – it’s difficult for me to comment because I know them and we work so closely with them but there may well be those public perceptions. Undoubtedly some of this comes down to their demographic makeup. Until relatively recently our judges were appointed by a tap on the shoulder from the Lord Chancellor. For the last 11 years we’ve had a Judicial Appointments Commission, which runs all the recruitment processes up to the High Court and has a limited role in others. Undoubtedly the Judicial Appointments Commission has strengthened the process in terms of transparency and openness – it’s no longer a question of who you know to secure an appointment. But the change in process hasn’t wildly resulted in a change in profile. JUSTICE has done a big piece of work on judicial diversity. We’re in a situation at the moment where we have 12 Supreme Court Justices, and all of them bar Lady Hale are men. They’re all white, and they have always been white, and in fact always have been men except for Lady Hale. Since she took up her seat in what became the Supreme Court there have been 15 appointments, all of them of white men. It’s hard to imagine that there hasn’t been a single other non-white, non-male person who wouldn’t be suitable for appointment to the Court in that time.
Margot: Do you think that the work that you do, for example in terms of this diversity report, should maybe be looked at by some kind of internal mechanism within the government itself?
Andrea: I mean for one thing we don’t want the government picking who the Supreme Court justices are!
Margot: Of course – but in terms of reform of the process.
Andrea: Part of the problem that we have is that responsibilities are diffuse; so the Judicial Appointments Commission has some responsibility, so the way the appointments process works is that a panel created by the Judicial Appointments Commission will decide on the preferred candidate and that candidate will then go to the Lord Chancellor. She has three options: she can accept them, she can reject them with reasons (in which case they’re not to put them to her again), or she can ask the panel to reconsider in which case they can put them to her again until she rejects them the second time round. So there is also a role for the Lord Chancellor – but it’s late and limited in the process. And I think everybody would feel pretty uncomfortable about it being anything more than that, simply because a big part of the judiciary’s role is to keep the state in check, and frankly they’re not doing their job unless the government is gets unhappy with them from time to time. But the diversity problem is very serious.
Ellie: Do you think it has a bearing on the kind of judgements that the judges make?
Andrea: Well we don’t have the kind of research done in this country for that, simply because we don’t have the diversity of the judges to show that there’s a difference in judgement. But all of the theory on diversity and inclusion suggests that the more different views you can bring to any kind of decision making process, and ultimately a panel of the Supreme Court is a decision making process, the better. And it’s not just about gender or race it’s also about social mobility – very high percentages, three quarters of our judges came from Oxford or Cambridge, which are obviously only two universities in a country of considerably more. There are similar rates of private school education. Some of that obviously depends on education policy. Our education policy today will to some extent determined the mix of the Bench in thirty years’ time, as does the ability of people to enter the profession which is I think becoming more and more difficult because there are fewer jobs for lawyers. We have a massive oversupply of law students and people qualifying, and yet very few jobs for them.
But, it will make a difference on quality and on fairness in terms of people having a sense that they’re pushing for equality of opportunity, and I think it’s pretty clear that that isn’t there at the moment. And also it’s important for legitimacy. Across the High Court of 108, the Court of Appeal of 38 and the Supreme Court of 12, we have two judges who aren’t white. And in multicultural Britain that’s pretty outrageous. It’s far from reflective, and if you go down to the Crown Court bench, which is where people are being sentenced to custodial sentences, and where a lot of people, particularly in a city like London, are black, invariably the judges are white. There just isn’t the diversity of Silks. There are a couple of black judges, but it is literally only a handful. And that’s a problem for legitimacy and public confidence.
Margot: Moving on to some of the things you’ve worked on in your own legal career, particularly in Eastern Europe and Africa, a lot of the things you worked on were very gendered issues. How do you work on such cases and push for reform when those societies themselves are resistant to it in an entrenched way, and are often more sexist than the kinds of backgrounds we come from?
Andrea: With difficulty. I worked on women in prison when I was in India, the organisation was a civil and political rights organisation so the only gendered things I did were on women in prison, which was terrible. Women’s prisons are always worse than men’s prisons absolutely everywhere- because there aren’t many women prisoners. When you have a lot of prisoners you can have economies of scale whereas women prisoners tend to be thrown aside, and often have no education, no activities. They’re often forced to serve sentences further away from their families so they’re more isolated, and I think that’s true across the board.
In Eastern Europe and in Africa the problems are different. In Eastern Europe, certainly when I started doing the work in the early 2000s, the problem was primarily that because they’d been communist countries, and under communism supposedly everyone is equal, there was this sense that actually women had nothing to worry about. I’d go to speaking events and training for lawyers and they’d be wearing t-shirts saying ‘This is what a feminist looks like’- it was really 1960s and 1970s Western stuff, because it was supposedly a radical thing to be doing women’s work in Eastern Europe at that time. It’s become a little less so.
It’s difficult because you need to get the decision-makers on board and invariably they’re men, so that requires just endless amounts of lobbying, so in the end we litigated lots of cases to get judgments of courts in order to put pressure on government. I worked on a big abortion case against Poland (Tysiąc vs Poland). My client was a woman with sight problems, who already had two children, and she was told when she was pregnant with her second child that if she went to term with another baby then she would go completely blind (it was a retinal hemorrhaging problem through natural birth). She fell pregnant, and went to a gynaecologist who said, yes, she could have a termination, which was legal under Polish law in the case of maternal mortality, harm to the mother or harm to the fetus. And so she was legally allowed to have it. She got the referral to have the termination, but when she turned up to the gynaecologist with it he tore it up, and refused to perform the procedure. She couldn’t get back into the system, and the problem with abortion cases obviously is that time ticks on, and there was no review mechanism. There was no way that she could get the decision appealed. She ended up going to term and, having had her daughter, became the blind mother of three.
We took the case to the European Court to be able to put pressure on the Polish government to at least set up a mechanism. We emphasised the whole way through that it wasn’t actually a case about abortion, it was a case about access to justice. It was a rule of law issue- because she hadn’t done anything wrong and was perfectly entitled. What was interesting was that when I started working on the case in 2003, we couldn’t find a single partner in Poland or any lawyers who would be prepared to put their name to an abortion case before the European Court (I ended up having to use an old Polish intern of mine). By the time the case was communicated, which was six years on, the politics of abortion in Poland had changed such that all of a sudden lawyers and professors of law started appearing out of the woodwork, women’s rights groups started producing them- but where were they five years before? And in the end they did use our client, Alicja, to promote the issue. She’d never asked for anonymity before the European Court, and she became, and to some extent she still is, the public face of abortion in Poland, for which she’s suffered personally at times.
In Africa the problems are more complicated, because a lot of the issues are around traditional practises and culture. For a start litigation is a pretty poor tool to deal with anything cultural. We did do some litigation, but a lot of our work was with tribal leaders, trying to get men and the elders of the tribes to be pushing for changes. But you have to be very careful and it’s very difficult being a Western person working on gender issues in Africa. Obviously not in terms of things like trafficking or rape, but on other more culturally-specific issues. For example there’s a practice in many African countries called bride inheritance, where if a man has a wife and he dies, then his wife is inherited by his brother. The problem is, although this is pretty terrible, it happens because women in lots of Africa aren’t allowed to inherit property, so if a man dies, actually the way of making sure his wife has a roof over her head and their children have food on the table, is to make sure somebody inherits her because she’s unable to inherit land.
And so the problems are actually around other things- for bride inheritance the problem at stake is actually that women aren’t allowed to inherit property or land. Once you change that, there’s no reason for the women to be inherited anymore. But there are lots of cultural practises around that that become pretty tricky, and there’s a certain sensitivity when you’re a foreign NGO. We would always work with local communities on things like that. You then have to be very careful about taking a case because you don’t want an adverse judgement. So for a very long time no one had, and we still haven’t taken a gay sex case to the African Commission, because we’re fairly certain if we did then they would rule that prohibition of gay sex is perfectly consistent with the African Charter- which it isn’t if you read the African Charter in the light of international law. But if it was an adverse judgement then that would be a dangerous precedent to set so you don’t take those cases and you hope to God that nobody else does- but you can’t stop other people from litigating.
Ellie: What was the kind of timeframes you were working in during your work for human rights cases such as these?
Andrea: International litigation takes so long. I remember one case, a Bulgarian woman had been raped by two police officers just before her fourteenth birthday and she got judgement (in her favour) when she turned 23. At the time you had to show ‘resistance to rape’ and corroboration of her evidence under Bulgarian law and she couldn’t show that, so they didn’t believe her. Part of the problem is the length of time that everything takes, from submitting the litigation to the hearing, to finally getting a judgement. With the Polish abortion case for instance years would go by and we’d have nothing to report to the client.
Margot: Do you think it’s only a matter of time before the abortion campaigns that we had seen in Poland have an effect in somewhere like Ireland?
Andrea: Well I worked on the A, B and C v Ireland case, which was heard in 2009, but again that case had taken seven years to get to the Strasbourg Court, because we were trying to find the right applicants. Ultimately those decisions will have to be taken by the Irish government, and all the cases of court can do is put pressure on. Litigation is one weapon but it is certainly not the extent of the artillery. For it to work effectively you also need lobbying, journalism, people talking to politicians and also to the other side of the debate as much as with people who agree with you- often I think we do talk too much to people who believe the same things that we believe.
Ellie: So would you be happy to take a case in this instance knowing that you might not win it? What are the differences between that situation and in African jurisdictions?
Andrea: I would. When you’re litigating those kind of cases you have to make a judgement call about where you can’t afford to lose because the backlash would be so bad and the precedent set would be so terrible, or where the situation just requires a number of cases to go, so you can eventually make your way through. I was involved in a number of race discrimination cases at the Strasbourg court, in which Roma boys were getting beaten up and in some cases killed by the Bulgarian police, and the European Court over a number of cases ruled that it was certainly an Article 3 torture violation, but not race discrimination. Eventually a judge said that maybe there was something to it, as the victims always seemed to be Roma boys. Eventually we had a case against the Bulgarian government, where unanimously the court said that they’d heard it too many times, and that what was happening was actually also an article 14 discrimination violation, and that the boys were getting beaten up because they were Roma. It took seven years of cases to get them to that point. At no stage was there going to be a terrible backlash for us to lose, as in those cases the boys were already dead or had already suffered, but other violations were being found.
I was also involved in a case against Turkey (Opuz vs Turkey) where we intervened in a terrible domestic violence case. The Turkish authorities had failed to respond to a woman who had repeatedly been badly abused by her husband and his father, and in the end her mother was helping her move to run away from him – this was after a number of police reports, he’d tried to stab her, he’d tried to run her over, he’d tried to electrocute her, and she’d reported it a lot. Sometimes she withdrew the reports, as he was the father of her children and she was intimidated, but often she didn’t. The police knew he was a dangerous person. While her mother was helping her move he pulled over in a taxi in front of the removal van and shot her mother in the head. She immediately took the case to the European Court as she didn’t have remedy domestically, and as a third party intervener we wanted to show what the obligations of the state were when it came to domestic violence. We wanted to show that it was such a pattern of domestic violence, that there was so much overwhelming evidence for complete inactivity on the part of the police, courts, and prosecutors, and that they were therefore complicit, and that it was therefore discrimination. It was unusual because as an intervener we were allowed to appear, and so I spoke at the hearing, and I addressed the whole thing to the Swedish judge, stressing the point that it was a terrible violation of women’s rights. They’d never found domestic violence to be a violation of the discrimination provision before, they’d never come close, but I thought she would dissent. In the end we got a unanimous decision from them on it in our favour. I thought that situation would be one in which we’d just have to take a lot of cases in order to persuade them over time. What was interesting was that the Turkish lawyer said that they had all of these protections in place; injunctions and protection orders and the like and therefore the state had done what it had needed to do. But the Swedish judge in the questions said, ‘I’d just like to know how, if you have all these provisions, how is it that this woman ended up getting killed?’
And that was the basic point – these protections are illusory if they’re not actually implemented.
Again this case was an example of how long things can take – the man was released from Turkish prison before the case was heard in Strasbourg. They thought he was subject to mitigating circumstances such as that he was protecting his family’s honour. Honour killings are something that I completely reject – it’s just a way of justifying killing women. But the case was a step forward, the decision was adopted in the Inter-American court in a separate case a year later.
Ellie: Do you think decisions on women’s rights in one specific country in cases such as this have a positive effect for women’s rights and human rights more globally?
Andrea: Well it does because for a start it gives more legal substance to people who want to make those arguments in other courts. So we then had lawyers in Botswana, in jurisdictions in East Africa, saying they wanted to make those arguments. The judgment of the case was referred to in the elaboration of the Istanbul Convention on Women’s Rights at the Council of Europe, which explicitly had this protection that had been provided by the court in the text of the treaty, and which now has very wide ratification. In that case it was a question of good timing, because the Istanbul decision was being elaborated, so it gave them the ability to put it in. But it was the first time that the argument had been made before the European Court.
Margot: So obviously attitudes to issues such as these change and hopefully advance over time, but we wanted to think about how they might develop in the future. There’s a school of thought at the moment that sees human rights as potentially “under threat”, as countries turn inward and strains of nationalism take hold.
Andrea: Human rights have certainly been internationalised, there’s no doubt- but it was a thousand years ago that torture was first prohibited. Human rights have always been indigenous to most societies; where you draw the lines has changed from society to society but certainly many rights have been universally recognised. Since we’ve had the international human rights legal system that’s increased and there’s no doubt been a proliferation of standards, and they have become internationalised. But I think even as states turn inward, there’s still globalised communication, globalised media, contracts, interdependence of relationships and these aren’t, I don’t think, going to go away. And so we can withdraw from the European Convention on Human Rights, but we can’t withdraw from UN human rights standards, that’s not going to happen. Very much of that is now part of customary international law, for instance the Convention on the Rights of the Child has been ratified by every country bar two- Somalia and the United States.
Ellie: So are you concerned about Brexit, and what it might mean for human rights in Britain?
Andrea: Of course I’m concerned about Brexit; but for human rights in Britain, the danger is not so much about Brexit, it’s about internal politics. All of the challenges to our human rights framework have been about frankly internal politics, rather than anything to do with the system itself. For example the manifesto commitment to repeal the Human Rights Act. This was put into the Conservative manifesto at a time when there was no indication at all that the Conservatives would win a majority, it was expected that that would be something that would be traded off with the Liberal Democrats in coalition negotiations. Now that’s politics – that’s nothing to do with human rights. Human rights always get a battering – Labour governments as well as the Tory government had talked about repealing the Human Rights Act.
Ellie: What about in America?
Andrea: I can’t really speak for America. It holds itself out in some ways as being a human rights champion, but it still recruits juveniles into its army and executes people with mental health problems. There are massive double standards around its reputation – it has ratified very few international treaties, for example, there have always been questions around America’s commitment. But at the same time most Americans would think that people should be treated equally and not discriminated against- though it’s obviously a country divided, in a way that’s pretty fundamental.
Margot: And what about your own home country, Australia, how does it reconcile its human rights reputation with its immigration system and detention centres?
Andrea: So Australia outsources its asylum seekers and puts them on small islands with weak human rights protections – it is of course an absolute disgrace. It’s only getting away with it because there’s no international human rights police and Australia is not subject to a regional arrangement – although it does have a huge amount of pressure put on it.
Margot: Do you think it’s only a matter of time before this pressure has an effect?
Andrea: Well at the moment the system enjoys bipartisan support through major parties, so it’s hard to see it changing anytime soon. I have to say I don’t understand it at all, because it’s actually a very hard country to get to if you’re an asylum seeker – the UK has a much more permeable border with Europe for example, or indeed anywhere in the world. Where I am from, Perth, is actually the most isolated city in the world, and yet a lot of people are terrified that we’re being overrun by asylum seekers and we literally put them in detention camps, for what can be years.
Ellie: Where is the pressure coming from to change the system?
Andrea: There isn’t really any domestically, what pressure there is comes from the Green Party. Australia in many other ways is not a terrible place for human rights, provided you’re not aboriginal, or gay, because you can’t get married. It’s a country that doesn’t have a bill of rights for example, a couple of the states do but federally Australia doesn’t. There’s a sense that the country gives everyone a fair go and is egalitarian- in a way that I think is probably a myth. It’s much harder to be a human rights lawyer in Australia because you’re not dealing, as you are here and in many other places, with a regional human rights system. It could potentially be party to any Asian system but one suspect that that would be lowest common denominator if it were to come into existence.
It’s also hard to imagine an organisation like JUSTICE, that has bipartisan political support, in Australia. In one morning I can have meetings with a Labour peer, a Tory MP, a Labour MP, and they will all know I’m talking to the others and it’s fine. To be fair I probably wouldn’t be able to see that happening anywhere else, because JUSTICE was a function of its time. I think if you sat down and said you wanted to set up an organisation with cross-party engagement and strong relationships with the judiciary nowadays people would say that you were crazy. It’s only that it’s been working successfully for 60 years and has strong confidence and trust from across politicians and the judiciary that it works.