Category Archives: Law

Where are the French Human Rights Lawyers?

Brother Ivo was listening to a Conservative MP speaking on the radio who discharged her responsibility towards holding Government to account by challenging the policy not to accept unaccompanied children from the Calais migrant camp known as ” The Jungle”.

Readers may may know that Brother Ivo has advised that such acceptances must not be based upon an arbitrary number but calibrated to the recruitment of suitable foster carers who are properly supported and resourced.

The State is notoriously a bad parent, and the ranks of the homeless, the depressed, the imprisoned, the suicidal and the parents of children taken into care, are disproportionately represented by those who were once children in the care of institutional parents.

Children from war zones who are let down by poorly managed processes will be especially vulnerable to future radicalisation. By all means be generous, but let us recognise that compassion on the cheap will not end well. If it is going to be done. let it be done with competence as well as compassion.

The lady MP  pressing her Government was very persuasive however, especially as she spoke of children being abused daily in the camps and needing to be ” sewn up ” after abuse. That was a “game changing image”.

Who could not be moved to act as the nature of the problem was thus described? Two small words, but  a horrific and unforgettable image imparted.

The Government has shifted under such advocacy: one only hopes that they will heed a Brother Ivo’s warning and do what is necessary to make the policy a long term success and not just a short term sop to the public conscience.

Yet, the description of the lady MP – whose name Brother Ivo regrettably did not catch – raises two important collateral matters.

First, it does impact on the view which ordinary people may have of the adult inhabitants of the Jungle: if this is happening on a nightly basis, why is not the adult population of that camp not taking some responsibility for the war zone young?

We are told that they are talented people who, given the chance, will be net improvers of British society.  Doubtless there will be those who are acting to protect the young, but evidently there are many whose resonse to vulnerability is to exploit it.

“Open borders” is not a policy assisted by such stories.

There is a second implication.

If this is what is so widely and blatantly occurring to the very young, what are the French authorities doing about it? If the French State is protectively absent where is the French outcry?

More specifically, where is the French Human Right lobby and it’s associated lawyers?

French jurisprudence has traditionally been very strong on ” The Rights of Man”. They may have been inspired in this by the English Thomas Paine, but we’ll let that pass.

When Paris terrorist Salah Abdeslam was arrested in Belgium, he was immediately assisted by a lawyer there,  and when he was transferred to France, a French lawyer was promptly engaged. This tradition of leaping to the defence of the unpopular is deeply engaged in the legal/political class of France

The late french Left wing Lawyer Jacques Verges was legendary for his defence of human rights violators from terrorist “Carlos the Jackel” through ” the butcher of Lyons ” Klause Barbie, to the head of the Khmyr Rouge Khieu Samphan. Maitre Verges volunteered to represent each of them. He inspired generations of politically motivated lawyers.

Human Rights lawyers are very good at defending monsters creatively against  perceived threats to their human rights violations, real or imagined .

So where are they, in calling to account the French Government for its failure to protect these unaccompanied children? In England, Social Services would not be allowed to stand idly by such “no go zones” whilst small children are nightly abused; they consider removing children from foster carers who smoke or flirt with voting UKIP.

So what is the story in France?

Advocates of the UK remaining in the EU are currently suggesting that were we to leave, UK Human Rights jurisprudence would grind to a halt. So here is the question-

if European Human Right Jurisprudence is so superior, so activist in defence of Human Rights, so confronting of State injustice – why is it not being deployed to protect the children of “The Jungle”?

 

Does ” Boiling Frog Syndrome” apply to the “Migrant Crisis”

How are we to think clearly about the problems presented to us by migration?

Can we be best directed by our feelings?

Our feelings might be – should be –  instinctively sympathetic for those who have been displaced, but there will be others feeling a fear of the unknown , concerned if an indeterminate number of people with different backgrounds histories and values seek refuge amongst us.

Maybe we are better to bring cold hearted logic to bear if a solution is to be reached with the necessary swiftness?

But is it is a cerebral matter only? Should we try to to work out optimal numbers, calculating our economic costs or gains?  Is that even possible in a plural democracy where there will be many views? It certainly cannot be done quickly. It thus falls to a worried Government to make a decision how to respond quickly to that dreadful picture of a drowned toddler on a beach.

Rarely will a Prime Minister have better understood Harold Macmillan’s summation of the Prime Ministerial nightmare ” Events, dear boy, events”

There will be some who will see the opportunity for political advantage, either to brand the Prime Minister an unfeeling brute or to bolster their argument against the EU. We may try to resist getting sucked too far into those areas if we are true to the mission of trying to reach a practical solution that does not affront our values, but few will succeed. Each and every decision will bleed political consequence into the body politic,

Brother Ivo ‘s abiding sense, as the various dimensions and complexities of the problem unfolds is simple, though not immediately practical. If you or I feel totally comfortable with our position in this dreadful crisis, we are probably not thinking hard enough.

It is a good discipline for us all to go to the position in the debate where we feel least comfortable and ask ourselves ” Where is there merit in this quarter of the discussion?” The more Brother Ivo has turned the issues over in his mind,  the more he has come to appreciate that this is one where most “sides” have a point. This is always the worst kind of dispute to be embroiled in; the worst civil wars occur where there is indeed a degree of merit on both sides.

So today Brother Ivo will challenge the instincts of perhaps  a majority in his Church whose instinct is dismiss fears about migration, and its consequences.

In an attempt to find a way of thinking clearly on the subject, Brother Ivo turned briefly to a rather obscure Harvard academic Wesley Newcombe Hohfeld whose work attempted to encourage a careful definition of concepts for use in legal analysis so that we do not confuse the argument with imprecision. He developed his language tools for use in civil disputes but as will be seen, they may assist in carrying our thinking when discussing immigration and the related Human Rights issues.

In a nutshell, Hohfeld identified that there are always two sides to a legal relationship which he called “correlatives” If one person has a legal right somebody else must have a  corresponding duty. He went further and identified four distinct pairs of necessary relationship,

So we have :-

Right – Duty

Privilege – No Right

Power – disability

Immunity – Liability.

To discuss a matter in Hohfeldian terms, you keep within those language rules; this is especially the case when considering “privilege” which is purely used in an analytical sense and has no class or wealth connotation. If you cannot clear your mind of other preconceptions about these words – stop reading now,

Looking at the migration issue through such a lens we begin to see more clearly where the current problems – and resentments arise.

In Hofeldian terms  British Citizenship  conferred  a “privilege”. If you were born here, nobody had any right to deny it to you. We legislated for others to petition to enjoy that “privilege” , by citizenship application or marriage; the “powers that be” had an absolute discretion to grant or withhold the privilege . Those petitioning were under disability; they might have a right to be considered, and the State might have a duty to consider the application, but it was the State alone which had the arbitrary legal “power”  to reject,  and a failed applicant was under “disability” in terms of challenging the discretion,

Within such a legal environment, the Executive, guided by the Legislature, would have enjoyed uncomplicated discretion in cases such as the present immigration crisis.

Provided the electorate approved, the Government could have been as mean or as generous as it wished with a true sense of control over the problem. The numbers who entered the country and the character thereof was a decision for the UK and above all for its peoples. Those peoples have been historically very welcoming and generous as Kenan Malik has written about here .

Yet we are not in the same age when such generosity was exercised, we are now in the world of the EU, and the Human Rights Act, and that makes a huge difference in terms of how confidently and quickly the Prime Minister feels able to act.

As Nigel Farage constantly points out – perfectly accurately – the Prime Minister is no longer in charge of the borders. The ( Hohfeldian ) “privilege” of the right of residence has been greatly extended, it has certainly been ceed to every person within the European Union – hundreds of millions of people.

Some hundreds of thousands have  already  exercised their “privilege”. We may not be accustomed to using the word in that context but it is le mot juste.

The UK is currently attractive to our EU neighbours because its language is the second language of many, its economy is thriving, it society diverse and welcoming; there is stability and residents enjoy a higher degree of welfare than many in the EU. A welfare claim is also a “legal privilege” – the Government has “no right” to withhold it from anyone within the extended class of those “privileged” in this way. There is the current irony that David Cameron has created more jobs for the French than Francois Holland.

There is currently no lawful mechanism for removing or restricting the privilege currently enjoyed by all EU residents.

Yet that “privilege” in not limited to those born or currently residing within the EU.

As Douglas Carswell  has written, anyone currently admitted by any of the member states to residence, automatically joins the numbers of those with a potential claim on the British State and economy. What he does not add is that any dependants  subsequently passported to residence, via s 8 of the Human Rights Act ” Right to Family Life”, must also be afforded the same status. If a newly arrived resident has a significant family tie. there is a duty to respect it. How many may subsequently claim that right is both unknown and unknowable, so people worry.

The class of those entitled to insist upon the privilege of residence was further extended under both the asylum and refugee conventions of the UN and Article 2 of the Human Rights Convention to anyone from a war zone,

Through those legally enforceable rights, the class of those who are “immune” from British Government control, and can make the British Government and taxpayer “liable” for their welfare is equally unknown and unknowable.

Every person who can reach the UK from a country where an oppressive Government infringes Human Rights has the “right” to claim asylum and the Government has a “duty” to grant it. Legal Aid must be afforded those whom it challenges because the right under dispute is an “absolute” one and access to the Courts must be resourced.

An “asylum seeker” has a well founded fear of his or her own Government. It encompasses persecution by reason of race, religion, nationality, political belief or membership of any political group. Sadly, the numbers of those afflicted is not in short supply,

A refugee is an asylum seeker who has fled his or her homeland through unrest civil war or natural disaster . a useful exploration of the definitions and all too frequent confusions,  by Mr Harry Mitchell QC is to be found here .

It does not take much reflection to appreciate that the class of those who are or maybe entitled to the privilege of UK residence and the ancillary rights and entitlements that go with it is vast. It certainly encompasses not only all 4 million Syrian refugees but also every gay person in Uganda, Pakistan, Iran ( to name but a few), every atheist in a Muslim State  and every woman at risk of sexual violence from Boko Haram or Islamic State. It encompasses many citizens of countries which sit on the UN Human Rights panel which only goes to prove that satire is not dead.

We may want – and choose-  to help every one who arrives; we are a generous people as the response to the single picture of the drowned Syrian child testifies. yet it is rather disingenuous to pretend that those who worry about numbers do not have a point.

That point primarily arises out of the legal context in which these crises arise which makes it different from virtually every other mass movement that preceded it.

When Huguenot, Irish and Jewish and Commonwealth migrations occurred in previous centuries, there was not the same context of enforceable “rights”,” privileges” “immunities” etc – nor indeed was there a welfare State of such attraction to the migrant choosing where to go. There was not the means by which the attractions of the UK were so graphically and instantly available.

This context matters when comparing the current situation with the past. If the Government appears to hesitate before acting, given the enormity of the problem and consequences of getting it wrong, Brother Ivo will be slow to criticise.

In the context of  the General Synod Climate Change debate, much weight was attached to “boiling frog syndrome” : we were told that “by the time you recognise the severity of the problem it is too late to do anything about it”.

One is bound to enquire whether the same principle applies, uncomfortably, in this debate.

The culture, attitudes, values, and institutions  of the United Kingdom have evolved over centuries. Despite many disagreements between us, we have a modus vivendi which many in the world find either attractive or at least convenient to enjoy. It has not proved as easy to replicate in other cultures as enlightened rationalists once assumed it would be.

Our current legal structures mean that we afford equal protection to the scarred woman fleeing an acid attack, the persecuted Christian, the gay African – and many who are in sympathy with the perpetrators of such persecution. We have amongst us those who perpetrated genocide, resisting exclusion because they might face the death penalty. We have advocates of the the values and systems that caused the crises ready to add such diversity to our public life.

We may decide that is a price worth paying, but it is hard to think that the debate about it is not worth having.

At the very least, it may be appropriate to introduce into our public considerations the notion that this current crisis might cause us to reconsider whether our legal structures are fit for the purpose of maintaining Britain as a place of welcome and refuge. Remember the frog.

 

 

 

Legal Aid is vital to avoid transience within communities

Whilst visiting a local church in one of the poorest parishes in the Diocese, Brother Ivo enjoyed a conversation over coffee with a lady who was deeply involved in outreach to her local community.

The Church ran a cafe ensuring a good affordable hot meal on a daily basis in sociable surroundings. They were very supportive of debt counselling but struggling to find enough time and advisors to meet the need. There was good work offered to children and young people. They were perhaps the last stable institution staring in an impoverished areas and they were anxious to stay, and serve the poor the lonely and the outcast.

It is the kind of church which makes one proud to be. Christian.

They had built their presence thanks to the receipt of grants, including good support from the local Diocese, and the Local Council, yet therein lies the problems. All such grants are limited in scope and time. Having built a functioning project for the benefit of the poor, it was threatened by an approaching end to funding streams.

The church remained dedicated and optimistic and were praying for support.

Should they be forced to contract their activities, the church will join a long list of sectors to have withdrawn from the community.

Once, the parish had housed the skilled workers for a large local defence establishment. Decline in the areas began when that facility had been closed, sacrificed to sustain another community in another part of the country. Shops closed, mutual associations and friendly societies were raided by carpet baggers intent on short term profit; pubs disappeared, and with them, local sports and other voluntary organisations all of which ceased to be active. Little by little, the structures of society ebbed away, until only the Church remains.

It is not only the public infrastructure which has departed, so have traditional local families.

That had always been the case in a modest form. As families “got on” they tended to move up the hill to slightly better or bigger houses, and young people moved to other parts of the country after going to university, but this natural turnover became worse and accelerated faster.

When the local economy sunk into depression,  house prices dropped and were bought up by ” buy to let ” landlords. Their client group reflected demographic change. Set in an area close to London the community experienced a squeeze from two directions; from recent European immigrants arriving from the Channel ports, and from others moving out of London as rental costs continue to rise in the capital.

With a ready supply of poorer, socially disadvantaged, often unsophisticated renters available, absentee landlords have no difficulty letting sub-standard properties.  the Local Council has other pressing priorities and are slow to enforce the law. People don’t like living there and move when they can even though the “grass is not greener” in the next property.

It is in this context, that Brother Ivo draws attention to the recently published Theos report arguing that there is a need to restore Legal Aid. You may read the story here – http://www.solicitorsjournal.com/news/legal-profession/legal-aid/legal-aid-side-angels

It is precisely because tenants can no longer enforce the law relating to housing law, because Legal Aid is not available, that the quality of the housing stock has declined. If you cannot enforce rights and standards, your only recourse is to move on – if you can. you have no pride of place, few places of common ground, and frequently no common language or culture with those about you.

It is in transient communities that drug dealing, human trafficking, and many other anti-social activities can flourish.

In the 1990’s,  New York Police Commissioner Bill Bratton pioneered policing methods which transformed first that city then Los Angeles, based upon the premise that dealing with the smaller problems of a local community paid huge dividends with the higher profile concerns. He famously demonstrated that by zero tolerance of petty crime, such as little , broken windows and graffiti, you established a social climate in which the murder rate markedly reduced.

Our Victorian forebears who founded such communities originally put it a different way. “Look after the pence and the pounds will look after themselves.’

The same principle applies with the building of community and Legal Aid has an important place which is easily overlooked in anti-lawyer rhetoric.

Stable community cannot be built out of transience, because so many other social problems flow from it.

This is not a party political issue. The savage cutting of Legal Aid happened under Labour after many years of persistent neglect. The Conservative/Liberal coalition has maintained that policy of deliberately ignoring the enforcement of the law by and on behalf of the poor.

Damage has already been done. Law firms have closed in such areas, as have Community Law Centres. The expertise which had been developed in earlier decades in specialist areas of law has already been lost.

In public finance terms, the savings are small but disproportionately harmful.

Community requires local identification because only if local people are cohesive and care for each other can they have the kind of society in which they demonstrate love for their neighbour by reporting the drug dealer, the violent partner, the neglected child or the exploited immigrant.

We need to identify transience as an important factor in righting these social problems, and whilst it is not popular to speak of the need for Legal Aid we probably cannot address many of the issues driving social exclusion adequately without it.

When Judges and Bishops “rebel”

Sir Nicholas Creighton is not a politician, neither is he a bishop. Brother Ivo does not know if he is a Christian, but as he discharges his duties as a District Judge in the specialist Drug and Alcohol Family Court in London, he demonstrates much that is similar in approach to that of the Anglicans Bishops whose recently published pastoral letter urges a fresh approach upon those about to contest the general election.

If you do not know about Sir Nicholas’ innovative work in resolving intractable family problems you can read about it here. http://www.lawgazette.co.uk/practice/family-drug-and-alcohol-court-breaking-the-habit/5041570.fullarticle

In a nutshell the Court which he has created in a pilot scheme, targets the most complex and intractable of cases where parents have failed their children through misuse of drugs or alcohol.

Many of the parents will have been brought up by neglectful cruel or incompetent parents themselves, so the problems are compounded by emotional issues which would be difficult enough to resolve as stand alone problems, even before substance abuse and inevitable poverty potentiated the difficulties.

These “families” are characterised by lack of routine, multiple relationships, and state dependency, and having been neglected or actively subverted by societal messaging that drug use and single parenthood is perfectly capable of delivering ” good enough” parenting.

Such parents are shocked when State and its agents suddenly turn from being indulgent provider to aggressive accuser, giving such fragile parents just 6 months to turn around the habits of a lifetime,  with the penalty of losing their children forever should they be incapable of pulling themselves up by their bootstraps.

Sir Nicholas identifies the problem succinctly.

“A system that goes on removing children because of drug and alcohol issues, but does nothing about the core problem, is a ‘failing system’, he adds: ‘We know from experience that a mother who has a child removed deliberately goes out to get pregnant again because it is the only way she can heal the wound of the loss.’

They inevitably return , they cannot heal themselves : “if they knew better, they’d do better”.

These are people with tragic lives, often the product of poor decisions – many their own. Whilst we are enjoined not to be judgemental, they have almost invariably failed to follow the very simple basic rules for avoiding poverty, and family chaos.

1) Don’t drop out of school
2) Don’t have children under 21 years
3) Get married before having children
4) Don’t engage in substance abuse

Our societal failure to promulgate these simple basic rules is at the heart of many of tragedies that arrive in the family courts. Our Bishops could help in this regard but rarely do so with clarity.

Sir Nicholas  tired of seeing the pain of families being administered into heartbreaking separation, and of his part in letting it happen. Having seen the value of joined up thinking in the Courts of Santa Barbara California, he started a bold initiative to do things better in London. He convinced Government Departments and Local Authorities to give him enough free rein and funding – “peanuts” – to do things differently,

When Court proceedings are started, parents are brought to him quickly. He sets out a programme in consultation with independent social workers, therapists, child and adult psychiatrists, substance abuse experts and a clinical nurse. He talks plainly, offering failing parents a promise of a fair chance and real support in return for determined engagement and total honesty. If the parents agree, they enter a programme of intensive change, support and regular drug testing.

It is not perfect, it has many failures when even these efforts cannot rescue parents from deep habits and emotional fragility. The project has, however, markedly improved the prospects of success for families staying together- and when this happens the case ends with congratulations and applause for all the hard work – led by the Judge.

So what has this to do with our Bishop’s pastoral letter enjoining politicians to change their modus operandi?

The Judge, like the Bishops, recognised that standing imperiously above the process and passing judgement, was not enough. To achieve what was needed required him to re-define his role. Our Bishops seem of similar mind.

He engages the failing families with direct and refreshing honesty. One might say that he engages them with equality, and refreshing respect: he does not condescend or dissemble. He put the challenge bluntly, offered a hand up, but does not shirk from making a tough decision when the primary interest of the children required it.

He sees that the common good – of the families and the wider community – have a mutual interest in investing time effort and resources  to reverse the cycle of failure, which frequently cascades down through the generations.

He plainly believes that the failed families before him were worth the effort of redemption.

He recognises that the people he has spend years judging have a culture of failure; it is not, as our politically correct friends would have us believe, an equally valid life style choice. Nevertheless he offers them respect though a real choice: nobody can do this  for them, although if they accept the challenge they may succeed. Nothing is guaranteed, nobody can succeed for them, but the specialist Court gives them their best chance.

Neither the Judge, nor the bishops have got it all right. Both are venturing outside of their traditional roles. Both are motivated by a combination of compassion and informed practicality. We should welcome the good that can come out of it, yet this can only happen if we too fully engage with the process.

There is much to approve in the Bishop’s initiative, yet also a strand of paternalism and trust in the benefits State intervention that many find jarring, especially when they look at our own past and the French present.

Sir Nicholas seems to have struck the balance rather better.

Help is offered – but accompanied by realistic expectation.

Personal responsibility is not overlooked.

Bad destructive values are bluntly challenged.

Resources are targeted in a timely manner, but contractually based, and for carefully defined purpose.

There is compassion, but not indulgent sentimentality.

It is a blend of optimism, tempered by real world experience.

With a Judges talent for succinct communication Sir Nicholas can also encapsulate his thinking in considerably less than 52 pages, Our Bishops might do well to learn by this example.

Defending Lord Hope -different times, different understandings

Child abuse is back in the public eye.

Archbishop Justin has been reported in the Daily Telegraph as having broken down in tears at the horror of engaging with yet more stories of child abuse, having immersed himself in the detail of many historic cases and then meeting survivors personally. Brother Ivo is not surprised.

It is possible to inure oneself to such material, indeed it is very necessary for professionals in the field to do so, for otherwise the tasks of analysis could simply not be done. Like trauma paramedics and surgeons, the constant exposure to raw pain and tragedy can have searing affects on those not habituated to it, and those who have to consider these  matters on a daily basis have to  harden their emotional carapaces to survive. Beyond the initial investigating officers, Prosecutors are required by “best practice” to view relevant images. Officers and the lawyers testing such allegations have to ask in detail what happened and press victims for verifiable detail.

To appreciate the difficulty involved, it is worth reminding ourselves that the weeping Archbishop is the same Justin Welby who was brave enough to surrender himself to heavily armed Muslim terrorists in order to negotiate the release of hostages. He did this on more than one occasion. This is not a man who lacks courage, strength of character or self control.

That is the measure of what such stories can do to the strongest of characters, and explains his determination to expose the past wrongdoings. It also shows how hard it is to engage with such matters. It was perhaps even harder in the past when society found it hard to credit such allegations.

We also seem to be having further difficulty finding a suitable person to chair the public inquiry into child abuse at the heart of public life. Having jettisoned Lady Butler-Sloss because her brother was Attorney General at the time, we now have the Commons Committee taking a second look at Fiona Woolfe, the former President of the Law Society and Lord Mayor of London.

She was apparently on dinner party terms with Leon Brittan whose handling of child abuse dossiers during his time as Home Secretary may form part of the Inquiry, and so many  say this makes her an unsuitable choice. Brother Ivo is inclined to the view that anyone with Lady Woolfe’s background who considers herself not to be a part of the establishment must have slightly dubious judgement for that alone. Sometimes we can cannot see the blinding obvious because we do not want to. It may make us wrong, it does not make us evil.

Whilst the Inquiry will be assisted by many other persons of varying expertise, one cannot help thinking that the Chair should be a leading Judge with long direct experience of both the nature of the subject and the way in which this field of the Law evolved.

We have a dilemma. If we choose someone who was working in Child Protection at the time, they may have some connection with some of the people whose judgements are under question, if they are of a later generation they are out of touch with those times.

Child abuse, past and present is poisonous.

The Church of England is currently responding with what may be a wholly understandable over reaction, on the “better to be safe than sorry” principle.

For some years we have required strict checking of all volunteers; that said, Brother Ivo is aware that in some Dioceses there is still significant complacency amongst clergy and delay in undertaking awareness training. It is now a disciplinary offence to allow a visiting preacher into the pulpit even on a single ocassionally without checking their Disclosure and Barring Service status. This is to prevent friends of suspended clergy giving opportunity to be once again the public face of the Church.

Similar hard practice applies in the secular world too, not leasting to best selling authors reading to children in bookstores.. Apparently the author Philip Pulman reacted to such requirements in 2009: ” It is insulting and I think unnecessary, and I refuse to be complicit in any scheme that assumes my guilt.”

That such indignation occurs in modern times, may give some slight insight into the problems which confronted many in much more naive times, not least former Archbishop David Hope.

Many years ago judges, policemen, clergy, Headteachers etc had a very imperfect understanding of sexuality in all its sometimes shocking variety. Their understanding of child abuse was even less

Brother a Ivo’s father had never heard of homosexuality until he joined the services in 1942. Queen Victoria famously caused the exclusion of lesbians from the criminalisation of homosexual behaviour because she simply could not believe that such things happened.

Today’s 10 year olds probably have a greater range of sex education than the bishops and judges of yesteryear, and cunning abusers knew how to play the game of outraged innocence in order to discomfort accusers. It was easy then to pull the wool over eyes that were culturally reluctant to see. It also worked on the simply inadequately prepared. We are called to be as wise a serpents and gentle as doves. Sometimes the wolves play on the gentleness of doves.

Even institutions like the National Council for Civil Liberties allowed the Paedophile Information Exchange to hide in plain sight like Jimmy Savile at the BBC. When intelligent women like Harriet Harman and Esther Rantzen were blind-sided by such people, how can we be surprised at the failures of senior clergy of a very different generation? We may judge them as insufficient to the task -which many were with hindsight and would acknowledge- but we should be slow to go further

In the 1950’s there was less public sexuality. Like Queen Victoria, most could never conceive of a child as the object of sexual desire. Even today, Brother Ivo suspects that many would struggle to “see” the inconceivable.

If you have not confronted it, who could imagine a mother choosing to remain in the same room watching television whilst her boyfriend penetrates her two year old on the dining room table? Who could conceive of her remaining on a relationship with such a man? It is natural not to want to believe such things happen, yet this is the measure of depravity that brings one Archbishop under suspicion of neglect and another to tears.

Of course we must condemn and learn, but before ascribing gross neglect, still less complicity, it is important to remind ourselves that we have built our understanding by learning from much past failure of those lower down the learning curve, and the considerable exploitation of naivity. Victims were manipulated by cunning and wicked perpetrators.

So were some who failed to protect.

No Human Rights without Legal Aid, Mr Khan

Brother Ivo takes his name from the patron saint of lawyers, who was effectivley the first recorded legal aid lawyer; he was certainly famed  for his advocacy on behalf of the poor. It is a cause close to Brother Ivo’s heart, so he accordingly tuned in to listen to listen to Labour Justice spokesman Sadiq Khan with real interest as Mr Khan told the nation about his priorities should he be given the justice brief in a Labour Government.

We heard that Mr Khan’s modest family origins caused him to identify with and  speak up for the poor, and if that be so, good for him. We all ought to applaud those who come through from modest origins, unlike David Cameron, Nick Clegg, and, err .. Ed Milliband, Ed Balls, Harriett Harman, Hilary Benn, and many others on Labour’s top table.

Brother Ivo was himself born during post war austerity, in a council house which his parents were not exactly entitled to occupy, so as boys from the wrong side of the tracks, he and Sadiq ought perhaps to stick together.

Unfortunately that that bonhomie  and fellow feeling did  not last long into his speech.

Sadiq Khan quickly went into attack mode on behalf of the much criticised Human Rights Act, making the common mistake of confusing substance and form. He prayed in aid Sir Winston Churchill,  who, he seemed to suggest, would have leapt to the defence of the HRA against the proposals of some on the right who wish to repeal it.

Brother Ivo is not quite  of the era, but is historically informed enough to know that Britain did not place itself under the authority of the European Court despite having originally defined the concepts of the Human Rights Convention. We, unlike most of Europe, had not fallen under the intellectual sway of either the jurisprudence of Fascism or Marxism . We had our common law to protect us: it had evolved organically over hundreds of years , having been framed and refined by fair minded judges. We did not instantly  join up to the European jurisprudential renewal – because we did not need to.

To have insisted upon British participation would have been an impertinence, rather like asking Sir Chris Hoye to take a cycling proficiency test. Sir Winston would have instinctively known that Britain’s courts did not need to place themselves under Human Rights Principles –  because they embodied them.

So much of Mr Khan’s big point. Yet as he made his case, few in the hall appreciated that he was standing on incredibly thin ice.

As as a proud Human Rights lawyer, Mr Khan has operated within a protected environment. Britain has to fund Human Rights cases, and does so richly if reluctantly. Thus Abu Quatada and his lawyers consumed £1.3m on his 8 year campaign to avoid the justice in his home country. Jordan has just acquitted him.

Is is anybody outside the Human Rights gravy train thinking “So glad we spent the money”?

The prioritising of cases such has Mr Quatada, has come at a cost, largely in the family Courts. It is common knowledge that the priorities which the Human Rights Act accorded to the absolute rights found within Immigration and Asylum Law, broke the old system of Legal Aid. The budget was finite: the new area of law was the cuckoo in the nest which duly began to heave the original offspring out of the nest.

Legal Aid was established as part of the post war Welfare State, and undoubtedly grew enormously under both Labour and Conservative governments. Both moved quickly to make economies when budgetary problems struck.

Labour, and its 3rd sector cheerleaders were very swift to condemn the £200m cuts to the Legal Aid budget, introduced by the Conservatives, and rightly so. Labour is not usually reticent about spending money or promising to reverse ” Tory Cuts”.

Brother Ivo therefore waited to hear Mr Khan announce that such cuts would be reversed. He waited in vain.

Mr Khan it appears is a blowhard. Strong on the rhetoric, weak on the application.

For all the talk of justice, Mr Khan and his party are talking in the abstract. Human Rights without Legal Aid for the poorest members of society, provide but a fig leaf of justice.

Mr Khan chose to avoid owning his policy. An open politician would have explained why he has chosen to retain Chris Graylings priorities having  plainly decided to do nothing to put the flesh on the bones of the rhetoric.

The Abu Quatadas of the world and those representing them will continue to suckle on the taxpayers teat, but ordinary people in, say, Clacton or Heywood and Middleton will continue to be on their own when family problems take them to Court.

Doubtless Mr Khan will next be in the television studios expressing disbelief and incomprehension when UKIP advances thanks to the support of the ordinary voters who have found the Welfare State is not there for them when they need it. Once they thought Labour stood for folks just like them, Mr Khan is teaching them otherwise.

 

 

 

The ” What is truth?” question returns

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One cannot get away from it, and nobody who steps into a pulpit can avoid Pilate’s famous question if they seek to do justice to the text.

Preachers quickly earn that the answer is usually subtle and we often find ourselves refining the question to ” Which of the truths within this text speaks to our circumstances and needs today?”

People of faith are habituated to thinking in this way but sadly the secular world, particularly the political world, is more utilitarian than philosophical in its collective approach to the question.

“How can I tell the truth whilst not compromising myself?”  becomes the subtext of the Special Advisors briefing notes to his or her political master.

Brother Ivo has been brought to ponder the ancient question by a number of recent events, which remind us how much of the Bible is indeed relevant today.

Let him briefly outline them,

On the early morning radio, the BBC Today programme interviewed Professor David Miles of the Bank of England’s Monetary Policy Committee about the recent data on the economy and what it might mean. It was an interesting and intelligent piece, and it seems a pity that it was not on much later when more people would have heard it.

This Committee is charged with giving the best and informed advice to the Chancellor, and as one would hope, the Professor was low key ,scholarly and a good, if not exciting communicator on his complex subject.

Brother Ivo could no help but contrast this careful and nuanced examination of the truth with what usually comes later, when the politicians are asked to interpret the news.

When the greater part of the population – and perhaps one should say “electorate” is listening, one gets the “sound bite” the “talking point ” and the “spin”. Unlike the delivery of Professor Miles, too often one is getting not news or analysis, but party propaganda.

Readers may find Brother Ivo’s criticism of the BBC tiresome but it is well meant and intended to be corrective and constructive. When economic news is in the forefront of programmes, we should be presented with much more of the examination and less of the comment.

A classic example is over the report that “average incomes have fallen”. That is no doubt accurate, but it is not the whole truth. Many people on a regular wage will have received the same in their wage packet this month as any other.

On another programme Professor Art Laffer ( famous for the Laffer curve on tax receipts) explained that  there will be some who are worse off , and some who will doubtless suffer as a result of the economic situation. Yet another commentator pointed out that the ‘fall” is partly arithmetic.

If many people join the work force from lower benefits, they may be better off, but their addition to the workforce, if below the former average, will depress the average whilst comparatively few are actually worse off.

This is not to deny that wages are not keeping up with prices but that is a different, if equally important question which ought to be left for another day.

The point of Brother Ivo’s thought today is that we in the faith Community should bring our openness to subtlety into the everyday world. We ought to challenge the culture of the repetitious part truth – from whatever side it comes, and we should require our broadcasters to be harder on those who come, not to enlighten but to repeat a pre-prepared soundbite.

Brother Ivo flirted with the idea of suggesting that the Broadcasters might flash a “sound bite warning” on our screens whenever the well worn phrases are trotted out or a new one is obviously coined for the purpose of obfuscation.

Another news item illustrated the kind of truth problem we have in public life.

Some may know that there is a serious scandal in the USA arising out of an investigation of the Revenue Service which may have targeted certain political groups. This was one of the charges that brought down President Nixon who also famously ” lost ” 18 minutes of the famous Watergate tapes, which were “accidentally” erased.

In the latest scandal, all the emails of 20 Internal Revenue Services employees, over a two year period, have all “accidentally” been erased in simultaneous but independent hard drive crashes which have mysteriously coincided with the host servers not holding duplicates and none of the employees complying with a Federal law to keep and preserve hard copies of any erased documents.

The Judge investigating this alongside the Congressional Committee recently required an affidavit from the IRS to place on record the events, staff involved , technical explanation, and timeline so that he can begin to piece together the truth.

The document he received was remarked upon as being a masterpiece of what Brother Ivo is currently highlighting. It told the Judge nothing but the truth – but also told him nothing he did not already know; most of it was already in the public domain. We shall see how this plays out.

Here as people of faith we need to be counter cultural.

Whoever we may like or dislike politically, the commitment to hearing truth,  and to promoting integrity in public life is surely the starting point for us. Our political  constitutions have arisen out of much discord – a great deal of it was religious. It was because ultra partisanship resulted in war (and still does across the world)  that we agreed to live together with integrity under plain rules that need adherence if trust is to survive.

A commitment to truth and honest speaking is the sine qua non of a peaceful civil society.

It may not look as if there is a close relationship between the conduct of our politicians and commentators and the chaos in the Middle East and Africa but surely one of the key components of functional democracy is bona fides between opponents.

People of different opinions must be opponents not enemies.

A cynical friend once said to Brother Ivo “Truth is a precious commodity- we must use it sparingly”. That way lies not only perdition  but the political distrust and chaos that blights much of the world.

Christians should be foremost in both living and reminding the world that our “Yea should be Yea, and our Nay, Nay”. At least we shall in that manner, contribute to becoming conveyors and guardians of the truth, however subtle and elusive it may be.

Do we respect Roma culture?

The news that the President of the Family Court has turned down a request by a Roma couple that their children should not be adopted by a gay couple, should come as no surprise. Sir James Munby has a past history of being unsympathetic to the role of religion in the public sphere, so the outcome was probably a foregone conclusion. Nevertheless, Brother Ivo finds it rather sad.

All such cases are sad. Even parents who have neglected their children, are rarely without feeling for them, and often the problems arise out of deep seated problems rather than innate cruelty. When the State intervenes, it should be done with a heavy heart, and it can be done with a degree of respect. The pain of separation is real, and empathy can extend even to those whose actions we condemn.

The couple are Roman Catholic and they did not want their children brought up in a gay household. They advanced their case with reference to their children suffering “emotional harm” in the event of the adoption proceeding. Without seeing the papers one cannot judge if that had any merit at all, yet in today’s politically correct environment such an argument probably did not have even a theoretical chance.

Brother Ivo has enough knowledge of this subject to know that the research evidence is fairly conclusive so far: children brought up in gay relationships have at least as good outcomes as those raised within more traditional structures, if not better. On utilitarian grounds alone, Sir James was entitled to find as he did. Yet the Welfare Checklist enacted in the Children Act also requires Courts to factor in respect for the religious and cultural needs of children; these boys are Roma and Roman Catholic.

However sucessful an adoption, a high percentage of children now exercise their rights to trace their birth family and contact is re-established. That family may be in Romania, and not as PC as Sir James.
It is not fanciful to consider that their future reception may not be as seamless in Romania as in Kent.

Even that, is not the fundamental point for Brother Ivo.

It is good practice, though not universally applied, to engage parents in the choice of future adopters whenever possible. Surprising as it may be, in the agony of giving up a child, some parents can and do contribute to the selection process, it can be the last exercise of parental responsibility, a last gift, and when parents engage actively in it, they are to be commended and respected. It must be unimaginably hard.

Plainly an invitation to engage does not confer a right to delay or obstruct: when children must be placed in new homes, it must be advanced purposefully.

Yet, given the availability of competing potential parents of equal quality, would it really do harm if parents such as these were able to exercise a preference in keeping with their cultural and religious backgrounds?

We are told that the majority of people in this country approve gay relationships. If that is true, and given the statistics of success for gay adoptions, there ought not to be any lack of children who could be placed with the approved and no doubt thoroughly decent gay adopters. It simply seems to Brother Ivo that there is no imperative for them to adopt these children. There is no lack of children in need of secure and dedicated new parents.

Brother Ivo is not basing his disquiet on any anti-gay sentiment: he has had some direct involvement in supporting lovely gay adopters who have done sterling work for needy children. Rather, he would couch his point on common humanity.

We appear so determined to enforce a principle that we abandon human feeling. It would surely not be so very terrible to have allowed the religious and cultural values of this unfortunate couple, losing their children, one last decision.

It need not have been a high profile matter of principle: in the privacy of a social work office, social workers could have heard the parental views, found a way of accommodating their concerns and offered different children to the gay adopters from parents who had no such objections. Would that have been so very terrible?

It is not unprecedented. For many years, families willing and suitable to adopt children of black or asian origin have been outinely rejected for perceived cultural reasons -real or imagined. That policy is being changed for purely pragmatic reasons. There are such a number of ethnic minority children who cannot be placed placed with a closely matched family that something has to give and the politically correct principle is being ditched by political direction from above.

It won’t happen here: the Prime Minister is too invested in the “equality agenda”and
perhaps that is not entirely ignoble.

Yet history teaches us that too strict an attachment to principle can result in injustice and even inhumanity, and even with noble aspirations, ordinary people suffer unnecessarily. Perhaps the Roma community feels that by this decision, it has been shown a lack of respect for its identity and values.

Brother Ivo thought this bothered our metropolitan culture, but plainly he must have imagined it.
Sent from my Ipad
Martin Sewell

The consequences of releasing Mr Downey

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The collapse of the trial of the man accused of the Hyde Park bombing is both serious and potentially dangerous to the stability of Northern Ireland.

Historic wrongs were done on both sides and bringing the communities into greater trust and practical co-operation is an ongoing but fragile process, which unexpected debacles like this do nothing to assist.

The problem operates at multiple levels and yet again we return to a concept that appears to be becoming the theme of Brother Ivo’s blog. In a word “integrity”.

Lord Trimble is a man who was closely involved in the peace negotiations from the loyalist side. He claims that the policy behind the notorious letter allegedly sent in error to Mr John Downey,  indemnifying him against prosecution, was never a part of the political Ulster peace settlement. He is saying that even if it was validly sent by Government, those who authorised it, did so without the knowledge or approval of those representing the loyalist community.

Brother Ivo has no basis to doubt Mr Trimble’s integrity on this account.

It is currently unclear if the letter was intra vires or ultra vires the competency of the Westminster Government and that needs to be clarified early. MP’s must ask searching and careful questions.

Plainly however the letter was sent and had a direct legal effect and political consequence.

The public is entitled to know if this type letter was part of an agreement  and if so, who were the parties to that aspect of agreement. Were those parties limited to the negotiating teams, the Government of the day, the Civil Servants, the Republican negotiators? Specifically, were any stakeholders in the peace process excluded from knowledge of the agreement, and/or the detailed terms thereof?

We know that this was a complex and sensitive negotiation and we still need to to tread carefully. We also need to ensure that we do not blunder into crisis by accident.

If such letters were part of the settlement, then those who received a proper and lawful indemnity should have the promise honoured. It may be uncomfortable, but sometimes historical amnesia is necessary.

Let us remember that despite horrendous behaviour by troops under his command, the Japanese Emperor was given a State visit to these shores in 1971. That was no less offensive to the former war prisoners of the Japanese that the sight of Mr Downey casually strolling away from the Old Bailey.

Yet that that is not an end to the matters.

If a line is drawn to benefit Republicans there can be no justification for loyalist paramilitaries and British Servicemen to be treated differently. Brother Ivo reminds himself that he is talking about crime on all sides; if he is advocating pragmatism it will hurt victims but sometimes one reluctantly chooses to act against formal Justice. If so we must do it openly regretfully and accept the inevitable justified criticism. That is the essence of integrity – taking the consequences for one’s actions.

There is wisdom in the Book of Common Prayer confession of wrongdoing and sin ; ” we should not dissemble nor cloke them before the face of Almighty God our heavenly Father; but confess them with an humble, lowly, penitent, and obedient heart; to the end that we may obtain forgiveness of the same, by his infinite goodness and mercy.”

Let our politicians read mark and inwardly digest before they speak of these things.

Mr Trimble may be right that trying to overturn the Judge’s decision in this case is more trouble than it is worth.  We are a country that respects the rule of law and bad cases do not make good law. Mr Downey may be the unworthy lucky recipient of bad administration or shabby politics. So be it. There is however no reason why everyone in receipt of such a letter needs to profit from it.

The precise nature of that bad administration or political decision should be examined in detail.

Are we talking clerical error, computer glitch, poorly applied judgement or a secret political agreement?

There is no point in debating the problem until the parameters of the problem have been evidenced and made available. Brother Ivo and others fear that there may have been a collusive deal which kept its details from the loyalist negotiators but it would be irresponsible to build a judgement, still less a campaign, upon premature speculation.

It is right to put that concern into the public discussion however, as a marker: that issue needs to be addressed in Government explanations. If our politicians or Civil Servants acted improperly we can and should hold them to account, that is the sine qua non of a functional democracy. It is as offensive for them to go unpunished as it is for an IRA terrorist to avoid a trial of the evidence.

The public mood is mainly directed to the IRA criminals, and there is no reason why the Government cannot and should not redress the problem. It need not break the peace process.

Mr Downey relied upon a well established principle of estoppel. He had received a promise of indemnity and acted to his detriment in reliance of it. Not everyone who received that letter has changed their actions upon such reliance.

The Government can and should write to the other recipients to make clear the error and to advise them not to rely upon that promise. Should the recipient later come before the jurisdiction of our Courts, the onus of proof will lie on the accused to prove a post receipt detriment, and that may not be as easy for them as for Mr Downey.

It is hard to see that Republicans could object to that with any integrity. If it is within the agreement then prove it and it shall be honoured .If it is an error and their people have not acted to their detriment, then the withdrawal will have left them in no worse position.

There has been progress in Ulster. We must not throw the baby out with the bath water but neither do we have to completely affront our sense of Justice by simply letting everyone involved in this sorry story  escape scrutiny.

Wrongdoing should have consequences whether it be by incompetent administrator, devious politician or terrorist murderer.  Mr Downey may be lucky; it is no basis upon which to build a precedent for everyone else involved in this sorry business.

Ms Harman, let me help you – “Being human isn’t easy”.

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As Harriet Harman continues to try to evade a simple admission of past misjudgement, Brother Ivo would like to be be fair and charitable, and so thought it might be worth offering a reminder to anyone commenting on the controversy that sometimes, we can all be a little harsh on our younger selves.

Brother Ivo has made more than his fair share of bad decisions both politically, professionally, and personally and is often comforted by two wise observations. 

Søren Kierkegaard said that  ‘Life can only be understood backwards; but it must be lived forwards.’, and an old friend of Brother Ivo, novelist Adam Zameenzad once counselled him that “Being human isn’t easy”.

Ms Harman might do well to reflect upon these remarks as she looks back across the  years to when she acted as a legal officer to the National Council for Civil Liberties during the time of its injudicious association with the PIE organisation.

One suspects that somewhere within the process of “reputation management” ( a modern contrivance of questionable moral value)  she has had the odd moment of panic tinged with regret as she asked herself ” What on earth was I thinking?”

Admitting it is another problem altogether but confession truly is good for the soul.

We all  judge our  past errors from a position of hindsight  and experience; we know that we were not bad people then, and so we want to deny the very existence of that which plainly troubles us today.

In few fields will this be more challenging than  that of child protection which has its full measure of regretted past opinion. We arrived where we are via that past however, and many of todays good outcomes will have been built upon hard lessons learnt from past stupidity.

Just as doctors once believed that regularly bleeding their patient was always a good thing, police officers once justified “fitting up” a known villain, and teachers caned children who were slow to learn to read, so Child Protection has its own sorry past which we need to acknowledge.

There were many attitudes, excuses and practices that had their place in the Judicial system of the past which make us decidedly uncomfortable today.

“All children lie”.

” She wanted me to do it”

” It was a one-off after my girlfriend left/ I had too much to drink”.

Her mother made her say this because she hates me”.

“She’s jealous of me being her mother’s boyfriend”

These were standard attitudes and excuses routinely offered and accepted 30 years ago when these matters came ( rarely ) to Court.

Children were allowed to be bullied by be-wigged Counsel in open Court.

“Breaking the complainant” was perceived as a fair defence tactic; accusations of mendacious lying for a trivial reward were proffered and because the idea of sexual gratification via an infant was so far removed from the ordinary contemplation of  the average jury member, getting the jury to convict to the requisite standard “beyond reasonable doubt” was very hard indeed.

It still is, especially where well known public figures are concerned. We hate to think the unthinkable – which is how the abuser learns to deceive and builds his repertoire of threat and manipulation. Victims are told ” no one will believe you” and many found/find this to be true.

The sentences for such behaviour were surprisingly low, and the help available virtually non existent. Managing and modifying pedophile behaviour is time and resource consuming. Even today it is not our highest priority, not least because such people are not where we want to spend our money.

Not all the injustices were one way.

We once had the standard format interview which presented  undressed “anatomically correct” dolls to a bored or bemused child, confined in a room with a total stranger. It does not take long before the child fits them together in an “inappropriate”  way ( think Lego) . It took some years before the dangers of such interviewing techniques became appreciated.

Then we had the imported fashion for “Ritual Satanic Abuse” where every Council Estate in the Kingdom was assumed to be an extended set for the Exorcist.

Next there was  was Munchausen By Proxy “syndrome” – until we realised that a syndrome is just a description of facts and behaviours and no illness at all.

In short,  the last thirty years has been a steep learning curve in the child protection field and within that field, a small but highly motivated core of paedophiles has run rings round those trying to catch up with how they truly operate.

For most of us, collecting 10,000 photographs of a favourite actor would be considered mildly eccentric. Collecting half a million images of children being abused, and often brutally tortured, is literally inconceivable. We are talking depravity of the highest order in some of these cases, and for too long we were just too nice to think anyone could want to do such things.

So when Ms Harman’s NCCL was approached by pleasant articulate men who presented themselves as victims for loving a 15 year old boy, it is very easy to see how things went wrong. It was not that long ago that you could be imprisoned for consensual adult gay sex. The under age version was easily presentable as just another arbitrary restriction of a prejudiced State tied to a backwards looking Church view. In radical circles, the traditional was always the enemy even when it was right.

Of course the reality of PIE and its members was much much more depraved; there is a reason we call it the slippery slope, but that is not always appreciated by the advocate of the underdog, who often took such special pleading at face value. Paedophiles routinely play the victim.

Yet anyone who has observed the evolution of child protection at close quarters will know that myriad mistakes and ill judgements occurred over the years until we gradually found our way back to a position that is greatly discordant with the trendy ” if it feels good do it” attitudes of the late 60’s and 70’s.

Child protection experience is a very good way to get a modern head around the concept of original sin. The capacity of humans , male and female, to abuse the innocent  and the vulnerable  for their own gratification knows no bounds. It was however, deeply unfashionable to say that in the days of flower power or radical idealism when Ms Harman was on the side of those shaking off Victorian values.

Brother Ivo hopes that she will look back and be able to acknowledge that she  along with many of us of that era, allowed our idealism, our niceness and even our naivety to cloud our critical faculties. She was not alone in getting it wrong, indeed nobody made all the right calls all of the time in this most difficult of disciplines.

Denis Healey once advised that when you are in a hole – stop digging. This is good advice for Ms Harman.

She should stop digging and face up to the fact that she and everyone else in the field seriously under estimated the nature of the paedophile threat to our children. Unravelling what was going on was really hard and took time. Let’s not waste any time suggesting that anyone understood then what we understand today. We should all look back on how we got these things wrong and be ashamed – not “regretful”-  ashamed.

Brother Ivo is trying to set a good example by identifying some of the common errors into which he knows he and many have fallen.

It is no bad thing to prove that one has learnt by experience. There is shame however in treating others as fools when the historical record of mistake is so clear.

NCCL and its officers got this wrong; Ms Harman should acknowledge the fact and drop the pretence of being wise ahead of her time.

When Counselling those who have done serious wrong, Brother Ivo has occasionally employed his theological background to good effect.

Often those in error seek Justice; he usually advises that they would be better off asking for Mercy.

It is old fashioned, but it’s none the worse for that.

If Ms Harman is honest about the failings of all of us in the past, Brother Ivo will defend her in that integrity, but whilst she maintains the stance of evasion hiding behind the carefully calculated PR language of “regret”  he is unable to do so even as he watches her suffer.