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THREAD 3:
We’ve looked a little at the design flaws of the Windrush Compensation Scheme, and will be back to that in future threads, but we’re doing something a little different this time. We Need To Talk About Reparations. [1/32]
We’ve looked a little at the design flaws of the Windrush Compensation Scheme, and will be back to that in future threads, but we’re doing something a little different this time. We Need To Talk About Reparations. [1/32]
We started thinking about this because a few experts pointed out that the approach - heads of compensation with tariff tables - is fundamentally flawed. Tariffs are highly subjective; evidence impossible to gather, then assess; thresholds difficult to parse or meet. [2/32]
Case in point: lost actual employment, which requires evidence of salary lost. If you’ve been out of work for 7 years, like Anthony, the last wage you earned is an arbitrary figure. The Scheme unfairly assumes that’s the most you could have earned in the entire period. [3/32]
Incremental increases, advancement and/or job or career changes mean that it’s rare for a person’s salary to remain flat over that length of time. No provision for this is made for Scheme applicants. (Draw your own conclusions as to why that might be.) [4/32]
Then there’s the abominable ‘Impact on Life’ category. The starting payment under this head is £250, for effects on life that lasted “up to a few weeks”, which is such a ridiculous notion we genuinely didn’t believe we’d read it right. [5/32] https://twitter.com/WindrushLives/status/1287329705360855041?s=20
But the other heads set such impossible thresholds - payslips from 20 years ago, evidence a GP wouldn’t register you, proof you tried to reduce your ‘losses’ (a stunning eg of legal illiteracy) - that Impact on Life may be an applicant’s best shot. [6/32] https://twitter.com/JacquiMckenzie6/status/1289664131725844480?s=20
What do we mean by ‘legal illiteracy’? Very broadly, ‘mitigation’ refers to reasonable things a claimant must do to avoid unfairly racking up extra damages. These are things you would do normally, if ‘the bad thing’ - the reason you need damages at all - hadn’t happened. [7/32]
If the bad thing hadn’t happened, you would have done those reasonable things to avoid incurring losses at all. If you don’t do those things and tot up extra losses now, you’re getting extra credit, because although the bad thing wasn’t your fault, you made it worse. [8/32]
We’re sticking our necks out calling it legally illiterate, but we think the logic of ‘mitigation’ is not only inapplicable, but insulting in this context - a situation the claimants have been dragged into against their will. [9/32]
The requirement for ‘mitigation’, the exacting standards of evidence and stingy tariff tables all suggest that at best, the HO thinks it is repaying claimants for breaking a contract. When in fact, it should be making amends for punching them in the face. [10/32]
Windrush victims don’t need a parsimonious “compensation” scheme that purports to quantify direct losses (and that, only if they pull off the form-filling, evidence-gathering equivalent of the encore at Cirque du Soleil). They deserve reparations. [11/32]
We use the common meaning of the word here, as in the concept of reparations for the slave trade. We acknowledge that the word ‘reparations’ is polarising and emotive, and use it deliberately and for that reason. Because reactions must be equal and opposite to actions. [12/32]
First, we strongly suggest you set aside an hour to read Ta-Nehisi Coates on reparations to Black Americans for cyclical discrimination born of slavery and Jim Crow laws. It heavily influences our thinking here. [13/32] (Paywall, but 1 free a month) https://www.theatlantic.com/magazine/archive/2014/06/the-case-for-reparations/361631/
The starting point is this: what happened here was not a breach of contract, or even remotely analogous to one. It was an abuse of human rights, specifically, Art 15(2) of the Universal Declaration of Human Rights. [14/32] https://www.un.org/en/universal-declaration-human-rights/
Even if one argues the UDHR is not legally binding, therefore doesn’t apply - it is *a* hill to die on, we suppose - the Human Rights Act 2010 and the Equality Act 2006 apply; the clash of the latter with the “hostile environment” is under review. [15/32] https://www.equalityhumanrights.com/en/our-work/news/home-office-actions-affecting-windrush-generation-under-review
Reparations are an academically well established means of redress where a state has violated the rights of individuals; crucially, they are designed to show regret and a commitment to righting past wrongs, over and above compensating direct loss. [16/32] https://www.ictj.org/our-work/transitional-justice-issues/reparations
But, as the ICTJ notes, ‘symbolic reparations’ such as apologies, memorials and commemorations can play a part. The HO has promised written apologies alongside compensation (none received so far), and we *do* now have ‘Windrush Day’. So why are we focussing on the money? [17/32]
This wasn’t a breach of contract. These were violations. We have left the realm of dispassionate, actuarial remedies. The victims cannot be “made good” as if their lives and minds were no more than bushels of spoiled apples. [18/32]
The cornerstone of this endeavour must necessarily be something that punishes the HO, so that it feels and suffers, and importantly, is *seen* to feel and suffer, the consequences of its actions. [19/32]
The HO must fear a tangible consequence if it ever does something like this again - something more real and motivating than merely having to say sorry or throw out some pin money. Only that fear will drive it to fix whatever failings caused this mess in the first place. [20/32]
It is only on that concrete base that symbolic reparations can have any meaning. And to be clear, we think the promised individual apologies absolutely should accompany the payment of financial reparations. [21/32]
How are reparations schemes set up, and how do they work? We admit it’s complex stuff. The ICTJ has a helpful roadmap for designing and implementing reparations schemes, and it’s a short and neat place to start. [22/32] https://www.ictj.org/sites/default/files/ICTJ-Global-Reparations-Practice-2007-English.pdf
For a little more meat, Posner and Vermeule’s 2003 Columbia Law Review article analyses, in the US context, the legal and institutional design challenges of reparations schemes. It’s not easy - but that’s not the point. [23/32] (JSTOR - free when you reg) https://www.jstor.org/stable/1123721
A key aspect of any reparations scheme is directly involving victims in its design. We know this hasn’t happened with claimants to the Windrush Compensation Scheme, most of whom have been making the arguments we have (and much better) for over a year. [24/32]
A 2nd important piece of the process is the general public. The mere act of calling it reparations, not compensation, will force a moment of collective public reckoning. After all, we voted in the governments that committed these atrocities. We are part of this. [25/32]
That is a huge extra obstacle, but that argument has to be won if we have any intention of truly fixing this. It’s simple at its core: private citizens were made stateless as collateral damage in achieving a government target. That destroyed their lives. [26/32]
Accounts of that destruction are strewn across the internet and newspapers. You know the shocking consequences that befell Anthony; we have mentioned numerous others, including Paulette Wilson and @GlendaCaesar. What would you do if it happened to you or yours? [27/32]
You would make noise. You'd tell everyone you knew, and maybe people you didn’t. You might write to your MP. You might, if you had the means, support victims such as Anthony directly in their battles against the HO, or help fund broader efforts. [28/32] https://gf.me/u/yj7cc8
Even the smallest version of these acts makes the case. And it is only by relentlessly, noisily and annoyingly making the case that we can hope to force change. B/c the govt, which is supposed to step in and fix such injustice for private citizens, is the culprit here. [29/32]
This transcends ideology. The HO foisted a dystopian nightmare on the Windrush generation, whatever your views on immigration targets. It happened to fellow legal citizens. We should all be afraid of a govt body that can get away with this without suffering consequences. [30/32]
If we don’t want to live in fear of authorities that work us, we should all be vested in ensuring the HO never contemplates anything like this ever again. Reparations, not compensation. [31/32]
No primary sources, but a few h/ts are in order. We started thinking and reading about this because of comments from @gertrudengozi and @JacquiMckenzie6 ; you should also follow @ppvernon, @GlendaCaesar, and @ameliagentleman. Ta-Nehisi Coates has sadly left Twitter. [32/32]
