On Friday 18 September, the French Constitutional Council - seized with a priority constitutionality issue - ruled in favour of the descendants of miners abusively dismissed during the strikes of 1948 and 1952. It considered that the distinctions made in the compensation scheme violated the principle of equality, opening the way, more than 70 years after the events, for the French State to compensate their descendants. The next day, the British press reported that the Scottish government might soon grant pardons to miners abusively sanctioned following the 1984 strike.
“Attacks on fundamental rights”
These two decisions are in line with a process started years ago. In France, following the coal miners’ strikes of 1948 and given the heavy penalties imposed on the strikers, there were demands for rehabilitation and reparation. Long limited to political and trade union circles, these demands underwent after 2004 a spectacular development, entering the legal field and being first enshrined by a decision of the Court of Appeal of Versailles in 2011, which recognized the prejudice suffered and the violation of rights. This decision was finally overturned by the Court of Cassation in 2012. But the impact of the first ruling was such that in 2014 - on the initiative of Justice Minister Christiane Taubira - an article was inserted in the finance law which, "recognizing the violations of the fundamental rights of strikers" especially the abusive nature of their dismissal, set up a system of material and symbolic reparations: a lump-sum compensation of €30,000 per miner and €5,000 for each child of these miners; those who had been stripped of their military ranks and distinctions were to be reinstated; and school curricula modified to integrate teaching about the strikes. Its scope was finally extended by the new decision of the Constitutional Council.
On the other side of the Channel, although the miners' strike of 1984 - and the closure since then of almost all the pits - seemed to have been consigned to history, there are calls to revisit this period and shed light on a number of practices. For example, Lisa Nandy, a Labour MP from Wigan (a former mining town in northwest England), questioned Prime Minister David Cameron in parliament on January 29, 2014 about the government archives - which have been open since January 1, 2014. “It left deep scars in communities like Wigan,” she said. “Many families never recovered and people have died waiting for justice. After 30 years, they deserve the truth and they deserve an apology. Why are they still waiting?”
Independent Commission of Inquiry in Scotland
These calls received little response from the British authorities, but in June 2018 in Scotland, Secretary of State for Justice Michael Matheson declared that he was “determined that the Scottish Government should do what it can to do right by those affected by the dispute". Supported by the president of the miners' union, Nicky Wilson, Matheson announced the setting up of an inquiry, entrusted to an independent commission, to conduct "a review of the impact of policing on affected communities in Scotland during the miners' strike 1984-March 1985". Chaired by lawyer John Scott QC, the commission also includes former independent parliamentarian Dennis Canavan, former Deputy Chief Constable Kate Thomson, and Jim Murdoch, Professor of Public Law at the University of Glasgow. After releasing a first interim report on the issue in January 2019, the commission delivered its final report in 2020. It is on the basis of the - still unofficial - text of this report that the British press was able to announce, on September 19, possible pardon measures on the part of the Scottish government.
Transitional justice tools and principles
The question of "rehabilitation" of striking French and British miners seems, as well as its intrinsic implications, to be part of the logic of transitional justice, of which it could be an innovative extension and so participate in its development. Three elements militate in favour of such a seemingly paradoxical analysis.
It is first the very structure of these processes that invites such a parallel. Both in France and the UK, the entire arsenal of transitional justice is being called upon: Beyond judicial decisions - which are often unsatisfactory in the face of victims' demands - a parallel approach is being put in place, made up of amnesty laws; independent commissions of inquiry that in many respects proceed like truth commissions by hearing all the actors and collecting testimonies; official apologies from the highest state authorities; and the will to rewrite school curricula to reintroduce the truth about social conflicts. Such a desire for reparation - financial, certainly, but also symbolic - is part of the same organizational model as transitional justice. It is a question of going back in time in the judicial sense to "restore" violations of victims’ fundamental rights by state authorities.
In this respect, the reasons why the Scottish government set up the commission of inquiry are indicative of this desire. According to Michael Matheson: “The Scottish criminal justice system has established procedures to deal with alleged miscarriages of justice and, as I have made clear to the campaigners, the Scottish Criminal Cases Review Commission is the appropriate route if anyone believes they have suffered in this particular way. However, wrongful conviction is just one form of injustice. The question is how might we better-address wider but equally distressing forms.” The renowned French magistrate Louis Joinet could no doubt identify with this policy of "equivalent guarantees" aimed at the realization of the principles of "truth, justice and reparation" - now associated with his name.
“A localized civil war”
Beyond the form, it is also the substance of these processes that leads to this parallel. Thus, even if the strikes take place within the framework of democratic regimes still in place today and the nature of the rights violations committed against the strikers - far removed from genocide and crimes against humanity - seems to exclude these processes from the field of transitional justice, a deeper reality calls for nuance.
Indeed, in both the French example and the British strike of 1984, the conflict goes far beyond a social conflict: it is, in fact, a more intense confrontation mobilizing considerable resources on both sides - notably military resources on the part of governments - and human communities as a whole on the side of the strikers. The violence reached very high levels. The confrontation was total, it went beyond questions of salary, status or profitability, it was a "localized civil war", according to the term used by Michelle Zancarini-Fournel in “Les luttes et les rêves - Une histoire populaire de la France de 1685 à nos jours”. French Interior Minister Jules Moch also spoke in 1948 of an "insurrectional strike" and Margaret Thatcher spoke of "the enemy within". The press and public opinion as a whole were mobilized. For The Times of August 2, 1984: “There is a war on. It is an undeclared civil war instigated by Mr. Scargill, his squads of pickets, and his associates against the rest of society. The enemy within dares insurrection against legitimate authority. The challenge can be met in only one way if the values of liberal democracy and liberty under the law are to prevail – by enforcing the surrender of Mr. Scargill and the national executive of the mineworkers’ union.”
Demands for truth and restoration of dignity
Much more than a social conflict, therefore, it is first of all a question of struggle against a subversive ideology - of which the strikers are allegedly the instruments - that is fundamentally posed. From then on, if the confrontation is global, the defeat is total, and beyond the financial damage, it is a societal shock that leaves scars on the side of the defeated. However, as in a large number of transitional justice processes, it is above all issues of memory and trauma that the actors in charge of these processes face: the testimonies collected are so many accounts of individual and collective trauma, transmitted from generation to generation. And, just as in transitional justice processes, it is first and foremost demands for truth and the restoration of dignity that are made. During the presentation of his Legion of Honour, former striking miner Norbert Gilmez declared: "From terrorists struck down by national indignity, we have become victims of the State (...). All we are asking now is to become fully-fledged French citizens once again."
In Scotland Michael Matheson expresses similar feelings: “I have been struck, as I said, by the continuing deep feeling and sense of injustice, a sense that our fellow citizens feel they have been misrepresented and ill-treated, that they wish their side of the story to be told and that any appropriate lessons are learnt, to avoid unnecessary division and distress in the future.”
According to this text, it is indeed towards objectives of reconciliation that this process is tending: “Whilst things have moved on considerably in the decades which have followed, the question of how best to learn from this period remains. How best can we aid understanding, reconciliation and inclusion?”
This "non-transitional" transitional justice, which aims at the democratic consolidation of the political regime through the reparation of its past crimes, has become one of the driving forces behind the evolution of transitional justice."
Dealing with authoritarian practices of democratic regimes?
Finally, a more global analysis makes it possible to support this linking of rehabilitation processes to transitional justice. Indeed, while transitional justice was originally established after conflicts or the overthrow of dictatorships, it has evolved considerably, and it is accepted that beyond its original limits, such dynamics can be established. The Moroccan example (in 2004 the new king set up an "equity and reconciliation" body) - in spite of its limits - has thus shown that there can be transitional justice for the transformation of a political regime, which can survive the denunciation of the crimes it has committed. Even more recently, the Canadian and soon Scandinavian commissions have revealed a transitional justice that makes it possible to revisit authoritarian practices, once again without questioning the nature of the political regime. This "non-transitional" transitional justice, which aims at the democratic consolidation of the political regime through the reparation of its past crimes, has become one of the driving forces behind the evolution of transitional justice. Finally, the creation in France in 2018 of a commission to shed light on sexual violence within the Catholic Church is part of this new type of process.
Similarly, the question of social rights is also raised. From the report of the High Commissioner for Human Rights Louise Arbour in 2006 - analyzing "violations of economic, social and cultural rights" as transitional justice issues - to scientific doctrine taking up these concerns and stressing the need for such integration, there is no doubt that the question of social rights is fully part of this perspective. Consequently, the processes of rehabilitating striking miners - although specific and exceptional - are at the crossroads of this double mutation: they make transitional justice a dynamic for reforming authoritarian practices committed within the framework of democratic regimes, as well as an instrument that is now open to broader social realities and not exclusively related to criminal perspectives.
As such, by the nature of the questions they put to both social actors and legal analysts, they participate, as other experiences have been able to do previously, in the pragmatic, progressive and - for the moment - unfinished building of the frontiers, contents and foundations of transitional justice.
A multiplicity of processes in the making?
In France, the Norbert Gilmez commission, provided for in the 2015 finance law, is charged with making proposals for appropriate commemorative actions, as well as for "the miners' strikes that took place in 1941, 1948 and 1952 to be taught through the school curriculum and integrated into research programs in history and the humanities" - even if this remains in doubt for now because of the State’s lack of means and commitment. If the law ends up being finally implemented, the commission will be able to report back and complement the measures already implemented.
In the UK, the final decision of the Scottish government, as well as the publication of the final report, will also open further debates and demands. In England, too, organizations are pushing for such a process, particularly with regard to the repressive aspects of British government policy. Here we should mention the Orgreave Truth and Justice campaign, aimed at obtaining the opening of an independent inquiry into the so-called Battle of Orgreave on June 18, 1984, the most violent day of the miners’ strike – to be modelled on the one carried out for the Hillsborough stadium disaster on April 15, 1989, which brought to light the lies of the government and police about the death of 96 supporters of the Liverpool soccer team and for which Prime Ministers David Cameron and Theresa May apologized on behalf of the government. This campaign, already supported by a number of northern English city councils, may see the report and the decisions of the Scottish government as a significant "encouragement". Indeed, since September 19 and the announcement of possible pardons in Scotland, several members of the House of Commons have tabled a motion calling for the establishment of such an inquiry throughout Great Britain.
These processes are therefore not complete and could inspire many others in dealing with episodes of state violence in democratic regimes.
JEAN-PIERRE MASSIAS
President of the Francophone Institute for Justice and Democracy (IFJD), he is a law professor specializing in democratic transition processes and transitional justice mechanisms. In 2015-2016, he participated in the training of members of the Burundi TRC and supervised several research and training programs in the field of transitional justice, such as the annual IFJD summer university created in 2014. He also directs several field projects, notably in the Central African Republic and the Democratic Republic of Congo, many of which are devoted to the treatment of war rape in wartime and carried out in collaboration with the Dr. Mukwege, Panzi and Pierre Fabre Foundations.
