It’s depressing that parliamentary committees responsible for holding to account such powerful institutions and individuals as the intelligence and security services, the bankers and the police are often either far too soft or far too aggressive. Some inspire little confidence in their efficacy as watchdogs to ensure that the intelligence and security agencies respect our civil liberties as well as working to protect us. Others appear to be constrained by no procedural rules governing their powers and objectives, nor by any safeguards to protect those summoned to appear before them to be aggressively interrogated.
After the parliamentary Intelligence and Security Committee (ISC) hearing on 7 November at which the heads of MI5, MI6 and GCHQ testified in public for the first time, an e-correspondent asked:
Did you watch ‘M’, ‘C’ and the man from GCHQ (he must resent not having a single-letter nom de guerre!) yesterday? I thought it was embarrassingly supine questioning. And if the MI6 man presents his intelligence material [to ministers and officials] with the same hyperbole as he does when he gives evidence, it must be very difficult to distinguish reality from imagination.
I very much agree. The committee was deeply unimpressive — conveying the impression, anyway to congenital sceptics, of being in a too-cosy relationship with the official eavesdroppers, sleuths and burglars, too respectful of them to say the softest boo to an elderly goose. Michael White in the following day’s Guardian was spot on when he said that the three top honchos seemed to have summoned the ISC to meet them, not vice versa. Obviously in an ideal world we should judge people by what they do and say, not by their physical appearance or even by the impression they convey on our television screens. But what these three powerful officials do and say is almost entirely secret: we have no basis for judging them apart from how they strike us on their rare public appearances. Did the three men seem roughly like ordinary sensible people, sharing ordinary citizens’ instincts and concerns (and sense of humour)? Did they show evidence of understanding the importance of balancing the demands of national security against the pressing need to protect our fundamental right to freedom from disproportionate state intrusion into our private lives? Or did they seem dogmatically committed to the principle that security by definition trumps civil liberties whenever and wherever the two collide? For those who watched the whole hearing last Thursday, those questions answer themselves.
The claim that these people are better equipped than the editors of the Guardian and the New York Times to judge (after extensive consultations and redactions) which bits of the various whistle-blowers’ leaked materials can safely be published seems plainly untenable; indeed laughable.
At the ISC hearing none of them was asked, or explained, why their “opponents” (those who threaten our security) were so pleased by the revelation that in order to identify the odd terrorist needle in their gigantic haystack, the intelligence services were obliged to collect such mindless quantities of hay in the form of all your and my emails and telephone calls and other private records, including access to their content. None of the three was asked or explained why we should consent to trust them not to read our emails and records or transcripts of our phone calls, so long as we hadn’t been communicating with the enemy — a kind of variant of William Hague’s deeply objectionable “If you’ve done nothing wrong, you have nothing to fear” riff. None was asked or explained whether the security services were evading bans on eavesdropping on their own nationals by swapping data on other nationals, such as Americans, with sister services, such as the NSA, the US equivalent of our GCHQ. None was asked or confirmed whether our calendars, address books, or medical and bank records are being collected along with our emails and telephone transcripts. None was asked or explained how we can be confident that the scale of the surveillance they conduct is not just convenient and helpful to them but also (in the words of Human Rights Watch) “necessary, proportionate, and subject to adequate safeguards against abuse”. None was even asked to comment on the cause of the immense leaks that have occurred in recent months — namely the American practice of giving access to colossal quantities of highly classified material to literally hundreds of thousands of soldiers and civilians, including contractors not even in the public service, without a thought for the basic principle of the “need to know”. None was asked or volunteered to acknowledge that these leaks had revealed deeply disturbing and gaping holes in the whole system, that the scale of surveillance had got out of hand, and that drastic remedial action was self-evidently and urgently required.
It’s true that if I were a terrorist (which I assure you I’m not), I would be rather reassured to discover that in order to identify a dodgy email I had sent or an indiscreet telephone call I had made, the lads and lasses at Cheltenham would have to sift through billions upon billions of communications that they had inexplicably lumbered themselves with, of which 99.99% would be by definition utterly useless to them (although around 50% might come in handy one day to an aspiring blackmailer, I suppose). Perhaps that’s why the head of the secret intelligence service was so outraged by the Snowden revelations and so sure that al-Qaeda would be “rubbing their hands with glee”.
The salient point that should have emerged from the ISC hearing, but didn’t, is surely this. It is utterly unacceptable that any state organ — or any other institution, come to that — should be allowed secretly to collect and store and be able to read the contents of the personal electronic communications of entire national populations. Knowledge is power, and no conceivable institution should be allowed to possess and potentially to exercise such overwhelming power over a whole population and more. Sooner or later, if this industrial-scale intrusion is permitted to continue, that colossal power will be abused, and by then it will be too late to stop it. As far as I could tell, watching the proceedings live, not one of the three witnesses at the ISC hearing, and none of the committee’s members, showed the slightest sign of awareness of that monstrous problem with which the latest revelations confront us. That is seriously frightening.
Oversight of these power-hungry characters’ activities by a parliamentary committee manifestly unwilling to ask hard questions is clearly of questionable value. Even allowing for the constraints imposed by holding the hearing in public and on television, it’s very difficult to imagine any of the ISC members, hand-picked by the prime minister, seriously challenging the spooks even in their closed and secret sessions. A senior judge also has investigatory and supervisory powers over the three security and intelligence agencies but he or she reports in secret to the prime minister, so we aren’t allowed to know what malpractices the judge may have unearthed and what, if anything, the prime minister is doing about them. I don’t know how else these largely unaccountable officials can be brought under control, and restrained from stealing and storing everything just because they can, at mind-blowing public expense. Any independent invigilator, even a suitably sceptical judge, is liable to be immediately co-opted into the cosy magic circle of those who are, or who are encouraged to believe they are, in the know. The security services charm, intimidate and control those tasked with supervising them by sharing a careful selection of their secrets with them, thus in effect gagging them as well as flattering them. Somehow, though, these scandalous practices have got to be stopped, or we can say goodbye to some of our most fundamental liberties. Remember the Stasi!
The basic jobs of the security service, the secret intelligence service and GCHQ are unquestionably vital and indispensable. There’s no serious doubt that a huge majority of those who work in them are honest and committed, and often brave. Much (but not all) of what they do obviously has to be kept secret. But it is now clear that secrecy has come to mask abuse of power on a vast scale. The Americans and other democracies are taking this seriously and debating possible remedies. President Obama is trying to overcome NSA resistance to his plan to rein in their ability to harvest Americans’ data without any constraint. Other democracies are overhauling their oversight systems. It’s time we in Britain did the same, instead of furiously denouncing Mr Snowden and threatening the Guardian for telling us what we were entitled to know all along.
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At the other end of the scale, power is being abused in a different way. We need to pay more attention to the growing habit of chairs (and some members) of certain parliamentary select committees — you know the ones I mean — of bullying and humiliating those summoned to appear before them as if conducting the Grand Inquisition, giving their defendants absolutely none of the protections and safeguards, such as the right to be legally represented, demanded by due process and the rule of law – in a word, by justice. At some of these hearings there are apparently no rules of admissible or inadmissible evidence, no Fifth Amendment right to refuse to answer if the answer might tend to incriminate the accused, no protection from an impartial presiding judge or defence counsel against bullying by the prosecution, no right to receive, before the hearing, full details of the prosecution’s case. The Grand Inquisitor is judge, jury and prosecutor rolled into one: the defendant is on his own.
A hearing like this is not just an aggressive probing interview of the kind we watch on the BBC Newsnight programme or hear on the BBC Today programme. It is much more like a kangaroo court mated with a show trial, and on national television into the bargain: wonderful entertainment, but at a shocking price Lawyers respect the principle of Equality of Arms in a proper trial, but in these virtual trials by parliamentary committee there’s no such thing. Justice is not served by such one-sided proceedings and it’s deeply distasteful, however unsavoury some of the victims might be.
Some of our MPs are beginning to act like pit bull terriers and rottweilers. Others behave like neutered pussy-cats. There really needs to be a middle way.
Grateful acknowledgements to the Huffington Post for the (slightly doctored) picture, which bears no resemblance to any real persons living or dead.
Of all the many opportunities now being missed by the Labour party for a vigorous, radical campaign to win over solid popular support, one of the saddest is Labour’s silence on the real possibility that in barely a year’s time, on Thursday, 18 September 2014, our fellow-citizens in Scotland may vote to leave the United Kingdom to become an independent state. Current polls show a clear majority of Scots opposed to independence, but much can change in a year, and not that many Scots seem content with the status quo. A Tory-led government at Westminster, with virtually no Conservative party support in Scotland, is waging a class war against the poorest and most vulnerable in the country, outraging widespread progressive opinion in Scotland. The Tories are appeasing their own loopiest supporters by increasingly putting British membership of the European Union — much more valued in Scotland than in England — at risk. The independence campaign is led by probably the most skilful and charismatic politician in the UK, Alex Salmond. Blandly assuming that the referendum due next year will come down against independence, and doing nothing at all to persuade the Scots to vote accordingly apart from nit-picking over the small print of the independence campaign, is a reckless gamble with the future of our country.
Yet there’s no sign of a Labour strategy aimed at offering Scotland a worth-while alternative to independence that could command support both in Scotland and in the RUK (rest of the UK). The Tories have clearly written off Scotland and have no policy for its future apart from complacently assuming that Salmond will lose his referendum and that the Scots will be content with the minor improvements to Scottish devolution in the Scotland Act 2012. The LibDems have a radical and forward-looking policy for Scotland and for the constitutional future of the UK, but no-one else seems to take any notice of it or to take it seriously. A bold Labour policy, supported by the LibDems and offering a brighter constitutional future for the UK, including for Scotland, would fill a yawning vacuum. It could form one of the key elements in an imaginative Labour programme offering an optimistic long-term alternative to the break-up of the UK, leaving a sadly diminished little England searching for a role with Wales and Northern Ireland in tow, as envisaged in a striking recent Observer article by Henry Porter. Deferring the unveiling of such a programme until the eve of a May 2015 general election will be too late: by then the Scots will have had their referendum and the die may have been irrevocably cast. The need is for a brave Labour initiative within at most a few weeks.
English lethargy in the face of the threat to the integrity of our country ought to have been brutally shaken by the publication of an important new book, Scottish Independence: Weighing up the Economics, by Professor Gavin McCrone, a distinguished former public servant and academic economist (full disclosure: Gavin McCrone is one of my oldest friends). This book is an invaluable guide to the main issues, political as well as economic, arising from the choice facing Scots next year. Short, pithy, commendably cheap, available as an e-book or paperback, written in clear English, accessible to the ordinary reader as well as to trained economists, amply supported by facts, figures and statistics, Scottish Independence could well have been published in a well-known series of handbooks and re-named Scottish Independence for Dummies. It ought to be required reading, not only for Scottish voters before their referendum next year, but also for everyone in England (and the other two UK nations) with an interest in the future of the United Kingdom. It has been widely discussed in the Scottish print and electronic media but, inexplicably, it has so far barely been noticed at all in England.
Professor McCrone, who sensibly refuses to disclose his own referendum voting intentions and remains resolutely impartial throughout his book, discusses the numerous questions that would need to be answered before Scotland could become independent, if that’s what the Scots vote for in 2014: could an independent Scotland continue to use the pound sterling and if so how much influence could it have on its own monetary and fiscal policies? on what basis would Scotland take on a fair share of the UK’s income from North Sea oil and of the UK’s national debt? could an independent Scotland afford to bail out its very large banks if they were to fail again in future? what would be the implications for both Scotland and England of Scotland going it alone on renewal energy policy? would Scotland need to apply for EU membership as a new state? what if England voted to leave the EU in the in-or-out referendum threatened by Mr Cameron, but Scotland, having voted to remain part of the UK, voted massively to remain in the EU? if Scotland applied for EU membership as a new state, would other EU member states with their own internal secessionist movements (Spain and Belgium, for example) be tempted to veto the Scottish application for fear of setting an awkward precedent? would Scottish EU membership require a new EU treaty whose ratification would trigger referendums in some EU countries, referendums that might well go against Scotland? would Scotland, if admitted as a new member to the EU, inherit a share of the UK’s EU rebate? would Scotland, as a new member, be required by current EU doctrine to join the Euro and the Eurozone, and/or the Schengen Agreement – which would mean immigration controls on the border with England?
Professor McCrone suggests possible answers to all these questions, stressing that if the Scots vote for independence, many of the most vital questions would have to be negotiated with the government at Westminster before independence could be achieved, and and that it’s impossible to predict what the outcome of those negotiations would be; and that others would fall to be negotiated with the whole of the EU, including the RUK, both before and after independence, the outcomes in each case similarly unpredictable. Professor McCrone notes that some of the principal questions have apparently not been discussed, even in a preliminary way, between Edinburgh and London or between Edinburgh and Brussels. It looks as if Scottish voters will have to make their decisions for or against independence in just a few months’ time without having the slightest idea how these questions, fundamental to their own future welfare and security, are likely to be answered. A pig in a poke indeed.
In a striking passage in his book, McCrone warns that
If independence is rejected, … there is a real danger that politicians at Westminster and officials in Whitehall may think that they can put away the files and not worry about Scotland any more. Proposals for increased devolution might then be shelved. That is quite a likely outcome but it would be a huge mistake. It would probably mean that the next time there was a big surge in support for independence for Scotland, maybe in ten or twenty years’ time [Note by BLB: I predict that it would occur much sooner], it would carry the day in a second referendum. That has been the pattern in the past over devolution. [Scottish Independence: Weighing up the Economics, Birlinn, p.147]
Here are five key elements for an urgently needed Labour strategy for the future of Scotland and the whole United Kingdom:
1. Labour should promise that if the 2014 referendum goes against independence, a future Labour government will negotiate a further significant expansion of devolution for Scotland. According to the polls, more Scots want this than want independence or the status quo, and there’s no conceivable reason not to agree to it. Why should Scotland have less control of its own internal affairs than California or Rhode Island in the US or New South Wales in Australia?
2. Labour should recognise that full self-government for Scotland will prompt pressure for the same status for England, Wales and Northern Ireland, and should agree to make this its long-term aim (and to work tirelessly for a national consensus in favour of it).
3. This would result eventually in a fully federal constitution for the UK and its four nations, and would entail, eventually, a separate parliament and government for England, probably sited in the midlands or north of England.
4. The transfer of further extensive powers to the parliaments and governments of the four UK nations will greatly reduce the functions and powers of the federal parliament at Westminster, justifying a radical reduction in the size of the (already semi-federal) House of Commons and especially of the House of Lords, the latter from nearly 800 at present to a maximum of 100 in the new elected federal Senate, in which (as in the US and Australia) all four nations would have equal representation, an essential protection for the smaller nations against domination by the biggest. The creation of a new modest-sized parliament for England would thus be consistent with a sharp net reduction in the total number of UK politicians.
5. There is no other durable or feasible answer to the West Lothian question than a gradual move, over 15 to 20 years, to a federal UK constitution as proposed, supported by a broad consensus across the whole political spectrum. It would create a lasting, democratic relationship between the four UK nations and between them and the federal centre, satisfy the legitimate aspirations of the Scottish and increasingly the English (and Welsh and Northern Ireland) peoples, and complete the long interrupted devolution process of which Labour is, or should be, the proud godfather.
There were more than half a million official requests for “data tracking of individuals” – details of the timings, originators, recipients, etc., of emails and telephone calls, but in principle not their contents – during 2012, according to the annual report of the Interception of Communications Commissioner, effectively the snooping regulator. According to the report, “during  public authorities as a whole, submitted 570,135 notices and authorisations for communications data… the number of requests submitted in 2012 represents an approximate 15% increase on 2011″, an increase attributed by the report mainly to security activity related to the Olympics.
The report also discloses that “the total number of lawful intercept warrants issued in 2012 … was 3,372 … a 16% increase on … 2011.” These are warrants allowing a long list of public bodies, including the security services and the police, to read the contents, not just the timing, senders’ and recipients’ details, etc., of intercepted emails and telephone calls, each requiring the formal approval of the Home Secretary.
The Commissioner reported that –
During , 979 communications data errors were reported to my office by public authorities. … This figure is higher than the previous year (895). However, as the number of requests has increased by 15% this year, the overall error percentage has actually reduced from 0.18% in 2011 to 0.17% in 2012. I am satisfied that the overall error rate is still low when compared to the number of requests that were made during the course of the reporting year.
So that’s all right, then. (The Guardian’s account of the Commissioner’s report says that “nearly 979 errors were made” during interception operations, prompting the question: what figure is best described as “nearly 979″? Perhaps 978? But it’s clear from the report itself that 979 was the precise figure, so “nearly a thousand” would have been a better approximation.) Of course the 979 errors comprise only the errors which were detected and reported: we have no way of knowing how many other errors were committed but never discovered, with potentially dire consequences for private citizens wrongly fingered through their emails, texts or telephone calls. All we know is that as a result of the known and reported errors, –
Six people have been wrongly detained and falsely accused of crimes in the past year as a result of mistakes made in the official disclosure of confidential data on their internet use to the police and security services
in the words of the same Guardian article. Actually the Commissioner’s report uses a tiresome slash – “wrongly detained / accused of crimes” – that could mean either ‘and’ or ‘or’. Either way it’s remarkable that there were only six known victims of nearly a thousand known errors.
Out of the 3,372 intercept warrants issued in 2012, i.e. those allowing the contents as well as the communications data to be accessed by a public body, 55 “errors / breaches” (that ambiguous slash again) were reported to the Commissioner by public authorities, representing a 30% increase on the 42 errors reported in 2011. Those 55 errors over intercepts sound relatively few only by comparison with the 979 errors committed in connection with communications data operations. Again, 55 can only be the number of errors that were spotted and reported: heaven knows how many others were committed and never discovered, with potentially catastrophic consequences for innocent victims.
All these activities are authorised by the infamous ” Regulation of Investigatory Powers Act (RIPA) 2000“. According to Wikipedia,
in September 2003 Home Secretary David Blunkett announced additions to the list of those entitled to access certain types of communications data collected under RIPA in what civil rights and privacy campaigners dubbed a ‘snoopers’ charter’. Following a public consultation and Parliamentary debate, however, Parliament approved the new additions in December 2003, April 2005, July 2006 and February 2010.
New Labour was responsible for this monstrous assault on our right to the protection of our private communications from snooping by the state. Ed Miliband’s One Nation Labour should promise now to repeal it at the first available opportunity, and to replace it by a new law reducing to a low minimum (1) the scope of these snooping powers, (2) the number of public bodies permitted to exercise them, and (3) the room left in the prescribed procedures for errors. This would require Mr Miliband to overrule the objections that would no doubt be noisily voiced by the succession of New Labour former home secretaries anxious to protect their places in history. It’s surely time for these old warriors to retire gracefully from the field and to maintain a dignified silence while the murkier elements in their legacy are cleaned up by a (small n) new and more liberal Labour government in the future.
I submitted the following letter to the Guardian on 1 June, in reply to a Guardian editorial inexplicably supporting the proposal now being espoused by the government for a given number of an MP’s constituents to be allowed to ‘recall’ him or her, either ending his political career or forcing him to vacate his seat and stand for re-election in a by-election:
The Guardian should not be supporting the idea of constituents having the right to recall — ie dismiss — their MP between elections, however many of them might vote to do so (Editorial, 1 June). Fear of de-selection already makes too many MPs slaves of their constituents, especially their local parties. They already tend to spend too much time as untrained and unqualified social workers in their constituencies, doing work that should be done by local Councillors and social workers, at the expense of their real jobs at Westminster — holding government to account and ensuring that the laws they pass are fit for purpose.
Not only must MPs try to avoid de-selection by their local parties: their careers depend on the approval of the party Whips, with their threats and bribes to compel them to vote according to their parties’ instructions, not their own best judgement and conscience.
We already see a House of Commons largely comprising automatons, lobby fodder with only rare signs of an independent spirit. Adding the power of recall at the whim of constituents would inevitably aggravate this dismal situation. We should remember Burke’s dictum that your MP owes you “not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.” The time to get rid of an unsatisfactory MP is when he or she stands for re-election, not at random times between elections whenever he incurs momentary unpopularity by some act of brave defiance.
1 June 2013
The Guardian publishes my letter today (4 June) but with the regrettable deletion of the vital Burke quotation in the penultimate sentence, thereby much blunting its effect.
A variant of the ‘recall’ proposal, not mentioned in my letter, is that a defined number of an MP’s constituents should have the power to recall him or her in retribution for some kind of ‘misbehaviour’. This too seems to me misconceived. If an MP is convicted of a criminal offence of sufficient gravity (as defined by law) to warrant it, he or she should automatically lose his seat and be disqualified from standing for re-election, as is already the case. If an MP has been found to have broken parliamentary rules of some kind but not to have broken the law, it should be up to parliament, not some arbitrary percentage of his constituents, to decide and impose an appropriate penalty, but not including expulsion from the House (which defies the judgement of his constituents who elected him). Some arbitrary proportion of an MP’s constituents are not equipped to act as some kind of combined judge and jury: even an erring MP is entitled to due process. Once an MP is elected, unless he commits a serious crime, he should be left to get on with it, free to risk unpopularity and controversy between elections and held to account for his record only at the next election.
Of course an MP elected as the candidate of a specific political party owes his seat and his loyalty to his party, but not when that loyalty comes into conflict with his best judgement and conscience. The threats and bribes deployed by party whips (and mentioned in my Guardian letter above) are in obvious contempt of parliament: anyone outside parliament who attempted to bribe an MP to vote in a particular way, or who threatened to terminate his political career unless he voted this way or that, would rightly be hauled before the Bar of the House, lectured, humiliated and punished. It would be very good discipline if the leaders and whips of the parties were made to rely on argument and persuasion to get their MPs into the desired voting lobbies, and not on blackmail.
Say No to the recall of MPs!
It’s striking but sadly predictable the way almost every media commentator on the affair of the ‘prankster’ Australian DJs and the tragically dead nurse have missed the main point: namely that a hospital, any hospital, housing any patient, should be the very last target of choice for a hoax telephone call (‘hoax’ being a more accurate description than ‘prank’, with its implication of harmlessness). The DJs can’t reasonably be expected to have known that their hoax would end in tragedy, and their recent television interviews, tearful and obviously wracked with grief and remorse, evoke almost as much sympathy as the family of the deceased. The vitriolic reactions of sections of the UK press and the Twitterati do our country no credit at all, and the demand that “heads must roll” is sickeningly out of place. The DJs should be left alone to rebuild their lives — and their careers in radio.
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Each time this website and blog have celebrated the long overdue abolition, principally by a bravely liberal Ken Clarke, of IPPs (the truly vicious system of Indeterminate Sentences, imposed for less than the most serious offences, a toxic blend of preventive detention and undeserved life sentence), the celebration has turned out to be premature. The Act of Parliament providing for abolition hit the statute book on May Day, 2012, and we celebrated. The it transpired that the abolition clause of the Act didn’t come into force until a date to be set by the Justice Secretary. At last the date for that was set: 3 December, 2012. That day duly came, and we celebrated. Hang on, wrote a contributor to the blog: some judge has just handed down two more IPPs, on 5 December! Hasn’t anyone told him? Now it turns out that the 3 December cut-off date applies not to the date of sentencing but to the date of the offence! So there are still probably hundreds — perhaps thousands? — of people charged with a variety of offences allegedly committed before 3 December 2012, for example in connection with the widespread riots in England in August 2011, who have not yet been sentenced (although the reason for such delay is incomprehensible): so all of these, if convicted of offences for which IPPs were once prescribed by law, are liable to be given Indeterminate Sentences, not just now, a good eight months after IPPs were abolished, but way into the indefinite future. Clearly this is no time to celebrate after all. A heavy responsibility consequently rests on the Justice Secretary, now Chris Grayling, to clean up the nightmarish way in which existing IPP prisoners, all 6,000 plus of them, are currently grossly mismanaged and almost never approved for release. [PS: But now see up-date, below.]
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A warm welcome to this blog to any readers who have come here via that distinguished journal Password (only you will know what I’m talking about). If you, or anyone else, would care to use the ‘Subscribe’ facility somewhere up near the top left of your screen, you’ll get an automatic notification by email every time there’s a new post here (contrary to appearances it’s free, and you can subscribe under a nom de plume if you wish, so long as you provide a genuine email address — which won’t be made public). Those who have already subscribed can easily unsubscribe, too, if they wish, although I hope you won’t. It doesn’t take long to press Delete if the notification of a new post doesn’t look interesting. Meanwhile Zag (retired) sends his best wishes for a happy, er, holiday season.
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I have commented in another place (actually in the aforementioned Password) on the wretched, worn-out, threadbare cliché “fall on one’s sword”, meaning “resign” and adding absolutely nothing to that straightforward word. Now those misguided hysterics clamouring for the wrecking of the careers of the Australian hoax-calling DJs are demanding that they “walk the plank”. It’s just about understandable that there should be so many euphemisms for the d-word (“pass away”, “gone to meet his Maker”, “lost”, and so on), but who nowadays has a mental picture of anyone falling on his sword (not an easy thing to set up, one might think) or even walking the plank? Perhaps the series of films depicting Pirates of the Caribbean is to blame for the latter, and even, who knows?, for the former.
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One of the many tragic victims of the coalition’s illiterate “austerity” programme and its primary attack on the living standards of the poorest and most vulnerable in society seems likely to be the Beveridge principle of universality of benefits, which has hitherto been central to the whole idea of the welfare state. Beveridge stressed that if all those in society who could afford to do so paid their premiums in taxes and National Insurance contributions to a virtual state insurance scheme which spread the risks of unemployment, poverty, homelessness, ill-health and incapacity, across the entire population, those suffering any of those insured risks would be entitled as of right to the appropriate benefit, just as anyone making a valid insurance claim is entitled to have it settled. Thus we may all go to our GPs for our flu jabs or to be referred to a specialist, free of charge, whether we are paupers or millionaires; no-one suggests that those who can afford private medical care have a duty not to use the NHS. But the government’s increasing stress on need instead of entitlement as the criterion for benefits, and its callous claim to the right to reduce benefits in real terms, year by year, as well as capping some of them and abolishing others, corrupts the Beveridge principle of universality and so undermines the very foundations of the welfare state to which all major parties once subscribed — until Thatcher and Blair came along. The very idea that Labour might contemplate actually voting in favour of this outrageous programme of indiscriminate cuts to benefits (for which the vast majority of recipients have paid with their taxes and NI contributions), and demonisation of the poor, is beyond parody. Where is the dilemma?
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It’s not easy to explain the almost universal addiction to the two current television thriller series Homeland and The Killing. Both are almost incomprehensibly tortuous — even my wife has to turn to the online reviews next day to find out what has happened, and then to explain them to me — and both seem to take place almost entirely in the dark, with only torch beams waving up and down to show that the television set hasn’t broken down. Both involve wild improbabilities: in Homeland, the hero (or anti-hero) walks around the streets of Washington DC and other cities unrecognised and unapproached, without any kind of personal security, despite being a Congressman, a candidate for the Vice-Presidency and a supposed “national hero” widely celebrated on national television. Yet the programme is the very definition of compulsive viewing. Partly it’s because of the superb acting by everyone involved (in the case of Homeland, including by the large British contingent, all with apparently impeccable American accents); but perhaps more strikingly it’s because of the moral complexity and sophistication of both series, with deeply flawed principal characters, mixed motives everywhere, and no automatic distinction between right and wrong behaviour or between goodies and baddies. The repeated statements of motivation and almost of justification of terrorism in Homeland, with its savage denunciation of the murder of innocent civilians by bombing from an American drone, are truly astonishing for a popular American television programme. Full marks to both series for telling it pretty much the way it is in real life.
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Update and correction: I have just been authoritatively informed that the 3 December cut-off date for IPPs applies not to the date of the offence, as I was previously led to believe, but to the date of the conviction — which would normally, I suppose, be very near to the date of sentencing. If that’s correct, we should indeed be close to the last IPP to be handed down. A very tentative but heart-felt ‘hurrah!’, if so.
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There are several possible explanations for David Cameron’s (and other Conservative ministers’) hardening objection to Lord Justice Leveson’s “essential” proposal that the new, press-initiated, independent and voluntary regulation of the press should be “underpinned” by a new law formally validating the new régime and guaranteeing press freedom from state control. The most obvious explanation, although not necessarily the right one, is that the prime minister lacks the backbone to stand up to the still-powerful newspaper proprietors and the right-wing press, or to his own Conservative libertarian right wing, nearly all of them noisily denouncing any idea of a law and insisting, against Leveson’s clear contradiction, that any law will amount to state regulation of the press – Stalinism without the charm. Another explanation is that Cameron genuinely believes that any law, even if it explicitly guarantees the press’s immunity from state control of content, will in practice turn out to be so complex and detailed that it will indeed amount to state control, as most of the press and some of his party colleagues claim to fear. Yet another, the one on which he seemed to lay most stress in the debate on Leveson in the house of commons, is that even the most innocuous under-pinning statute would be vulnerable to authoritarian amendment by some future illiberal government and parliament. This seemed, and seems, to me the most implausible of the lot:
The PM’s main “misgiving” about Leveson’s recommendation of a new law to underpin an independent press regulator reflects his fear that such a law could be amended or replaced by some future illiberal government in such a way as to infringe the principle of freedom of the press. But that danger must be much greater if there is no law already on the statute book that guarantees press freedom and the independence of the regulators than if there is. Leveson makes an irrefutable case for statutory backing for the new independent regulatory body he recommends, and which he stresses does not equate to statutory regulation. Parliament should clearly accept and act on it.
(Guardian, 1 December 2012)
Sir Brian Leveson envisages that the under-pinning law that he proposes would constitute a bulwark against state regulation of the press, not an instrument of it. Sir Harold Evans, perhaps the most distinguished British newspaper editor of our time, has remarked that the manifestly ‘free’ American press operates under the protection of just such a law – the highest form of law, namely the First Amendment to the United States constitution:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
On the other hand, some American commentators, including the sainted Bob Woodward, one of the two reporters mainly responsible for unmasking President Nixon over Watergate, have been expressing horror at the idea of any UK law affecting the press, claiming that under the First Amendment any such law would be unconstitutional.
The latest bizarre twist in the dispute is the Culture Secretary’s promise to draft and publish a Bill based on the Leveson proposals. The Bill’s declared purpose will be, not to present a government proposal for parliamentary legislation, the usual purpose of a government Bill, but the opposite: a document expressly designed to demonstrate by its reach and complexity that no such law could be made acceptable. If the government, or the Tory part of it, goes through with this weird exercise, it will be up to the Labour Opposition (which supports the Leveson proposal) and the LibDem members of the governing coalition who also support an under-pinning law, to amend the government’s deliberately flawed Bill so as to demonstrate that it can be made acceptable and effective without seguing into what could amount to state control.
The Secretary of State for Culture, Media and Sport, one Maria Miller MP, promoted a few weeks ago from her former invisible role as Minister for Disabled People at the Department for Work and Pensions, has made numerous universally unimpressive appearances on radio and television since the publication of Leveson, loyally denouncing any idea of an under-pinning law while constantly repeating in the same breath her mantra that the government fully accepts all the “principles” laid down by Leveson, apparently unaware that the two propositions are mutually incompatible.
Finally, today’s Financial Times reports that Ms Miller is convening a meeting of leading newspaper proprietors and editors next week at which she will urge them, not to draw up a plan along the lines proposed by Leveson for an independent press regulator, as they are invited to do by Leveson, but instead to devise an alternative to the Leveson blueprint! Apparently the prime minister’s and his Culture Secretary’s ‘acceptance of all the Levenson principles’ has some far-reaching limitations.
There are evidently some lacunae in the Levenson report: his unwillingness to condemn at all forthrightly either the suspicious failure of the police to investigate and prosecute the widespread criminal activities of British journalists, or the potentially corrupt relations between leading politicians of both main parties and some of the mightiest press magnates: the absence of clear guidance on how to regulate those press publishers who opt not to sign up to the new (voluntary) independent regulatory régime; and the failure to address the over-concentration of press ownership in too few, often non-British hands. Then there’s the thorny question of the impossibility (thank goodness) of regulating the internet with the wild excesses of the social media and the blogosphere. But Leveson has given the press and parliament more than enough demanding tasks to be getting on with. It’s sad that the coalition’s Tory members, whose leader once promised to accept and act on Leveson’s recommendations unless they turned out to be “bonkers”, are already rejecting key elements in them, inviting the press once again, for the seventh time in as many decades, to regulate themselves without having to answer to any form of external, independent but non-state supervision, in the pitiful hope that this time self-regulation will eliminate the gross excesses and misbehaviour which up to now have disgraced substantial sections of the fourth estate. Up with that we should not put.
On 10 February 2011, Jack Straw co-sponsored a resolution in the House of Commons condemning the European Court of Human Rights for declaring Britain in breach of the European Convention on Human Rights by depriving almost all prisoners of their right to vote. Recently, Yvette Cooper, Labour shadow Home Secretary, also committed the Labour opposition to support for the ban on prisoners voting. If, improbably, I had a chance to debate the issue with Jack Straw, our conversation might go something like this:
BLB: Mr Straw, in February 2011 when you spoke against restoring to any prisoners the right to vote, all you did was recall that whenever parliament discussed the issue, it always came down in favour of the ban. You didn’t attempt to justify it: why?
JS: It’s obvious. Anyone who commits a crime loses the moral authority to vote.
BLB: That was an argument used by the Labour government in 2005 in the European Court to justify preventing prisoners from voting. But the European Court found that a prison sentence couldn’t automatically remove a person’s other unconnected rights apart from the right to liberty. There are many who behave in an antisocial manner – tax evaders, for example – but who aren’t in jail: should they be disqualified from voting too? Once the right to vote is made conditional on a citizen’s morals, as defined by the state, you erode a basic foundation of democracy. Universal adult franchise should mean what it says: all adult citizens have the right to vote and the state has no right to remove it from any arbitrarily selected category of people, however obnoxious and unpopular they might be.
JS: Deprivation of the right to vote is part of the prisoner’s punishment, as enshrined in UK law.
BLB: But that just describes the present situation: it doesn’t justify it. Anyway, what kind of punishment is it? Are you seriously suggesting that the threat of losing one’s vote deters people from committing crimes? Or that losing one’s voting rights assists rehabilitation, or discourages re-offending?
JS: It’s clear from the opinion polls, and reflected in many votes in Parliament, that public opinion would be deeply offended if prisoners were allowed to vote.
BLB: Yes, I remember David Cameron saying that the thought of “giving” prisoners the vote made him physically sick. But the European court stressed in its judgement that there was no place under the Convention for automatic disfranchisement based purely on what might offend public opinion.
JS: Maybe so. My main argument in the 2011 debate was that this should be a matter for the British parliament, not for any international court. The judgment against us was purely a matter of interpretation of the Convention: there is nothing in the Convention explicitly giving prisoners the right to vote.
Please feel free to comment on this blog post, whether applauding, denouncing or correcting it — but please append your comments at the foot of the original article at http://www.barder.com/3849, not by private email. For example, please don’t send your comments as a reply to the email you may have received notifying you of a new blog post and giving the full text of it (but probably no illustrations or comments by others), unless what you want to say is purely personal. Thanks.
BLB: But when parliament voted to set up the European Court, it accepted an obligation to abide by its judgements, including interpretations of the Convention. We can’t pick and choose between the Court’s rulings, complying with some and ignoring others. We should champion the rule of law.
JS: Well, I suppose we shall eventually have to do something to comply with the judgment of the Court, such as giving the vote to prisoners serving very short sentences for minor offences. But for most of us even that will stick in the gullet.
BLB: You talk of “giving” the vote to some prisoners, but the right to vote is not yours to give. All prisoners have that right in a democracy: you are taking it away, and you still haven’t offered any justification for doing so, except that not doing so would stick in your and David Cameron’s gullet. Don’t you see that allowing, indeed encouraging, all prisoners to vote could be quite an important element in their rehabilitation and reform, by bringing it home to them that even in prison they are still citizens, with both important unconditional rights and equally important obligations?
JS: As I pointed out in the 2011 debate, I have never heard of any prisoner complaining about losing the right to vote. I doubt whether any but a tiny percentage of prisoners ever voted before going to jail, or are likely to vote after they come out.
BLB: All the more reason to include the duty to vote in the re-education of prisoners to be good citizens on release. Here is a classic example of the Labour Party in Parliament – One Nation Labour just like New Labour – failing to stand up for the rights of one of the most vulnerable, underprivileged and voiceless sections of society, obviously because it fears being labelled ‘soft on crime’ by the tabloids and the Tories. Isn’t it time that Labour gave a lead to public opinion, instead of pandering to the most primitive and reactionary elements in it?
JS: Look, you seem to forget that I am a qualified lawyer, and a former Foreign Secretary, Home Secretary, Justice Secretary and Lord Chancellor (among other high offices) in a Labour government that won three elections running. What are your qualifications for contradicting me on a legal and political issue like this?
BLB: Sir, indeed I’m not a lawyer, but I don’t regard this as primarily a legal question. I think all prisoners should have the vote, regardless of the European Court. Even if Parliament has to restore voting rights to a limited category of prisoners, and even if that satisfies the Court, I don’t think it would go far enough. I still haven’t heard a single argument for depriving any prisoners of their right to vote. As a lifelong Labour supporter, I am dismayed by Labour’s position on this.
JS: You’re entitled to your opinion. I have more important things to do than continuing this fruitless conversation. I have New Labour’s legacy to defend against the occasional assaults of my good friend David’s young brother. Goodbye!
Footnote: I have placed on my website a short paper providing a selection of references to documents and quotations from them relating to the issue of prisoners’ right to vote and the judgment against Britain of the European Court of Human Rights. This is at http://www.barder.com/notes-on-the-question-of-prisoners-right-to-vote.
The Ministry of Justice has at last set the date for the abolition of Indeterminate Sentences for Public Protection (IPPs), in accordance with the Legal Aid, Sentencing and Punishment of Offenders Act of 1 May 2012. From 3 December 2012, no more IPPs will be handed down. But abolition, however welcome, is not retrospective: it doesn’t affect those currently serving IPPs, nor those who may receive IPPs between now and the 3rd of next month, although there seem to be some signs that the processing of applications for release by IPP prisoners who are past their tariffs is being quietly speeded up and improved.
This is the most welcome culmination of years of campaigning against a huge injustice in our penal system, supported by every significant civil rights organisation and expert but passing almost unnoticed in parliament and the media. It has been the subject of numerous posts on this blog and elsewhere and of literally many hundreds of comments on them, mostly from the relatives and other loved ones of IPP prisoners suffering justified fears that they may never be released, despite never having committed any offence serious enough to warrant a sentence of life imprisonment.
The problems facing those now serving IPPs are not by any means resolved, but at least we know that the relevant ministers and their department are aware of them; and it’s probably unrealistic to suppose that there will be a single dramatic identifiable move to resolve them. It will now be for each individual IPP prisoner and his family and solicitors to do whatever they can to remedy specific shortcomings in the management of their cases, appealing to their MPs and the Justice Secretary and their prison authorities and the Independent Prison Monitors and the local newspapers as appropriate for support, and doing everything possible to satisfy their parole boards that they have reduced the risk of reoffending on release to acceptably low levels. It’s bleak and obvious advice but probably the most realistic that can be offered.
Meanwhile it will be of some comfort to know that a major blot on our system of justice is within sight of being removed. If there’s one thing about it that’s a matter for deep regret, it’s that this long overdue reform owes absolutely nothing to the Labour party in parliament, whose leaders have been consistently ambiguous or even openly hostile to the abolition of this evil and unjust régime. The LibDems have remained almost entirely silent, and the sole credit for a brave and necessary reform belongs to a handful of Conservative ministers, including notably Ken Clarke and now Chris Grayling, the present Justice Secretary and his immediate predecessor.
(Hat-tip: Lorna Elliott, once again.)
Many commentators have apparently missed the point about Abu Qatada‘s successful appeal against deportation. The Special Immigration Appeals Commission (SIAC) accepted the Jordanian government’s assurances that Qatada, if returned to Jordan for trial on old terrorism charges, would not be tortured and that the government, from the King down, would do everything possible to ensure him a fair trial. The problem is over two statements, made years ago, which it’s generally agreed may well have been produced by torture. These were used in evidence against Qatada when he was tried in Jordan and convicted in absentia, and are now in a sealed file of evidence used at the earlier trials. If they had the power to prevent those tainted statements being used again when Qatada is re-tried after being deported to Jordan, the King and his government would clearly do so. The SIAC judgment of 12 November (pdf) accepts that assurance: “with the significant qualification that all members of the executive government have made it clear to their British interlocutors that they cannot interfere in judicial decision-making“. The SIAC judgement exhaustively analyses Jordanian law and judicial processes and comes to the definite conclusion that re-use of the two tainted statements at any future trial of Qatada is a real possibility. This would not only contravene Qatada’s human rights under the European Convention (as the European Court has confirmed, Britain being a signatory to the Convention and hence legally bound by it) and under the UK Human Rights Act (as SIAC, a British court, has confirmed): it would also be in flagrant contravention of the UN Convention Against Torture, to which Britain and Jordan are both signatories. It is up to those who shrilly denounce SIAC’s judgment to state the grounds on which they disagree with SIAC’s carefully argued conclusion that under current Jordanian law and practice there must be a real risk that the two statements will be used in evidence against Abu Qatada if and when he is re-tried in Jordan.
Most, if not all, of SIAC’s critics have also missed an important further point made almost at the outset of its judgment:
This is our open judgment on that appeal. There is a closed judgment, in which we have set out our closed reasons for reaching the same conclusions as those set out in this judgment.
In other words, SIAC’s judgment that Qatada could not lawfully be deported to Jordan, because of the risk just described, was also reinforced by additional classified evidence which is too sensitive to be revealed publicly. There has been much criticism of the provision whereby SIAC may hear secret (“closed”) evidence, not revealed to the appellant or his lawyers but heard in closed session at which the appellant’s interests are looked after by a special advocate, a barrister with the necessary security clearance. This is not the place to debate the rights and wrongs of that procedure: the point is that SIAC had other, undisclosed grounds for reaching the conclusion it did, in addition to those in its lengthy published judgment.
On the BBC’s besieged Newsnight programme last night (12 November), the Conservative MP Peter Bone said the government should have ignored the SIAC judgment and put Abu Qatada on a plane to Jordan forthwith. Mr Bone later told ITV’s Daybreak programme:
Enough is enough. Put this terrorist on a plane and send him home and worry about the European Court afterwards. There are times when we need to put the public interest in front of the European Court and this is one of them… We should not be kow-towing to this Mickey Mouse European court.
In vain Shami Chakrabarti of Liberty tried to explain to Mr Bone that he was calling on the government to disregard the finding of a British court, not just a European one. Mr Bone wouldn’t have it. A skim through Peter Bone’s voting record on civil rights issues in the house of commons shows that his public incitement to law-breaking last night and this morning was entirely in character.
Finally, where was the voice of Labour in defence of the European Court of Justice, the Human Rights Act and the Special Immigration Appeals Commission when the home secretary, Theresa May, performed her predictable whinge in parliament about the SIAC judgment yesterday? Her Labour Shadow, Yvette Cooper, far from robustly defending the rule of law and respect for the fundamental rights of even the most unsavoury of the inhabitants of our country, instead outdid Theresa May in denouncing SIAC, the European Court, the home secretary’s record of attempting to deport Qatada, and the government’s action in “watering down” New Labour’s infamous Control Orders. Ms Cooper demanded that Qatada be held in custody (contrary to SIAC’s decision) until he could be deported, if necessary under the government’s Control Orders Lite, despite the fact that he has never been charged with any offence in this country, still less convicted. She twice recited the tabloids’ cliché about Qatada being allowed “on our streets”, as if this alone represented a threat to national security. Once again Ed Miliband’s One Nation Labour follows Blair’s old, discredited New Labour, positioning a once great liberal party to the authoritarian populist right of one of the most reactionary Tory-led governments in modern British history. If this represents the convictions of Labour’s front bench, they are in the wrong party. The only other explanation is a tremulous fear that the tabloids and the Murdoch press (and their political adversaries) will accuse them of being ‘soft on crime’. But cowardice is no excuse. Time for some backbone, Ed, Yvette and Sadiq!
I wrote the following letter to the Guardian minutes before leaving London for a river cruise up the Elbe from Berlin to Prague. The letter was published in the Guardian of 9 October, along with several others on the subject of abortion following the proposal by the Health Secretary, of all people, that the period in a pregnancy during which an abortion is permissible (on rigorous conditions) should be drastically shortened:
• The health secretary’s reactionary call for halving the period in pregnancy when abortion may be permissible (Report, 6 October) lacks logical as well as scientific justification.
Defenders of women’s right to choose whether and when to have an abortion should beware of accepting the anti-abortionists’ implicit claim that abortion should be banned from the point when the foetus, if removed from the womb, could theoretically survive.
There is no logic to this claim, and the test is purely hypothetical: some foetuses could be helped to survive outside the mother at almost any stage, others couldn’t. So long as it is a foetus and not a baby, it’s part of and dependent on the mother, who should have unfettered rights to decide its future.
Once born, it is a baby and a human, and quite different considerations apply, but not until then.
The alleged link between potential hypothetical viability and the ban on abortion is based purely on religious superstition about “the beginning of life” and should be firmly resisted.
Otherwise, scientific advances will eventually make foetuses potentially viable from the moment of conception – and we shall be back to the cruel days when all abortions were banned and back-street abortionists flourished.
If the space allocated by the Guardian for letters had been bigger, I would have added an acknowledgement of Owen Barder‘s blinding aperçu that there’s no necessary basis in logic or morals for the assertion that an abortion becomes unacceptable at the point where the foetus might hypothetically survive if removed from the womb, one of those Eureka! observations (except that I didn’t discover it, he did). It’s obvious when you think about it, yet even the most radical of the pro-choice campaigners never seem to challenge the underlying premiss of the anti-abortionists that once the foetus is theoretically “viable” on its own, aborting it must be wrong. Once you point out that there is no basis for this assertion, the whole case for repeatedly reducing the period in which abortions are permitted falls apart. Throughout her pregnancy, every woman should have the unfettered right to decide what happens to every part of her body and its contents, and it’s utterly unacceptable that anyone else should attempt to limit or deny that right.
(This post is being published, all being well, from aboard a river cruise ship moored on the Elbe in the heart of beautiful, beautifully restored Dresden, of whose virtual destruction by giant fire-storm, set off by the bombers of the Royal Air Force only a few weeks before the end of the second world war, we Britons ought to be suitably ashamed. But that’s a different point of controversy: this post is about abortion and women’s rights, once again under threat from religious bigots and other misogynistic obscurantists.)