The savage rise in household energy prices must be a worry for almost everyone in Britain, apart from the super-rich. Ed Miliband has clearly scored a popular bull’s-eye with his promise to freeze them (the prices, not the Britons, although…) if and when Labour comes back into office, and to use the moratorium to reform the dysfunctional market in gas and electricity. But I don’t understand why he hasn’t also promised to end the indefensible system whereby the cost of developing green, renewable energy sources to replace carbons is funded by a flat-rate addition to all energy bills, which is part of the reason for energy being so expensive. I know there’s supposed to be a vital principle that “the polluter pays”, but since ordinary users of gas and electricity have almost no choice of energy source, the imposition of what is effectively a tax on fuel bills which falls most heavily on the poorest seems iniquitous. Transferring to renewables is clearly a social good which should be funded out of progressive general taxation, with the richest paying the most and the poorest nothing. That would bring down energy bills quickly, as well as being much fairer. Labour should promise to end this impost before the Tories (or their junior partners) think of it.
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Talking of rising energy prices, I was amused to hear the energy minister (whose name escapes me) claiming to “wear a jumper in the house” to reduce his central heating bill. Not only did this seem a wonderful example of the “let them eat cake” school of public relations: it also jarred on those of us who refer to the garment in question, when worn by a man, as a sweater, not a jumper. Perhaps the minister was brought up in a home full of women.
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Fresh developments in the “Plebgate” saga continue to unfold before our wondering eyes. Andrew Mitchell, accused by the cops more than a year ago of repeatedly swearing at the policepersons (f. as well as m.) on duty in Downing Street and calling them ‘plebs’ when they wouldn’t let him cycle through the main gates, much later had a meeting in his constituency office with three senior policemen which had been billed as ‘private’. As soon as the meeting ended, the three coppers came out and told the press that Mitchell had refused to give them his own account of what had happened and what, according to him, he had really said. For this alleged failure they said he should resign from his government post (as he was subsequently forced to do). Fortunately Mitchell had had the foresight clandestinely to record the whole meeting, the transcript of which showed that the coppers’ accusation was completely false.
We should add to this the discovery by Channel Four News that the email to another Tory MP from someone purporting to be an ordinary member of the public who claimed to have heard Mitchell utter the fatal p-word and several f-words from outside the gates, turned out to be from a serving policeman who had been nowhere near Downing Street on the day in question: and the evidence of the CCTV cameras that Mitchell’s verbal exchange with the police had lasted only a few seconds, almost certainly too short a time for delivery of the extended tirade reported by the police. There’s more: the police report had alleged that Mitchell’s outburst had visibly shocked several passers-by in Whitehall who had overheard it, whereas the same CCTV cameras showed clearly that Whitehall had been completely deserted at the time, apart from one pedestrian who didn’t even pause or look round as he walked past. Questions began to be asked about the doubtful propriety of giving the Sun newspaper the police’s account of what had happened, and shortly afterwards actually copying the confidential official police log of the episode to the Daily Telegraph. The whole police case begins to look distinctly moth-eaten. No wonder the investigation into what really took place in Downing Street on that night of 19 September 2012, more than a year ago, is still not ready to report while the Director of Public Prosecutions scrutinises the evidence to see whether there’s a case for anyone to be prosecuted.
No-one wins friends by saying “I told you so.” But on 24 September, 2012, just five days after the altercation in Downing Street, and several weeks before the police case began to unravel, I wrote a post on this blog expressing scepticism about the proposition that a man with Mitchell’s background and education would ever use the kind of language attributed to him by the Downing Street police. “Indeed,” I wrote then,
the whole script given (or sold?) to the Sun newspaper (presumably by the police or someone acting for them) reads very strangely, looking much more like a police approximation in imagined toff-ese than what a toff is actually likely to have said. Clearly he swore, doesn’t deny it, and has apologised for it; and anyway ‘pleb’ is hardly the most insulting word in the language, especially as it so obviously says more about the speaker than the person spoken to.
Luckily my apparent prescience is on the record at http://www.barder.com/3739. Not many people were questioning the police account at that early stage. Now not many believe a word of it – least of all the p-word.
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Another (this time minor) mystery about ‘Plebgate’: why does the commentariat continue to talk about Andrew Mitchell having lost his “Cabinet post” as a result of the dispute? Mitchell had been a member of the Cabinet earlier, as International Development Secretary; but at the time of his tiff with the Downing Street police, as Government Chief Whip, he wasn’t. It seems that not many people know that.
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My main excuse for neglecting this blog for so long is that I’ve been busy writing a book – my first, and pretty certainly my last. It’s a funny time to be writing one’s first book in one’s 80th year and I am finding that the actual writing of the book is the least arduous part of the exercise: managing relations with the publisher and the editor in charge of getting the thing published, persuading experts in the field to read your manuscript and warn you of errors – and with luck to provide you with a glowing comment for use as blurb and for marketing purposes, wrestling with the unintelligible forms devised by the US tax authorities to be filled in (or out) to enable them to tax any royalties arising from American book sales, getting advice on which expenses can be set against UK tax on UK royalties, preparing to write the Acknowledgements and compile an index when the page proofs arrive, negotiating the contract with the publishers and trying to persuade them to let you have a few more free copies for distribution to family and friends – all this takes up more time, and sets more booby-traps, than writing the book in the first place.
Fortunately my publishers’ editor is a delightful, patient and unerringly helpful lady, and comments from experts who have read the manuscript (if 15 Word files can be called a manuscript) have been uniformly constructive and positive. In case you’re interested, the book is definitely not a memoir or autobiography, diplomatic or otherwise, nor is it a novel or other work of fiction, although it has superficial elements of both. I shall be reporting progress from time to time on this blog and I may put extracts from it on my website in due course: watch this space! In the meantime, there’s already a lot of information about it on my publishers’ website, at https://rowman.com/ISBN/9781442226357 (click all four tabs there, “Description”, “Author[s]“, “Table of Contents” and especially “Reviews“). That web page still shows the publication date as next July, but in fact the scheduled publication date has been brought forward to the spring of next year, since I transmitted the finished product to the publishers earlier than they had expected. Start saving up for a copy now! End of commercial.
Today’s Guardian (20 Aug 2012) publishes a letter from me dismissing one suggested solution for Mr Assange’s future and proposing another:
Letters: Diplomatic dilemmas and Julian Assange
Your editorial (17 August) states categorically that “an embassy car is not diplomatically protected”, although I don’t know how you square that with Article 22(3) of the Vienna Convention (“The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution”). This, however, seems unlikely to help Mr Assange to get himself to Ecuador without being arrested when he leaves the embassy to get into the car or at the port or airport when he gets out of it. A safer way might be for Ecuador to appoint him to the diplomatic staff of their embassy in London, for which the UK government’s agreement would not be required. Mr Hague would then expel him, after the Ecuadoreans had refused to waive his diplomatic immunity. But Assange would retain his diplomatic immunity from arrest until he had left the UK, presumably on his way to Ecuador and political asylum. Such diplomatic chicanery to enable Assange to escape British and Swedish due process would lay Ecuador open to retaliation – Britain could expel its ambassador or even break off diplomatic relations – but the Ecuadoreans might think it worthwhile. No doubt Mr Assange would!
Since I submitted my letter, a friend much better qualified than I has queried my assertion that the British government’s approval would not be required for Ecuador to appoint Mr Assange to the diplomatic staff of its embassy in London, citing Article 8 (2) and (3) of the Vienna Convention:
2.Members of the diplomatic staff of the mission may not be appointed from among personshaving the nationality of the receiving State, except with the consent of that State which may be withdrawn at any time.
3.The receiving State may reserve the same right with regard to nationals of a third State who are not also nationals of the sending State.
Mr Assange, being an Australian citizen, would be covered by (3), which seems to entitle the British government to withhold consent from the appointment to the Ecuador embassy of a national of neither Ecuador nor the UK — but arguably, by implication (“may reserve”), only if HMG has availed itself of the permission given in 8(3) to reserve that right in respect of nationals of a third state and has notified Ecuador that it has decided to exercise it. The Convention seems unclear about whether the right under (2) of the receiving state (the UK) to withdraw its consent to an appointment “at any time” also applies to (3) and therefore to Mr Assange. All one can say is that an attempt by Ecuador to go down this route would seem likely to provide lucrative employment for many years to lawyers representing Ecuador, the United Kingdom, Mr Assange, and Sweden, and probably the judges of one or more international courts and tribunals, before the matter could be resolved. Throughout this time, Mr Assange would presumably continue to be confined either to the London flat which serves as the embassy of Ecuador, or possibly to an English prison while he once again contests, this time on grounds of his disputed claim to diplomatic immunity the UK’s right to extradite him to Sweden.
The other letters on the subject also published today (including one from the indefatigable Mr Keith Flett) raise some other interesting questions. One letter-writer thinks the British government should “insist” on Sweden sending its prosecutors to interview Assange in the Ecuadorean embassy in London — forgetting that it’s for the Swedes, not us, to decide where they should question him about serious allegations made by Swedes about crimes allegedly committed in Sweden. If the questioning were to result in a decision to prosecute Assange, he would clearly need to be in Sweden to be arrested and charged, which could hardly happen in a foreign embassy in London. Another letter questions William Hague’s announcement that HMG doesn’t recognise the concept of diplomatic asylum, recalling that Britain didn’t object the the Americans sheltering Cardinal Mindszenty from the communist government of Hungary for 15 years in their embassy in Budapest. But Mr Hague’s announcement probably refers to a convention on diplomatic asylum signed by a number of South American states, including Ecuador, but not by the UK, which among other things obliges the country where a refugee has been given shelter in a foreign embassy to give the refugee safe passage to the embassy’s home country. HMG has already made it clear that it will not give Assange safe passage to Ecuador or indeed to anywhere else other than Sweden, and Britain has absolutely no obligation to do so under international law.
Today’s excellent Guardian editorial provides a refreshing reminder that the issue at stake here is the serious allegations of sexual assault and rape made against Mr Assange arising from his conduct in Sweden. The Guardian has tried to work with Mr Assange and knows whereof it speaks. Those who are emotionally committed to him as the founder of Wikileaks and the orchestrator of the publication of a vast mass of American classified documents hardly seem the kind of people who would argue that a serious rape allegation should not be followed up by proper investigation; radical feminists have long protested at the frequent failure of police forces here and elsewhere to take accusations of rape and other offences against women sufficiently seriously. It is these allegations which Mr Assange is struggling so ingeniously and energetically to avoid answering, not extradition to the United States on an application by the US which has not been issued, to face charges which have not been laid. The motives of the Ecuador government in coming to his rescue to save him (temporarily) from extradition to Sweden seem connected with its practice of irritating Washington (which clearly has no love for either Wikileaks or its founder) whenever possible, and strengthened by Mr Hague’s inexplicable blunder in explicitly threatening to use non-existent powers to send his coppers into the Ecuador embassy without its permission to arrest Mr Assange, in plain contravention of international law, thus regrettably putting Britain in the dock alongside Mr Assange. None of this should distract attention from the only serious issue: should Mr Assange go to Sweden, preferably voluntarily but otherwise in handcuffs, to answer the allegations against him? Of course he should.
Postscript: Amid the plethora of blog posts and comments on the Assange affair, here are two which usefully explode some myths and provide clarification of the law:
[Note: This is the text of a submission to the McKay Commission on how the House of Commons might deal with legislation affecting only part of the UK, following devolution – i.e., the West Lothian Question. Information about the Commission is on its website at http://tmc.independent.gov.uk/. This submission is also posted on the Commission's website here (pdf) Comments on it may be posted either here (below) or on the McKay Commission website].
Question: West Lothian? Answer: A Federal United Kingdom
Devolution ‘has turned Britain from a unitary state into a quasi-federal state’
(Vernon Bogdanor in The New British Constitution)
Introduction: the problems and their solution
This paper argues that the only durable and democratic answer to the West Lothian Question (narrowly re-phrased in the Commission’s terms of reference) is ultimately a full federation of the four UK nations — England, Scotland, Wales and Northern Ireland; and that it is impossible to propose a solution to the narrow problem posed in the McKay Commission’s terms of reference (“To consider how the House of Commons might deal with legislation which affects only part of the United Kingdom, following the devolution of certain legislative powers to the Scottish Parliament, the Northern Ireland Assembly and the National Assembly for Wales“) without placing it in the context of the constitutional future of the United Kingdom as a whole. This inevitably also means considering the future of Scotland, within or outside the United Kingdom, and its implications for the rest of the UK . Study of the implications for the House of Commons must also include consideration of the future of the House of Lords or whatever would replace it in a federal United Kingdom.
At the heart of the West Lothian Question and the Commission’s terms of reference is the unsustainable anomaly whereby since devolution the House of Commons has had to try to play two distinct and ultimately incompatible roles: first, as a quasi-federal legislative body for the whole of the United Kingdom, dealing with all subjects not devolved to Scotland, Wales and Northern Ireland (such as foreign affairs, defence, and other all-UK matters); and secondly, with the House of Lords, as a parliament for England dealing with all English internal matters, including subjects such as education and crime that have been devolved to Scotland, Wales and Northern Ireland but not to England. Since the members of the House of Commons are elected from all the four UK nations, and not just from England, it follows that its membership alone makes it quite unsuitable as a parliament for England.
Another aspect of the anomaly is that whereas the House of Commons can more or less function as a substitute for an English parliament, despite the unsuitability of its membership for that role, the only available substitute for an English government is the government of the whole of the United Kingdom, whose composition is even more unsuitable for governing England than that of the House of Commons — for example when the United Kingdom has had a Scottish or Welsh prime minister and other non-English ministers responsible for English domestic matters. Elaborate schemes for establishing an English Grand Committee of English MPs to act as an English parliament to deal with legislation affecting only England all fall down on this fundamental problem: under the Westminster system, a legislature can’t function without an executive drawn from it and answerable to it. There are many other fatal objections to the English Grand Committee idea and its more or less ingenious variants, but the absence of anything corresponding to an English government alone makes it impracticable.
The West Lothian Question and a federal United Kingdom
The anomaly reflected in the West Lothian Question can be resolved only by separating the two contradictory roles currently played by the House of Commons. Its primary role, as a semi-federal legislature for the whole of the UK for subjects not devolved, is appropriate to its all-UK composition, matched by a semi-federal UK government, and appropriate for the federal United Kingdom of the future. Its secondary role, as an English parliament, for which its composition is inappropriate and which is unmatched by any English executive body, manifestly requires the creation of a new legislative body for England, in parallel with the Scottish parliament and the corresponding legislatures in Wales and Northern Ireland. Logic and basic constitutional doctrine would also then require the creation of an English government, in parallel with the executives or governments of the other three UK nations. When England at last possesses its own parliament and government, the federal character of the United Kingdom created by devolution will become too obvious for even the most dedicated conservative to miss.
Implications of federalism
As Professor Bogdanor has recognised, devolution has already made the UK a “quasi-federal” state, with many of the features of a full federation already in place: an upper or federal tier for the whole of the United Kingdom (the House of Commons, House of Lords and the United Kingdom government), with a lower, second tier comprising the four UK nations, of which three already possess their own legislatures and governments with powers for many of the purely internal, domestic affairs of each but no powers at the level of the United Kingdom as a whole. We now also have a Supreme Court whose powers include, inter alia, interpreting (i) the Human Rights Act (which would need to be incorporated in a written federal constitution and entrenched) and (ii) the legislation that has created devolution and defined the competences of the second-tier organs, although the Supreme Court at present lacks the power to disallow or nullify primary legislation of the United Kingdom parliament in the way that the Supreme Court of a fully-fledged federation would have to be empowered to do.
Much the biggest, most widely gaping hole in our present quasi-federal constitution, that will need to be filled in before we can progress to fully federal status, is the absence of a dedicated parliament and government for England, by far the biggest and wealthiest of the four second-tier nations. Developing a national consensus — especially but not only in England — in favour of a new, separate parliament and government for England will be a difficult challenge facing those with the vision to work towards eventual full federation for the whole UK.
Other challenges will be to develop general agreement across the UK and the main political parties on: the definition of the powers of the first and second tiers of government respectively, including which powers are to be shared, and which tier is to prevail in the event of disagreement; on the mechanism for revenue allocation as between the five spheres of government; on the terms of a written federal constitution setting out, among other things, the respective competences of the two tiers; on the mechanisms for drawing up a written constitution for each of the four UK nations, each of which will almost certainly differ from all the others, and for legitimising each by local referendum or otherwise; on mechanisms for consultation between each of the five governments on matters of common interest to all of them, and for resolving disagreements between them where necessary; and on empowering the federal Supreme Court to interpret and enforce the new written federal constitution, including the power to strike down legislation by any of the five legislatures that it deems inconsistent with the constitution; and on procedures for amending the federal constitution after it has come into force, including special procedures for amending the most important of its provisions, which will be ‘entrenched’, requiring especially demanding procedures for amending them.
Before any progress can be made on any of these reforms, it will be essential to forge a widespread national consensus in favour of the federal idea and its broad implications (although the details will need to be worked out by stages as each phase nears completion and comes up for popular approval by whichever mechanisms are decided at the time). Clearly all this, including especially the establishment of a parliament and government for England, will take years to work its way through the system. The essential preliminary is to secure broad national agreement on the ultimate objective, filling in the details step by step as we go along. The whole process is unlikely to take less than two decades from the time when a major UK political party commits itself to eventual federalism and embarks on the enormous task of persuading a broad swath of public opinion to agree to it and to work towards it.
Objections to federation
The commonest objection to a federal UK is that the disproportionate size and wealth of England relative to Scotland, Wales and Northern Ireland would make a federal system unworkable. The answer to this is surely that it is precisely the disproportionate size and wealth of England that make federalism necessary. The size of England relative to the rest of the UK is a given; it can’t be changed by any conceivable constitutional device. Before devolution there were effectively no safeguards for the rest of the UK against domination by an England whose population is far bigger than that of the other three nations put together. A UK government and parliament with a huge majority of MPs and ministers from England were free to impose virtually any policies on the rest of the UK, regardless of local interests or wishes. Devolution has provided limited protection for the rest of the UK against interference by the England-dominated UK government by preventing Westminster from exercising powers on the devolved subjects. Full federation would greatly increase that protection in various ways: each of the four UK nations would enjoy full internal self-government, with the federal government at Westminster prohibited by the constitution from legislating for the domestic affairs of any of the four UK nations; the constitution of each of the four UK nations would only be amendable by that nation’s people and parliament, not by any first-tier federal government or parliamentary organ; and the interests and wishes of the rest of the UK would be further protected by the composition and powers of the federal second chamber or Senate (replacing the House of Lords) in which it would be impossible for members elected in England to outvote those elected in the other three smaller nations. Only a federal system will provide such extensive safeguards against domination and interference by England in the affairs of the other three nations. The disproportionate size of England is a strong argument for federation, not an obstacle to it.
Another frequent objection to federalism, and to the creation of a parliament and government for England, is that there is no popular demand for them. But this has always been cited as an obstacle to progressive reform. Popular demand and support are created by the vision and leadership of our best politicians, their capacity for describing persuasively what is wrong with things as they are and how they could be done better. When Britons begin to experience the enormous benefits of federalism, they will wonder why they took so long to want them.
And the third most common objection is that federation will create a new and unnecessary tier of government in addition to those we already have, and put hundreds more politicians on the payroll. But we already have two tiers of government in our quasi-federal system, on top of local government, district councils, parishes and the rest; adding English government organs to the existing second tier won’t create a new tier. As to the number of politicians, the new federal Senate, if each of the four UK nations were to elect (say) ten or even 20 members to it, would still comprise at most 80 members — less than a tenth of the present membership of the House of Lords (812 at the latest count!), and still comparable in size with the Senate of the United States to which each of the 50 States elects just two members, for a country whose population is around five times that of the UK. With the significant reduction in the responsibilities of the federal parliament at Westminster (because it will lose any jurisdiction in England’s domestic affairs once an English parliament has been established, and because all remaining powers in respect of the internal affairs of the four UK nations not yet devolved will be transferred to them), there could be a significant reduction in the size of the House of Commons to well under the currently proposed 600: and most of its MPs’ current constituency duties would fall to the members of the parliaments of the four UK nations which would have full and exclusive competence in all their domestic affairs. Only the new English parliament, whether comprising one or two chambers, would involve additional politicians, and it too could be strictly limited in size. Thus, far more savings in the number of current politicians could be achieved than the additional politicians needed for England, resulting in an overall reduction in the number of UK politicians, not an increase.
Implications for the House of Commons and for House of Lords reform
As suggested earlier, the second chamber or Senate of the federal parliament at Westminster in a fully federal system would ordinarily be a “states’ house”, designed to provide each of the second tier nations with an additional input into such federal subjects as foreign affairs and defence, as well as affording the three smaller nations protection against being steam-rollered by much larger England in federal subjects. It would in addition continue its roles as a scrutineer of draft legislation coming to it from the other House, and holding the UK government to account. Protection for the smaller nations against being steam-rollered by England in the federal spheres would be achieved by the principle that each of the four nations would elect an equal number of representatives to the second chamber — as is the case in the Senates of the United States and Australia, the two democratic federations which perhaps offer the most useful lessons to a federal United Kingdom. The principle of representation roughly proportionate to population would be preserved in the federal House of Commons, which would continue to be the source and home of the federal UK government. This would be the case regardless of whether in the course of the constitutional reforms it were to be decided to retain First Past the Post or some form of proportional representation for elections to the Commons.
There seems no reason why the arrival of full federalism should involve much, if any, change in the powers and functions of the federal second chamber (or Senate) from those of the present House of Lords — nor indeed why there would need to be changes in the functions and powers of the federal House of Commons, apart from the Commons ceasing to function as a parliament for England once a separate English parliament had been set up as part of the federalisation process.
The relationship between the House of Commons and the new federal Senate would also probably be unaffected. The obsession with preserving the primacy of the House of Commons, and avoiding conflict or deadlock between the Commons and an elected second chamber, is in any case misconceived. The Commons’ primacy is already guaranteed by its function as the creator and home of governments – the prime minister and all senior ministers must nowadays be MPs, not peers, and the government derives its legitimacy from having the confidence of the majority in the House of Commons, not the House of Lords. (It would be wise to provide that after any reform of the second chamber all ministers must be House of Commons MPs, not members of the second chamber. There could be provision for ministers to appear in the second chamber to answer questions, or even to take part in its debates, but without the right to vote there.)
We don’t need to invent the wheel. The vast majority of western democracies have two wholly elected legislative chambers without suffering the kind of constant conflict or paralysis that our present rulers seem to fear (the coup d’état mounted by the Governor-General of Australia and the then leader of the federal opposition against the Labor prime minister, Gough Whitlam, in November 1975 following a deadlock between the two Houses was a function of a bizarre anachronism in the Australian constitution). Moreover a degree of constructive conflict between the two chambers can be good for accountability and transparency, especially if both have a plausible claim to democratic legitimacy through having been elected. The fear of an elected second chamber sometimes challenging the House of Commons reflects the control freakery and over-centralism that are the bane of our politics. The House of Commons will always have the ultimate power and the last word in subjects reserved to the competence of the federal tier.
I assume that a federal Senate will be wholly elected. The alleged benefits of the expertise contributed by appointed members of the House of Lords, cited as justification for retaining an unelected, appointed element in a reformed second chamber, are wildly exaggerated. A distinguished former gynaecologist has no more credentials for contributing to a debate on Trident than an equally distinguished retired admiral has for speaking on abortions (and the bishops have no obvious expertise on anything relevant to law-making). An elected second chamber could call on expertise ad hoc, even allowing experts to participate in debates, as required: but unelected experts should have no claim on seats in our legislature just because they are experts, and any appointments system may be relied on to degenerate into party patronage and effectively a kind of corruption. In any case, the wisdom and profundity of House of Lords debates are more often admired than experienced: as our sharpest constitutional commentator, Walter Bagehot, sagely remarked, “A severe though not unfriendly critic of our institutions said that the cure for admiring the House of Lords was to go and look at it,” an observation as accurate now as when it was written (in 1867!).
Implications of and for the Scottish independence referendum
Britain has traditionally been governed not only as a unitary state but also under a grossly over-centralised system. Scottish resentment of an overwhelmingly English government and Parliament constantly meddling in Scotland’s internal affairs has led to the rise of a popular independence movement to which partial devolution was the imaginative and constructive response of Scottish leaders of all political colours and of the then Labour government at Westminster. Partial devolution to Scotland, Wales and Northern Ireland has become increasingly popular in those three nations, leading to widespread demand for the grant of further devolved powers. In Scotland, this demand takes the form of a campaign for ‘devo max’, or full internal self-government within the United Kingdom, as a constructive alternative to full independence. It currently enjoys greater support than independence in the opinion polls. Full internal self-government for Scotland, if chosen by the Scottish people in the referendum scheduled for the autumn of 2014, will inevitably prompt demands for the same status in Wales and Northern Ireland, and (more controversially) for devolution and full internal self-government, with its own parliament and government, for England. As already noted, the UK has already become a quasi-federation since devolution; that process has been temporarily interrupted, leaving a host of anomalies crying out for resolution, including most potently that encapsulated in the West Lothian Question; its logical destination can only be full federation for the whole of the UK.
It is impossible at present to predict precisely what kind of federal system we shall want or need in the medium to long term, in advance of the Scottish referendum in 2014. If Scotland votes for full independence, the rest of the UK will need a different kind of constitution from the four-nation federation that will be appropriate if Scotland becomes fully self-governing within the UK. It follows that now cannot be the right time either to introduce important changes to the way we appoint or elect members of the House of Lords, or to attempt a precise description of the kind of federation that will be appropriate for a three- or four-nation United Kingdom. But it’s vital to register that the result of the referendum in Scotland in 2014 could be powerfully affected by what seems to be in store for a United Kingdom that still includes Scotland in the years following 2014. If there were to be a good prospect of an eventual full federation of the four UK nations, including Scotland, each enjoying full internal self-government and more effective protection against meddling by Big England or by the federal centre at Westminster, that might well tip the scales decisively against a referendum vote for Scottish independence and secession from the United Kingdom.
But there is not much time left for convincing undecided Scots that such a prospect is a realistic one. Neither of the two main UK parties has yet been brave enough to pick up the federal ball and run with it, although the LibDems have been increasingly toying with the idea.
The problem of how to legislate for England on matters which have been devolved to the other three UK nations, encapsulated in the West Lothian Question, is logically and constitutionally incapable of being solved by creating a sort of English parliament within the present House of Commons. Such an ur-parliament could not function without a separate English government. Under our present semi-unitary, semi-federal constitutional arrangements, almost all Westminster legislation affecting England has consequences, often including financial implications, for the other three nations, who can’t properly be denied a say in it. It’s inescapable that a solution must tackle the problem at its root: namely, the fact that the House of Commons has to try to play two fundamentally incompatible roles, that of a first-tier federal parliament for the whole of the United Kingdom in subjects not devolved to Scotland, Wales and Northern Ireland, and simultaneously as a second-tier English parliament for which its composition disqualifies it, as well as the absence of a corresponding English government and the lack of any role in legislating for England for the House of Lords. The only durable and logical solution to this is to separate out the two roles by establishing a separate second-tier parliament and government for England. And this means a further and decisive step towards a full federation of the four UK nations, with wide and almost entirely beneficial implications for the whole country.
A large part of the problem of securing a sensible, durable and democratic federal system for the UK arises from the widespread ignorance in Britain of basic federal principles, aggravated by an apparent inability to recognise that we are already more than halfway into a federal constitution. It can’t be said too often that we already have a quasi-federal system, and that eventually a full federal system for the UK is almost inevitable – as well as highly desirable. If our political leaders, parliamentarians, political commentators, editors, academics and other opinion-formers continue in ignorance of what federalism needs and demands, we shall continue to commit damaging blunders in seeking to reform or even just improve our constitutional system. Instead of ramming through an ill considered and flawed reform of the arrangements for legislating on purely English matters by a selection of House of Commons MPs who have been elected to a quite different kind of body, or for “reforming” the House of Lords as proposed in the government’s current Bill, we should spend the time between now and the Scottish referendum on a campaign of public education in federalism as the best and only way to resolve the many anomalies created by our failure to complete the half-finished process of devolution, namely by moving purposefully towards a full federal constitution for the United Kingdom. A good start might be the appointment of a Royal Commission or other formal body charged with making and publishing a detailed analysis of the constitutions of other democratic federations, spelling out the lessons to be learned from them in the circumstances of the United Kingdom following the Scottish independence referendum in late 2014, whatever its outcome turns out to be. Already we are running out of time for that badly needed exercise in public education.
25 July 2012
Unless one is a fanatical Scot, it’s impossible to read the whole torrent of comments on the new-found Scottish Question, so selection is unavoidable. Actually, it’s only necessary to read one blog post and two articles from the UK press of recent days: Neal Ascherson in the Observer of 15 January, and Simon Jenkins in the Guardian of the 12th. An Observer sub-editor has tried to put readers off Ascherson’s article by giving it a misleading headline (confusing ‘sovereignty’ with ‘devo max’), but the article itself, as usual with Professor Ascherson, is spot on. Some 70% of Scots, according to the polls, want devo max, and their elected First Minister is apparently prepared to offer it as an option in the referendum. All signs are that with devo max on the ballot paper, the independence option would be defeated. So what do the leaders of all three main UK unionist parties say? That devo max should not be offered as an option in the referendum, which should be confined to two options, independence or the status quo, neither of which the majority of Scottish people appear to want. No one has been able to put forward a single argument for denying to Scotland a constitutional development which a clear majority of Scots do want, which would be capable of changing the relationship between Scotland and the rest of the UK for the better while leaving the Union intact, and which might well save the UK from disintegration. Truly, those whom the gods wish to destroy, they first make mad. Wake up, Mr E. Miliband!
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According to a report in the Daily Telegraph, a group of right-wing Tory grandees are planning to derail the cuts in legal aid provision proposed by the Justice Minister, Ken Clarke, in his Legal Aid, Sentencing And Punishment of Offenders Bill currently going through the House of Lords. If the Lords vote to delete the cuts, there is likely to be a battle royal between the Lords and Commons when the Bill returns to the Commons, where the government will presumably seek to restore them. Fortunately or otherwise, the same Bill provides for the abolition (euphemistically described as the ‘replacement’) of the scandalous system of Indeterminate Sentences for Public Protection, or IPPs, under which nearly 7,000 men and women are crowding our jails in preventive detention, despite having in most cases completed their punishment for the offences they have committed. Those who care about justice must hope that abolition of IPPs will not fall victim to a battle between the two Houses over legal aid, which has nothing to do with indeterminate sentences: these are an ugly blot on our justice system and Mr Clarke, the coalition’s house liberal, is absolutely right to want to get rid of them.
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It may be some time before we know why the Italian cruise ship Costa Concordia hit the rocks in one of the biggest ever disasters in the world of cruising. Nor do we know yet why the evacuation of the ship seems to have been so chaotic, although some survivors are already being quoted as claiming that there had been no boat drill since the start of the cruise several hours earlier. Costa executives, currently no doubt unusually busy, can be forgiven for not yet having removed from the Costa website the page devoted to the joys of cruising on Concordia:
It’s here, on this futuristic and exclusive ship, that the fun, relaxation and excitement of a special holiday take shape. Imposing and majestic, Costa Concordia is one of the biggest ships in the Costa fleet, a real floating temple of fun that will amaze you. Wellness, sport, entertainment and culture: a thousand different experiences on a unique holiday await you on board Costa Concordia.
Excitement indeed, and ‘a thousand different experiences’! And, as the Costa website also promises:
Costa sails always with you: Stay connected from wherever to start your holiday right now! Immerse yourself in the world of Costa Cruises …
According to Wikipedia, Costa Cruises is part of the predominantly American Carnival group, which comprises eleven individual cruise line brands (including Cunard and P&O Cruises), operating a combined fleet of over 100 ships with a total of over 190,000 cabin berths. Carnival Corporation and Carnival UK control operations in North America and the UK, while Costa Cruises Group, based in Italy, control operations in the rest of Europe. The latter is responsible for operation of Costa Cruises in Italy, AIDA Cruises in Germany and Ibero Cruises in Spain. AIDA was previously a subsidiary of P&O Princes Cruises PLC, being transferred to Costa following the merger of Carnival Corporation and P&O Princess in 2002. Ibero Cruises is a new brand, created in 2007 as a joint venture between Carnival Corporation and Orizonia Group. Tracking down the ultimate responsibility for what happened to Costa Concordia will be no simple matter.
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Returning to Scotland for a moment, lovers of the natural beauty of the Lanarkshire landscape are appalled by the threat to one of its most outstanding and historic beauty spots posed by an imminent application for planning permission to undertake opencast sand and gravel quarrying on a vast scale in the immediate vicinity of the Falls of Clyde. This is officially designated a UNESCO World Heritage Site, yet the Lanarkshire and Scottish planning and preservation authorities mostly seem to have been persuaded (how?) that there is no need to object to the quarrying application. Luckily a professor at nearby Glasgow University (and an old friend), Mark Stephens, has set up a campaign, Save Our Landscapes, to try to save the Falls of Clyde and the surrounding area from ruin. As another distinguished economist has pointed out in a letter to The Scotsman, there is plenty of sand and gravel all over (or under) Scotland, and no need to pick on an area of special natural beauty to dig it out. Please have a look at the Save Our Landscapes Facebook page, and if you’re convinced by it, write a letter to The Scotsman or the Glasgow Herald, or to your MSP (if you live and vote in Scotland), or to South Lanarkshire Council, or to Scottish National Heritage (“We are the Government funded body that looks after all of Scotland’s nature and landscapes across all of Scotland for everyone“), urging that the quarry company, Cemex, be told to look elsewhere for their sand and gravel.
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As a consequence of trouble with ageing, arthritic fingers plus outstanding filial generosity, most of this web post has been produced by dictation to a program of voice recognition software, Dragon NaturallySpeaking, absolving me from almost any need to hammer away at a keyboard. Initially sceptical about the possibility of any software reproducing my dictation without the need for me to spend as long correcting it as it would have taken to type it in the first place, I have been dazzled by the eerie accuracy with which this disembodied secretary reproduces virtually every word I say, down to the last name and comma. You have to ‘train’ the thing to get used to your tone of voice, accent, vocabulary and normal volume, by reading some prose to it and giving it some documents that you have written for it to scan and commit to memory. Once you have done this, it seems to know what you’re going to say even before you have said it. However quickly you type, Dragon will reproduce your dictation at 10 times the speed. No, I don’t have shares in the company that produces Dragon, so I feel free to recommend it to those whose typing is substandard or whose eyesight is beginning to fail, condition all too common in my age group. Just speak up!
The UK political parties have suddenly woken up and discovered an imminent threat to the integrity of the United Kingdom: the Scottish SNP government’s pledge to hold a referendum on independence for Scotland within two or three years. We have seen a typically aggressive and politically insensitive opening barrage from David Cameron, followed by markedly more conciliatory exchanges between the Scottish Secretary at Westminster and Scotland’s First Minister, Alex Salmond, in Edinburgh, together with the publication of a UK consultation document (pdf) setting out the UK government’s proposals. From these it has become clear that there are only two really difficult issues separating the Scottish and UK governments on the question of the referendum: its timing, and the questions to be asked in it. There are other differences between the governments, but it looks as if those should be able to be resolved in the discussions between them to which both governments have already agreed.
Timing of the referendum
Alex Salmond has now said that he proposes to hold the referendum in the autumn of 2014. The British government position is that it should be held much earlier, on the grounds that it’s desirable to end the uncertainty about Scotland’s future as soon as possible, since such uncertainty inhibits investment and other business decisions. The UK government also claims that the real reason for the SNP’s wish to postpone the referendum until late 2014 is that there is currently no majority in Scotland for independence, and that Salmond hopes that support for independence will grow sufficiently for him to get a majority for it in a referendum held later rather than sooner. No doubt this is indeed the case: but there is nothing disgraceful or unusual about timing a referendum in such a way as to maximise the chances of getting the result you want. Since this is primarily an issue for Scotland and the Scottish people, it seems unreasonable and oppressive for a decision on timing to be forced on Scotland by the UK government against the wishes of the duly elected Scottish government.
The device which the UK government proposes to use in order to force the referendum on Scotland earlier than the Scottish government wishes is the inclusion in the draft Order in Council empowering Scotland to hold the referendum of a deadline, after which Scotland’s power to hold a referendum on independence will lapse. It seems to me clear that the Scots have every right to resist this imposition on their government’s right to decide the timing of the referendum. If the UK government persists in trying to make this a condition of giving the Scottish government the legal power to hold a referendum, the effect is likely to be to increase support for Scottish independence among those who are at present undecided. It will be seen as a prime example of ‘English’ interference in Scottish affairs.
The questions to be asked
Alex Salmond has repeatedly suggested that “at present” there is a case for including among the options on offer in the referendum what has become known as ‘devo max’ – i.e. a substantial increase in the powers devolved from Westminster to the Scottish parliament and government, including especially additional powers over taxation and borrowing. The UK government opposes this, claiming that the only way to be sure of getting a clear and decisive result is to put to the Scottish people in the referendum a straight choice between independence and the status quo.
Opinion polls and most commentators agree that there is considerable support in Scotland for some kind of devo max, and that if devo max were to be offered as an option in the referendum, it would probably attract considerably more votes than straight independence. Alex Salmond’s (distinctly non-committal) suggestion that devo max might be offered as an alternative to independence is generally, and probably rightly, regarded as an insurance policy against the SNP ‘losing’ the referendum in the event that there is no majority for independence. The UK government presumably hopes that by seeking to restrict the choice in the referendum to only two options, independence or the status quo, the issue of independence for Scotland will be put to sleep for a generation: at present the opinion polls suggest that barely a third of Scottish voters would vote for independence if the referendum were to be held now. Westminster’s strong objection to the inclusion of a devo max option is less easy to understand. The fear of an inconclusive result if there are three options on the ballot paper (independence, devo max, or the status quo) may be genuine, but there seem to be no grounds for overruling the Scottish government’s judgement on this. Equally, it would be difficult to argue that a generally acknowledged wish for greater devolved powers among the Scottish people should be ignored or denied expression. This would inevitably be interpreted as ‘English’ unwillingness to give up more powers to interfere in Scotland’s internal affairs.
The UK government’s consultation paper includes in its draft Order in Council a provision that “There must be only one ballot paper at the referendum, and the ballot paper must give the voter a choice between only two responses.” Like the crude attempt to overrule the wishes of the Scottish government on the timing of the referendum, this proposed restriction of the number of options to be offered in the referendum, contrary to the provisional intentions of the Scottish government, seems likely to be resented in Scotland, and to run the risk of encouraging additional support for independence.
Status of the referendum
Alex Salmond has suggested in the past that while Scotland has no legal power under devolution to hold a binding referendum on independence, there is no reason why the Scottish government and Parliament should not hold an advisory referendum to establish the wishes of the Scottish people on the independence issue. The UK government contests this view, arguing that even an advisory referendum would exceed the powers of the Scottish parliament and government under the devolution laws. The UK consultation document maintains that the distinction between a binding and an advisory referendum is ‘artificial’: either, it says, would be open to a challenge in the courts as being beyond the powers of the Scottish Parliament and government.
Whatever the strict legal position on this, the reality is surely that the initial referendum on independence will in practice be advisory only. If its result shows a clear majority of Scots in favour of independence, the next step will have to be a difficult and probably protracted negotiation between Holyrood and Westminster to determine the terms of the separation between Scotland and the rest of the UK. Innumerable knotty issues will need to be settled, ranging from how the U.K.’s national debt and the revenues from North Sea oil are to be divided up, to the future of the Scottish regiments in the British Army and British defence installations in Scotland, with hundreds of other practical matters requiring decision in between. Much will depend on the attitude of the UK government at the time – not necessarily the present coalition government of David Cameron – to the terms that are to be offered to Scotland: these could be generous and constructive, in the interests of future amity and collaboration between the two countries after independence, or vindictive and punitive, reflecting the anger and resentment that will no doubt be felt by many in the rest of the UK, especially in England, over having been spurned by the Scots. If Westminster adopts a hostile and confrontational attitude to the independence negotiations, it might even prove impossible to reach agreement on every detail of the arrangements for Scottish secession. Such a deadlock would prompt a constitutional crisis of immense proportions. Whatever the legal position, it would obviously be intolerable for the English (and the rest of the UK) to appear to be resisting the clearly and democratically expressed wish of the majority of the Scottish people for independence.
Assuming, however, that agreement were eventually to be reached on the terms of Scottish separation, those terms (especially if some of them were controversial and likely to be widely opposed in Scotland) would presumably need to be put to the Scottish people for acceptance or rejection in a further referendum, which this time would have to be legally binding. At the first referendum, whether in the autumn of 2014 or earlier, Scots would be voting for or against independence without knowing in any detail what independence would actually entail, since the full implications of independence will remain to be negotiated with Westminster. Consequently, the first referendum, if it results in a majority for independence, cannot be regarded as a binding decision that Scotland must become independent: it will simply establish the wishes of the Scottish people as a necessary basis for the subsequent negotiation with Westminster of the nuts and bolts of secession, if the referendum goes that way. The UK consultation document is misleading when it describes the distinction between an advisory and a binding referendum as artificial: the distinction is real, but it seems to have no practical effect, since in the nature of things the forthcoming referendum can’t itself be binding. It must be subject to the outcome of subsequent negotiations, if it results in a majority for either devo max or independence. There is however no reason why this should become a bone of contention between the UK and Scottish governments: both these have already agreed on the need for consultation between the two governments over the power to hold a referendum and to determine such matters as its timing and content.
The underlying issue: Scottish independence
It would of course be wrong to suggest that there is no fundamental or irreconcilable difference between the principal UK parties on the one hand and the SNP government at Holyrood on the other. On the substantive issue of Scottish independence, they are clearly at opposite poles. The debate on the practical implications of Scottish independence, including the question of the terms on which Scotland could expect to be admitted to the European Union as a new full member, has only just begun in the UK outside Scotland. It’s possible that as these issues get to be clarified in the course of the coming debate, enthusiasm for independence in Scotland may be somewhat damped down. Alternatively, if the UK government’s current hard line on timing and the questions to be put in the referendum continues, it is likely to generate such resentment in Scotland that enthusiasm for independence may actually continue to grow. To a large extent, that is in the hands of Mr Cameron and his colleagues. But it provides the UK Labour Party, which also of course wishes to preserve the integrity of the United Kingdom, with an opportunity to influence the UK government’s approach to the referendum in the direction of co-operation and moderation. It’ll be interesting to see whether Ed Miliband has the breadth of vision to renounce party point-scoring and to assume the role of conciliator in the national interest at a time when the future unity of the country is more seriously challenged than for many decades.
Personal post-script: Together with a very small group of other bloggers and commentators outside Scotland, I have been seeking to encourage debate on all these issues ever since the SNP’s sweeping victory in the Scottish elections in May 2011: my blog post at http://www.barder.com/3217 at that time and my letters in the Guardian and the Financial Times, reproduced here and here, will all bear re-reading. I make no apology for regarding the prospect of Scottish secession from my country with utter loathing: for me as an English Briton, Scotland is as much an intrinsic and much valued part of my homeland as Cornwall or Manchester, and its loss would be like an amputation. I strongly favour devo max (i.e. the grant of full internal self-government to Scotland) as not only a price well worth paying for the preservation of the unity of my country, but also as intrinsically desirable both for Scotland and also for the other three nations of the United Kingdom, including England. Full internal autonomy for all four nations would constitute a UK federation, which is the logical conclusion of devolution and in the medium term the only possible durable, democratic relationship between the component parts of the United Kingdom. The achievement of devo max for Scotland would surely sharpen the appetite of the English for the same rights of self-government, with an English parliament and government, to match those already enjoyed by the other three UK nations, thus bringing us appreciably closer to our federal destination. How sad that not a single major UK political party has yet grasped the logic and benefits of such a vision!
I’m going to take November off. For some time now I’ve been having tiresome problems with my hands and fingers — nothing that wouldn’t quickly be put right by becoming ten years younger, but failing that remedy, increasingly uncomfortable. Arthritis, inflammations and ganglions all contribute, and some of these may or may not respond to a month of injections, icing, physiotherapy and anti-inflammatory unguents of varying kinds.
In addition to these palliatives I have decided to take a month off from the computer keyboard, to give the fingers and wrists a rest. I’ll read my emails once a day, but not reply to them. No more emails from me, no more blog posts or responses to your and others’ comments, until December at the earliest. If you urgently need a reply from me on some immediate issue, let me know by email, text or telephone and I’ll use Skype either to telephone you back or, ideally, to Skype you (loud bangs and unprotected ears during my national service in the army half a century ago pretty much prevent me from hearing anything useful on my ordinary telephone now). My Skype name is bbarder, but I shan’t be online much for the next month apart from reading emails and occasionally Skyping.
No doubt many of you will welcome a rest from my messages and posts as much as I’m looking forward to a chance to read some of the books long awaiting my attention on the bookshelves and in my Kindle.
I hope to be back in time to wish you a happy Christmas. Meanwhile, as they say over the loudspeakers, thank you for your attention. And please don’t respond to this with messages of sympathy: I’ll take those as read, and anyway it’s not that bad!
All the best
Indeterminate Sentences for Public Protection (IPPs), which keep thousands of people indefinitely in prison long after they have been punished for their offence, inflict needless misery and injustice on IPP prisoners and their families. They urgently need to be replaced by a fairer system of sentencing. The Justice Secretary, Kenneth Clarke, has promised to do just that by an amendment to be tabled soon to a Bill that is now before Parliament. There’s a danger that Ken Clarke’s unpopularity with the right wing of the Conservative party and the more rabid of the tabloids, and right-wing distrust of his enlightened proposals for penal reform generally, may frighten No. 10 Downing Street, the Home Secretary, the Labour opposition and even the LibDem members of the coalition government into opposing the replacement of IPPs, forcing Ken Clarke either to abandon it or to water it down in a way that could make it virtually meaningless.
So now is the moment for all liberal-minded people who recognise the indefensible injustice of IPPs to take urgent action to stiffen the government’s support for its own policy, and to encourage MPs to resist the inevitable clamour from the primitives on the Tory back benches and in the tabloids. Please spare five or ten minutes to email or write a letter to your MP, especially if he or she is a LIbDem. Here is a suggested form of words that you could either copy-and-paste into an email or letter, or else re-write in your own words:
IPPs: Suggested text of email or letter to your MP and other MPs
I am writing to you as my Member of Parliament to appeal for your support in Parliament for the earliest possible replacement of Indeterminate Sentences for Public Protection (IPPs), as envisaged by the Justice Secretary, the Rt Hon Kenneth Clarke QC MP. There are well over six thousand people with IPPs locked up indefinitely in our badly overcrowded prisons who have no idea when, if ever, they can hope to be released. Of these, well over 3,500 have already served their ‘tariffs’ (the punishment part of their sentences), and their numbers are growing. They remain incarcerated not as punishment for any offence they have committed but because the Parole Boards can’t be satisfied that if released they won’t reoffend, which is obviously impossible for a prisoner to prove. Only a minuscule proportion of the thousands of offenders given IPP sentences have ever been released, even when the original offence may have been relatively minor.
This is a form of preventive detention such as we have never before seen in Britain in peace-time and rarely even in wartime. It contributes significantly to over-crowding in our prisons and causes resentment of its obvious injustice which makes rehabilitation far more difficult. The uncertainty over any hope of ever being released causes misery amounting almost to torture for the wives, husbands, partners, parents and children of those who have been subjected to this nightmarish punishment. Replacing it with fairer determinate sentences would help to relieve prison over-crowding, greatly reduce the agonising uncertainties that inflict such misery and injustice on IPP prisoners and their families, save public money, reduce reoffending, and remove an ugly blot on our system of justice.
I would be grateful if you would pass this message to the Rt Hon Kenneth Clarke QC MP, Lord Chancellor and Secretary of State for Justice, for his comments, in the hope that he will take urgent action in accordance with his undertaking to include provision for the replacement of IPPs by determinate sentences in the Legal Aid, Sentencing and Punishment of Offenders Bill which is now going through Parliament.
You can get the name and email and postal addresses of your MP by visiting http://www.theyworkforyou.com/mps/ or http://www.writetothem.com/, or very often by Googling the MP’s name. Please remember to include your name and address so that your MP can see that you are one of his or her constituents. Even if you have written to your MP in the past about this, please write again now, perhaps referring to your earlier message and any reply that you received then.
To make your appeal even more effective, please send a copy of it for information to The Rt Hon Nick Clegg MP – Leader of the Liberal Democrats, Deputy Prime Minister, Lord President of the Council and MP for Sheffield Hallam, email address: email@example.com, or by post to The Rt Hon Nick Clegg MP, Leader of the Liberal Democrats, 4 Cowley Street, London SW1P 3NB. In copying your message to Nick Clegg, please urge him to treat support for Kenneth Clarke’s proposal to replace IPPs as a non-negotiable condition for the LibDems remaining in the coalition government: if the LibDems were to go along with a veto of this essential reform, they would lose all credibility as upholders of liberal principles.
You could also usefully copy your email or letter to the Labour Opposition’s shadow Justice Secretary, The Rt Hon Sadiq Khan MP, email address: firstname.lastname@example.org, or by post to The Rt Hon Sadiq Khan MP, House of Commons, Westminster, London SW1A 0AA. Alternatively email The Rt Hon Ed Miliband MP, email@example.com, or write to The Rt Hon Ed Miliband MP, Leader of the Opposition, House of Commons, Westminster, London SW1A 0AA. The Labour leadership has inexplicably been very lukewarm about Kenneth Clarke’s penal reform proposals, but you could point out to Ed Miliband or Sadiq Khan that there can be no possible justification for Labour not to support the replacement of IPPs against the likely opposition of illiberal right-wing elements with which Labour has nothing whatever in common.
If you have any doubts about the shocking injustice of indeterminate sentencess, please read the section on IPPs in an article by the barrister Philip Rule in the September issue of Inside Time, or any of the posts on the subject on this blog, such as here and here (including the comments appended to them, and my responses to the comments). There is also much useful information on the Facebook page of the Emmersons Solicitors’ campaign against IPPs, here. (In response to recent comments on this blog I suggested that it was a bad time to revive the campaign against IPPs at a time when Ken Clarke was embroiled in a controversy over the Human Rights Act and Theresa May’s cat, with the prime minister apparently backing Mrs May. But the situation has changed completely in the last three or four days and it is absolutely essential to pile on the pressure now for IPPs to be replaced.)
Any day now the Justice Secretary, Kenneth Clarke, is expected to table an amendment to the Bill to include the replacement of IPPs along with his other sentencing reform proposals. Here is an opportunity, not likely to be repeated, to do something concrete to influence events and to help to remove a monstrous blot on our criminal justice system. Please take the time to act now, while there’s still time.
Update (14 Oct 2011): An MP who received a constituent’s letter based on the text suggested in my post (http://www.barder.com/3331) has replied rejecting two of its criticisms of IPPs as “false” (while accepting that there are other, legitimate, grounds for criticising IPPs such as failing to make available courses in prison whose completion is required before parole boards will consider release).
The MP’s first point of disagreement is that “The principle of detention until and unless the Parole Board is satisfied as to risk is not new and underpins the life tariff scheme that was introduced at the time of the abolition of the death penalty.” But it is no part of the case against IPPs that its tariff system is ‘new’, and its use with prisoners serving life sentences in no way justifies applying it to those who have by definition been sentenced for much less serious offences than those attracting a life sentence. A life sentence is basically what it says: society’s judgement that the offence — such as murder, which carries a mandatory life sentence — is so grave that he who commits it must be imprisoned for the rest of his life. In practice there may be varying numbers and kinds of extenuating circumstances surrounding each individual murder, and varying grounds for thinking the murderer likely or unlikely to commit another murder, and this is reflected in the tariff system which allows the offender, subject to certain conditions, to be released after a set number of years, although always subject to being recalled to prison if he breaches the terms of his release. So for a lifer conditional release from prison before death is a privilege and an act of conditional clemency, not a right: imprisonment for life remains the essence of the sentence. (Whether it is right for parliament to force judges to impose a life sentence for every single murder, regardless of individual circumstances, is a completely different issue, unrelated to IPPs.)
IPP sentences are completely different. The tariff set for an IPP represents the punishment element of the sentence. Once the tariff (whose length reflects the degree of gravity of the original offence) has been served, the offender has been duly punished and has paid his debt to society. The unique feature of the IPP is that even after having undergone his punishment, the IPP prisoner is still kept in prison, no longer as a punishment but because society is afraid that if released he might reoffend, and accordingly sets a series of quite unrealistic tests that have to be passed before the prisoner may be released. He is no longer in prison as a punishment but purely in preventive detention. What’s worse, the onus is on the prisoner to satisfy the parole board that if released, he won’t reoffend: the parole board will automatically reject an application for release, even if there are no specific grounds for supposing that the prisoner will reoffend, unless the prisoner can satisfy the board that he won’t reoffend, which is an inherently impossible demand. From the parole board’s point of view, agreeing to release an IPP prisoner is risky: if they get it wrong, and the prisoner does reoffend after release, they will be blamed for their poor judgement; whereas if they refuse to agree to his release, they can never be blamed, because no-one can ever know whether or not the prisoner would have reoffended if he had been released. Hence the abnormally small number of IPP prisoners who have ever been released. The presumption of innocence, even innocence of hypothetical future offences not yet committed, is denied to the IPP prisoner. This is rank injustice, straight out of Alice in Wonderland, or Kafka, and it’s not in any way comparable with the tariff system for those serving life sentences.
The MP’s other criticism is to deny the assertion in the post’s draft letter that in some cases of IPPs “the original offence may have been relatively minor“. There’s one sure way to measure the seriousness of the offences that have attracted IPP sentences: namely, the length of the tariff. The shorter the tariff, the less serious the offence in the eyes of the judge. According to Ministry of Justice figures, in March this year there were 1,550 IPP prisoners with tariffs of less than 2 years, and 3,200 equal to 4 years or less. Only 50 — five zero — had tariffs of 10 years or more. The average tariff length for IPPs imposed before the minimum tariff for an IPP was made longer (to stop IPPs being awarded for really trivial offences) was three years, and even after the change it was only four years. Before the change in the law, people were being given IPPs with tariffs of just a few months, and nearly all of these are still in prison, in some cases three or more years after the end of their tariffs. As mentioned in my post, last March there were no fewer than 3,500 IPP prisoners who had served out their tariffs, having undergone their punishment, but were still in prison. In the face of these figures, it’s impossible to deny that many IPPs are being awarded for “relatively minor” offences or to assert that IPPs are given only for really serious crimes.
As the MP’s reply acknowledges, the failure of the prison system to provide all IPP prisoners with rehabilitation courses whose completion parole boards demand as a condition for even considering an application for release is indeed one of the indictments of the whole IPP régime. But it is by no means the most serious. The whole thing is a denial of the most basic principles of justice. It is intellectually and morally untenable. It should go.
PS (24 Oct 2011): I have put some further relevant extracts from recent House of Commons notes and papers on my website: see http://bit.ly/nI572h.
Yesterday Ed Miliband and the usually equally reliable shadow Justice Secretary, Sadiq Khan, demanded that the prime minister should sack Ken Clarke, the Justice Secretary, over his remarks about rape and his proposals for changes in sentencing policy (not just in rape cases). This was an unpardonable example of cheap party point-scoring at the expense of the public interest, and a serious error of judgement on both their parts.
The charge against Clarke by such authorities on social policy as the Sun newspaper and the right-wing Tory cave-dwellers is that by acknowledging the obvious truth that some rape cases are more serious than others, he implied that some rapes are not serious at all. In fact he implied nothing of the sort, and if he initially expressed himself clumsily, he made ample amends subsequently by stressing, as anyone of sound mind must, that rape is serious in any circumstances. The proposition that all rapes are equally serious is however plainly ridiculous.
On his policy suggestions (which is all they are at this stage), Ken Clarke made it amply clear that the purpose of increasing the sentence discount for pleading guilty at the first stage of a rape charge would be to give an incentive to defendants to plead guilty and thus spare victims the added trauma of questioning and cross-examination both during the investigations and often eventually in court. Whether the increase in the discount from one-third to a half, where the guilty plea is entered at the earliest stage, is too great is a subjective matter on which decent people may legitimately disagree. But it’s clearly not an idea whose airing could possibly justify dismissing the relevant minister.
By attacking Clarke and calling for his dismissal, Sadiq Khan and Ed Miliband made several significant errors. They gave the impression that they thought Clarke had said things about rape which he had neither said nor implied. They themselves gave the impression of opposing a possible policy change, designed to spare rape victims unnecessary further trauma, without even considering its possible benefits, purely to curry favour with the most reactionary of the feral tabloids and to score points against the government. They denounced Clarke for seeking to reduce the numbers of people in prison by increasing the sentencing discount for pleading guilty, thereby strongly implying that Labour is against any reduction in the shamefully excessive prison population, and thus putting the party once again at odds with all right-minded people with a social conscience, with every authority on penal policy and with every civil rights organisation. And they accused Clarke of being motivated purely by a desire to save public money by sending fewer people to prison — as if saving public money by a patently desirable liberalisation of prison policy was a crime. This is a charge that Labour needs to abandon once and for all.
But worst of all, Messrs Miliband and Khan have failed to recognise that the best hope of long overdue penal reform in this country lies squarely in Ken Clarke remaining in office as Justice Secretary, with sufficient all-party backing to enable him to carry through the reform proposals in his Green Paper on sentencing policy issued a few months ago. These include sensible practical changes designed to reduce the numbers of people unnecessarily sent to prison and above all to bring down the present horrifically high rates of reoffending. They also include measures to reduce sharply the numbers of sentences of indefinite imprisonment — actually an indefensible system of preventive detention — and to reform the unjust, incompetent and repressive ways in which such sentences are administered. If Ken Clarke is forced out of his job, it’s almost inconceivable that his successor would have the liberal instincts and political weight to get these desperately needed reforms past the reactionaries in the Tory party and the media.
For all these reasons, the action of the leader of the opposition and the shadow justice secretary in actually increasing the pressure on Clarke to resign (or on the prime minister to sack him) was wrong on every possible count. Most of the reforms espoused by Clarke have been made urgently necessary by ill-conceived and illiberal measures for which a succession of disastrous New Labour home secretaries and a justice secretary were responsible. By seeming to oppose their reform, the Labour front bench is giving the impression that the party leadership has learned nothing from the Labour government’s dreadful record on human rights and civil liberties, and will oppose any attempt to reverse it.
It’s time now for Labour to issue a ringing endorsement of Clarke’s reform proposals and to promise the beleaguered Justice Secretary full support against the right-wing enemies of reform. Labour needs to acknowledge unambiguously that there are far too many people in prison who ought not to be there, that reoffending rates can and should be brought down and that there is no place in a decent democratic society for preventive detention. In doing so, the party would be fulfilling the explicit promise in Ed Miliband’s acceptance speech at the party conference immediately after he was elected leader. He knows, as we all do, that by returning to its historic commitment to justice, civil rights and enlightened penal policies, Labour will be accused by the Tories and probably the LibDems of doing a U-turn and admitting that Labour in government committed serious errors that now have to be put right. We all know that Labour’s former home secretaries will fight tooth and nail to defend their shoddy records and avert any implied or explicit repudiation by Labour’s new leaders of the harm they did. But we also know that when you have dug yourself into a hole, the best thing to do is to climb out of it, not to keep on digging. In this context, that’s not only the best practical course: above all, it’s the right one.
By their actions yesterday Ed Miliband and Sadiq Khan have aroused the suspicion that they are once again heading down the wrong path on penal policy and reform. If this continues, it will be a disaster for the party, and potentially also for the country and for justice. Fiat justitia, ruat caelum!
Update (20 May 2011): I have now listened carefully to the whole of the Radio 5 Live interview of Ken Clarke by Victoria Derbyshire (http://www.bbc.co.uk/podcasts/series/victoriad, victoriad_20110518-1416a.mp3) and I have to say that I found nothing remotely objectionable in anything whatever that Clarke either said or implied. The accusation that he said or even hinted that he regarded some kinds of rape as not serious is absolutely unfounded: indeed he said with emphasis at least twice that all rape is a serious crime deserving severe punishment. He drew a distinction between different kinds of rape, some aggravated by violence and lack of consent and others not, as the explanation for sentences for the crime of rape varying in severity. Anyone who professes to be offended by that must be living on another planet.
Oh, no, not that wedding again? Calm down, dear, it’s only a footnote. According to the tabloids and the internet, Pippa Middleton, sister of the new Princess William formerly known as Kate, stole the show yesterday for many viewers, not only more than rivalling her sister’s good looks but prompting excited comments about a particular aspect of her figure. A Daily Mirror headline, for example, screams:
Pippa Middleton bridesmaid dress sparks Facebook fan page for her bottom
and sure enough, there’s the facebook page in question, already marked as ‘liked’ by more than 44,000 connoisseurs of the anatomical feature in question. But on a more elevated level, the catapulting to national celebrity status of the lovely Pippa must have sent at least some of us to our collected poetry of the now much neglected Robert Browning:
from Pippa Passes
The year’s at the spring
And day’s at the morn;
Morning’s at seven;
The hillside’s dew-pearled;
The lark’s on the wing;
The snail’s on the thorn:
God’s in His heaven—
All’s right with the world!
– of which the last couplet at least has achieved immortality, if the rest of the long narrative poem hasn’t.
SRD GIRL. [To PIPPA who approaches.] Oh, you may come closer: we shall not eat you! Why, you seem the very person that the great rich handsome Englishman has fallen so violently in love with! I’ll tell you all about it.
Here Browning evidently foresees the impression that some observers claim to have got from the proceedings yesterday that Prince Harry, brother of the groom, sharing responsibility for the young bridesmaids and page boys with Pippa, the sister of the bride, appeared somewhat smitten by her, being overheard (or lip-read) to whisper to her a gallant tribute to her beauty, although whether Browning’s description of young Harry as “the great rich handsome Englishman” fits the bill is for others to judge. Anyway, I doubt if Harry’s long-time girlfriend Chelsy Davy has anything to worry about.
Cole Porter also obviously had a premonition, putting words into the mouth of the groom on the red-quilted palace balcony (only confusing the prince’s nickname with his Dad’s):
So, kiss me, Kate, thou lovely loon,
‘Ere we start on our honeymoon.
So kiss me, Kate, darling devil divine,
For now thou shall ever be mine.
But let Shakespeare have the last word, even if he also gets a little confused over who would be speaking — William, obviously, not Harry, still on the balcony:
Kate, I cannot look greenly nor gasp out my eloquence, nor I have no cunning in protestation; only downright oaths, which I never use till urged, nor never break for urging. If thou canst love a fellow of this temper, Kate, whose face is not worth sun-burning, that never looks in his glass for love of any thing he sees there, let thine eye be thy cook. I speak to thee plain soldier: If thou canst love me for this, take me: if not, to say to thee that I shall die, is true; but for thy love, by the Lord, no; yet I love thee too…
Now, welcome, Kate: and bear me witness all,
That here I kiss her as my sovereign queen.
Well, his queen-to-be, anyway.
It was magnificent and on the day it went without a hitch. Good luck to William and Kate, whose patent happiness together made a few million others happy too, a matter not to be sneezed at. But some of the underlying politics were darker.
Like all such patriotic union-jack-waving occasions, hyped up by television and the press until one felt like being force-fed with clotted cream, this one will have given a boost to the government’s popularity almost as potent as if David Cameron had just liberated the Falklands. There’s no logic in it, but there it is. It’s a highly convenient time for the Tory-led coalition to get a boost, just as the evidence begins to come in that its ill-judged, self-defeating economic and fiscal policies are choking off growth and recovery, its doctrinaire plan for effectively privatising the National Health Service is beginning to fall apart, and the impetuous decision to commit British air and naval power, what’s left of it, to the defence of civilians in Benghazi has increasingly obviously landed us in gross mission creep and yet another military quagmire. On top of that, the AV referendum is imposing genuine strains on the coalition’s marriage vows. The royal wedding euphoria will help for a while to compensate for all these Westminster woes.
On the other hand, Martin Kettle in the Guardian makes a convincing case for the proposition that the Tories are full of self-confidence now that they’re back in the saddle, and that the royal wedding will have cemented in the feeling that life has returned to normal after the brief aberration of Labour government. Cameron has succeeded beyond all rational expectations in capturing the centre ground from Labour, and clearly means to keep control of it by constant repetition of the myth that it was Labour’s failures which brought Britain almost to its knees, with the implication, both implicit and explicit, that Labour must never again be entrusted with responsibility for the economy, once Cameron and Osborne have completed their rescue of it (with a little help from their junior coalition partners). Cameron’s other spectacular success — seducing the LibDems into the Tory embrace instead of having to rule as a minority government, vulnerable at any time to parliamentary defeat on controversial issues — further sidelines Labour by pushing into the far future any risk of a left-of-centre Labour-LibDem alliance against the Tories. The LibDems are now tarred with the Tory brush, perhaps irretrievably; they are compelled to join the Tories in defending the Tory record, and (even more usefully from Cameron’s point of view) effectively prohibited by their membership of the coalition from advocating radical changes of policy at future elections that would mean disowning what they themselves have been doing in government. Kettle reasons from this analysis that Labour’s only hope of regaining government may lie in the success of the AV referendum. He urges Labour supporters to take the long view accordingly, and vote Yes to AV. I’m not convinced by this argument, however. AV would inevitably bring more votes and seats to the LibDems, making single-party government even more unlikely: the LibDems, despite their present dire ratings in the polls and probably dire results in the elections on 5 May, would be overwhelmingly likely to hold the balance of power in any post-AV-election to the house of commons, with the ability to decide whether to hand the keys of No. 10 back to Cameron or to pass them over to Ed Miliband; and after (probably) five years locked in marriage to the Tories, forced to accept responsibility for virtually everything the Tories will have done, a transfer of affection to Labour would seem much more unlikely than likely. But Kettle’s arguments are certainly not to be lightly dismissed.
How does the Wedding come into all this? Very consistently. Not only is it a classically Conservative occasion, emphasising ceremonial, continuity, monarchy and triangular hierarchy, the supremacy of our social superiors: not only does its success seem to redound to the credit of the government of the day, like winning a war or the World Cup: but also the (surely deliberate) exclusion of any trace of a former Labour government from the spectacle reinforces the idea that Labour is discredited, exiled and irrelevant — in the sin-bin, off camera. It’s naive to suppose that the spiteful denial of invitations to the wedding for Blair and Brown, so that only Tory former prime ministers (Thatcher and Major) were invited, was an oversight or a clerical error. Martin Kettle sees in this, as in other aspects of the arrangements for the wedding, the anti-Labour hand of Prince Charles (“bad-tempered and self-pitying”, Michael White had called him earlier in the same issue; “reactionary” was Martin Kettle’s word for him) : I’m more inclined to see the arrogant and vindictive hands of Cameron and Osborne in it. Whoever was responsible, Martin Kettle’s harsh verdict is right: the failure to correct these two glaring omissions “only confirms the miserable, petty, ill-advised disdainful nastiness of the original deed.” Kettle sums it up: “Not inviting Tony Blair and Gordon Brown to the royal wedding, while inviting Lady Thatcher and Sir John Major, is a cold, calculated act of high establishment spite against Labour.”
Another related point, less obvious: we know that Ed Miliband was invited — he could hardly have been excluded, as leader of the opposition — and that he had accepted, promising to wear morning dress like the higher orders; but I have yet to find anyone who had even the briefest glimpse of him in the television coverage, in the Abbey. We saw plenty of Cameron and his sensible-looking wife, Ken Clarke (seemingly a non-singing member of the Abbey choir), Sir Elton John, royals galore (the lesser royals had arrived in a fleet of minibuses!) and of course those top celebs the Beckhams: but no sign of Ed. Perhaps Mr Miliband was strategically seated behind a pillar. Labour has been shown the red card for allegedly fouling up the economy, and sent off. Labour is simply invisible in the Tory game plan, and the scandalously partisan character of the wedding guest list was a singularly nasty part of it.
The extent of party political meddling in the guest list was amply confirmed by William Hague’s cowardly capitulation to media ignorance in ordering the withdrawal of the invitation to the hapless Syrian ambassador, casually ignoring the presence at the wedding of a host of ambassadors and assorted kings and sultans representing even more despotic and murderous régimes than Syria’s. It’s obviously Rule 1 for state occasions that you invite either all or none of the diplomats representing countries with which you have diplomatic relations, whatever you think of the human rights records of some of them. The moment you start treating formal invitations to formal occasions as a reward for good behaviour, you’re deep in a morass of invidious, inconsistent and indefensible judgements. The proffered excuse that this was not officially a state occasion is laughable: if it was not a state occasion, why were the whole diplomatic corps (except the Syrian, himself only uninvited at the last moment) and a dozen foreign heads of state invited to the wedding? This is an even more insulting excuse than the explanation for not inviting Blair and Brown that unlike Thatcher and Major, neither is a Knight of the Garter. What kind of fools do they take us for? As Simon Jenkins, gadfly Tory and former editor of The Times, put it with his usual incisiveness in another Guardian article, –
The global brain clearly has trouble dissociating the fascination of a happening from its significance, or otherwise. Confusion has certainly been sown by the wedding being attended, unwisely, by so many of the pseudo-trappings of statehood, such as the attendance of dotty foreign monarchs and dodgy ambassadors. This was bound to pollute a family occasion with political controversy, and so it has done. Whoever thought the occasion suitable to the diplomatic corps should be fired. William is not a serving monarch but a serving junior air force officer.
Simon Jenkins stresses in the same piece the essential triviality of the whole occasion, pouring scorn on the fantastic resources devoted to reporting it by, for example, the BBC, NBC (which he says flew over its entire anchor team) and most of the print media. The hours of time and acres of print devoted to speculation about the wedding dress, the bride’s hair style, and which units of the three armed services would be honoured by having their uniforms worn by the assorted princes who participated in starring or supporting roles — all these are indeed matters of the utmost insignificance. But it’s right to pay attention to an event which obviously made millions of people happy, if only for a day; which unarguably demonstrates that for all the antics and follies of some of its members, the royal family continues to exercise an almost mystical hold over a large section of the population, anyway in England; and which was expertly manipulated by an arrogant, cocksure and otherwise incompetent Conservative party leadership to promote the permanent banishment of Labour from the national scene. You’ve got to hand it to the Tory toffs!