Just a week ago (on 22 September 2005) I put a piece on Ephems about the implications of the German elections and their muddy results which, I argued, demonstrated the unsuitability of Proportional Representation (PR) as a means of choosing a government — however appropriate it might be for a debating chamber or even for one house of a bicameral legislature. This has so far prompted four meaty comments, cross-fertilising (and cross-fertilised by) links to similar debates taking place on other blogs, notably that originated by Jarndyce over at the Sharpener. Jarndyce’s original remarks and the (so far) 38 comments that follow them amount to a high quality seminar on the pros and cons of PR and the relative merits and demerits of First Past the Post (FPTP), the electoral system we currently use for electing the House of Commons and thence a government.
I’m biased against PR for all the reasons that I spelled out last week (and then some), but I’m bound to say that in the Sharpener seminar the case against PR does seem to emerge as the winner over that deployed by its advocates. The PR brigade’s main criticism of FPTP in Britain is that it produces governments elected on a minority of the votes, so that more people will have voted against the government and its party than voted for it — sometimes by a large margin. The FPTP supporters point out in reply that under FPTP, the party that receives more votes than any other almost always gets to form a government with a programme for which, again, more people voted than for any other, and with a sufficient majority in parliament to carry it out: whereas under PR, no party here (or for that matter in Germany) ever gets more than half the votes cast and therefore no party ever wins a majority of the seats in parliament, forcing the party leaders to negotiate coalitions after each election, the coalition emerging as the government having negotiated a compromise programme with elements from the programmes of the coalition partners, all of which will have had to drop elements of the programmes on which they fought the election: result, a government for which not a single voter voted (because the permutation of parties forming the coalition didn’t exist at the time of the elections) with a programme which was never put before the electorate and for which, therefore, not a single voter voted. The decisions on who forms the government and its programme are determined after the election by the politicians, not at the election by the electorate.
What with the disproportionate power to determine the outcome of the coalition-forming bargaining process after each election (and indeed between elections) conferred by PR on a third party (or combination of small parties) that receives, by definition, fewer votes than the two biggest parties, and the corresponding power conferred by PR on that smaller party to claim a permanent place in whatever coalition government takes power, regardless of its political complexion or programme, PR’s claims to be more democratic and representative than FPTP are exposed as painfully thin, or so it seems to me.
If the PR lobby had a convincing answer to these overwhelming objections, I’m sure Polly Toynbee (and Jarndyce) would by now have told us what it is. If that conclusion has emerged with greater clarity than before as a result of blogs and blogging, three cheers for blogging!
Brian
Anatole Kaletsky, always worth reading, launches an Exocet in today’s Times (29 Sept 05) at the socialist belief that health and education are best provided in the public sector and funded out of general taxation, not subject to what some of us see as the largely imaginary benefits of competition and the market (whatever their real benefits in core private sector activities). He credits Tony Blair, in his Brighton Conference speech, with having shed the confusion between ends and means implicit in this belief, defined by Mr Blair as the essence of New Labour, despite Blair’s carefully worded pledges never to allow NHS charges for treatment and never to return to school selection at 11: but he has his doubts about Gordon Brown:
For the Prime Minister there are now almost no taboos about means. He is ready to try whatever it takes to attain his “progressive ambitions”. Health services will increasingly be delivered by private contractors. “I will never allow the NHS to charge for treatment,” he said, but carefully left open the question of privatised treatment providers, or indeed of charges for “hotel services” as opposed to medical treatment, in the NHS. Schools will compete among themselves and seek private sponsors. “I will never return to school selection at 11,” he promised. But was he hinting at the possibility of selection, streaming and setting at 13, 14 or 16, reforms which could offer real hope of achieving the ultimate objective of improving standards of education and behaviour in secondary schools, especially at the lower end of the academic range? For the Chancellor, by contrast, the state control of health and education is still very much a matter of principle. State provision, and above all state financing, of these so-called public services — in reality some of the most personal and private services imaginable — is the remaining bedrock of his socialist beliefs. [My emphasis -- BLB]
If Kaletsky is right in this analysis, and especially if he is right in spotting handy loopholes in Blair’s pledges not to impose NHS charges and not to reintroduce schools selection at 11, then in the opinion of this unrepentant socialist, who cares almost as much about means as about ends, the sooner Gordon Brown replaces Tony Blair, the better.
Brian
A comment on an earlier Ephems entry has recently made the valid point that Tony Blair’s decision that the UK would take part in the American attack on Iraq did have a certain amount of respectable motivation, despite its apparent recklessness:
I am much relieved to find you are conceding that Prime Minister Blair may have had some respectable reasons for his apparently reckless decision to support the American assault on Saddam Hussein’s Iraq. I continue to wonder exactly why he took that decision and have never felt content fully to accept the reasons offered to the press, Parliament and the public (I think I have that in the right order). I continue likewise to think a modicum of restraint is called for when criticising an incredibly difficult decision before all the main relevant facts are in the public domain.
There’s a lot in that observation. I have always thought (contrary to the view of many anti-war campaigners) that there was a respectable and honourable case in early 2003 for the use of force against Iraq on the assumption, shared by virtually everyone from Hans Blix, Chirac, Putin, Schroeder, Blair and Bush downwards, that Iraq had WMD, had failed to get rid of them, was thus in breach of numerous mandatory UN resolutions, and would sooner or later let some of the weapons get into the hands of international terrorists. It was a logical inference from those beliefs that the longer action to rid Iraq of its WMD was delayed, the more costly in blood and treasure that action would become. On the evidence then available these were all reasonable assumptions, and indeed it would have been reckless to turn a blind eye to them. However, Blair’s great failure lay in not having insisted from the outset, as an absolute and immutable condition of UK participation in the use of force against Iraq, that military action must have the prior approval of the Security Council in a new and explicit resolution. To go ahead without it was a plain breach of our international law obligations: it was, and is, an illegal war and its authors are war criminals. It’s no good Blair arguing that we couldn’t get UN approval because France would have vetoed any resolution that would have granted it: that’s a disgraceful lie, as anyone who takes the trouble to read the transcript of the relevant Chirac television interview must realise. The question of a French veto never arose, because there was never anything approaching a majority in the Council for approving the use of force at that time. Most Council members wanted to give Blix and his inspectors more time to complete their work before deciding whether the use of force would be justified as a genuine ‘last resort’. They were absolutely right. Blix might well have concluded, if we and the Americans had allowed him another month or two, that Iraq didn’t in fact have any WMD (as we now know to be the case). In that event there would have been no possible casus belli. Had Blix reported after completing his inspections that there probably still were WMD in Iraq which Saddam still refused to destroy, and that Saddam was still not cooperating with the inspectors, there would probably have been a unanimous decision by the Council to authorise the use of force. It’s a tragedy that we shall never know which way it would have gone.
Why didn’t Blair make explicit UN approval an absolute condition for our participation? There have been suggestions that he was pressed by his officials and advisers to do so and that there was some dismay in Whitehall and even in No. 10 when he didn’t. I suspect that there was a mixture of reasons. First, he had boundless and characteristic confidence in his ability to persuade the Council to act in the way that he ‘passionately believed’ to be right, through a blend of his personal charm, the proven effectiveness of British diplomacy (especially after the incredible triumph of getting unanimous support for resolution 1441), and the strength of the arguments as he saw them. I doubt if it even occurred to him that after every nerve had been strained to secure UN approval, at the end of the day he might fail. Secondly, like every British prime minister since Suez, Blair regarded it as a top priority in British foreign policy to stick closely to the Americans unless there were the most powerful reasons for not doing so: Eden’s failure to obey this imperative in 1956 had had catastrophic consequences for Britain and for himself. Thirdly, I strongly suspect that when faced with Bush’s and his neo-cons’ absolute determination to go ahead and topple Saddam with or without UN approval, and finding himself an American hero because of his sturdy and loyal support for US policy and for robust action to deal with Saddam, his nerve failed him, and he couldn’t bring himself to lay down a condition that would have been treated with incredulous scorn by both the Bush administration and American public opinion. Lastly, the Kosovo experience, in which NATO collectively attacked Yugoslavia without any vestige of authority from the UN, may have led Tony Blair to assume that he could, if necessary, get away with it again. The failure was undeniably cowardly (and ultimately disastrous); but when you have been the recipient of a standing ovation and prolonged cheering in a joint sitting of both houses of the American Congress, in the presence of the President and his entire Cabinet and the Chiefs of Staff, perhaps it’s understandable that you hesitate to spit in their faces.
One of the many tragic consequences of that failure was that we shall never know whether Bush would have gone ahead with the attack on Iraq without British participation and support. Public opinion polls in the US at the time were registering a majority in favour of military action against Saddam, but only if America was acting with respectable allies – and British participation conferred the most persuasive possible respectability. The polls indicated a majority against military action by the US acting alone. If Britain had stood aside and argued for more time for the UN weapons inspectors before launching an attack, others such as the Italians and Australians might well have followed suit, especially if this had reflected an agreed EU position. There would have been intense pressure on Bush to hold back and wait for Blix’s verdict, in the hope of then gaining UN authority and, with it, British and other international participation in the attack and subsequent occupation. But it didn’t happen, and so these speculations about ‘what-if’ remain just that – speculation.
The other almost equally serious charge against both Blair and Bush is that they misrepresented (probably to themselves, as well as to public opinion in both their countries) the evidence of Iraq’s possession of WMD as strong and convincing when that evidence, as we now know, was actually thin, sketchy and largely unreliable. Bush did it because (as he never really sought to conceal or deny) the WMD issue wasn’t his main reason for deciding to topple Saddam, but he seems to have recognised that it was the only justification for the use of force capable of gaining UN approval, regarded by the Americans as a nice bonus if the Brits could deliver it, but not as in any way essential. Blair presumably did it because he was by that time too firmly committed to the Americans to back out, and it was too late to start laying down a condition (UN approval) that seemed increasingly unlikely to be satisfied, anyway for several weeks or months. Moreover, it seemed inconceivable that the evidence, however thin, could actually be wrong. That would have implied that Saddam had destroyed the WMD that he had undoubtedly possessed earlier, but that he had done so secretly, deliberately forgoing the opportunity to demonstrate to the UN and international opinion that he had in fact obeyed the demands of the UN resolutions, thus escaping from UN sanctions and the threat of military action against him which, if it materialised, would almost certainly spell the end of his régime and probably also of his life. Such apparently irrational behaviour by Saddam would have – indeed did – seem incomparably more improbable than the alternative hypothesis: that Iraq still had WMD, was determined to conceal them from the UN inspectors, and was therefore in serious breach of the mandatory resolutions of the Security Council. Such evidence as was available, even though thin, pointed to the latter hypothesis rather than the former. Only one voice with any claim to be heard, that of a former UN weapons inspector, the controversial Scott Ritter, was raised in support of the first proposition, that Iraq no longer possessed WMD, but his was massively outvoted by all the other authoritative voices saying the opposite. It was not irrational or perverse to base military action on the hypothesis that Iraq still had at least some of its WMD: but in the way it was done, it was illegal; and it turned out to be wrong.
Blair’s record in the run-up to war doesn’t show him to have been reckless, irrational, or dishonourable, at any rate in terms of his motivation. But it was a chapter of errors, failures of nerve and judgement and timing, of miscalculation of what the Security Council and international opinion generally could be persuaded to swallow, and of impatience. And for these failures a terrible price is still being paid.
Postscript: Immediately after posting this piece, I received a message recommending an interesting and important article in the Boston Review by Stephen M. Walt, the academic dean and Professor of International Affairs at the John F. Kennedy School of Government at Harvard University. The article, a critical review of American foreign policy across the board with numerous cogent recommendations for its reform and improvement, is well worth reading for its own sake; I mention it here because its main passage on the way the Bush administration handled the attack on Iraq (and how different things might have been if it had been done differently and more patiently) is remarkably accurately echoed in what I have written above, even though I had not read the Walt article when I wrote it.
Brian
26 September 2005
The following letter is published in The Times of 23 September 2005:
The Times, September 23, 2005
LETTERS TO THE EDITOR
Custody for terror suspects
From Sir Brian Barder
Sir, One of the most controversial of the Government’s latest anti-terrorism proposals is to extend the period in which a suspect may be held without charge for questioning and investigation from two weeks to three months (report and leading article, September 16).
This is clearly undesirable and the Home Secretary has signalled his willingness to consider a shorter period.But the present regime of control orders, unwillingly swallowed by Parliament last March on condition that it would be reviewed and could be amended or repealed late this year or early in 2006, is yet more undesirable. There is a strong case for trading the repeal of control orders, whose purpose is similar, in exchange for firm guarantees that terrorist suspects detained for questioning and investigation without charge for longer than two weeks would be effectively monitored by a security-cleared judge. The judge would have full access to the relevant investigation, and be mandated to order the suspect’s release at any time unless satisfied that longer detention was proportionate and genuinely necessary on security grounds, that the investigation was being pursued with maximum speed and vigour, and that specific charges and a jury trial were likely to follow.
Some of these safeguards are already included in the Government’s proposals. Detention in a limited number of cases under these conditions would be far preferable to the effective deprivation of liberty without charge or trial or prospect of trial that the pernicious control orders entail. It would be for the police and the security services to satisfy Parliament and public opinion that the three-month maximum which they seek is really necessary. But to end up with both control orders and extended detention for investigation would be intolerable.
BRIAN BARDER
Wandsworth, London
brianlb[at]ntlworld[dot]com
I recognise that those who are unshakably opposed to the idea of detention without charge or trial for longer than two weeks (or at any rate for as long as three months) may view the ‘deal’ that I propose in this Times letter – extended detention for investigation in exchange for repeal of the control orders legislation – as a betrayal. But we know that we are going to have to swallow some new measure in response to the London bombings, and an extension of investigative detention, if accompanied by rigorous judicial monitoring on the lines suggested in my letter, and if explicitly aimed at an eventual charge and trial, seems much less obnoxious than a renewal of the control orders régime. A case can undoubtedly be made for the former, especially if the 3-month maximum can be bargained down to 6 or 8 weeks. By contrast, there can be no case for control orders: harsh and indefinitely renewable restrictions on a person’s everyday life, imperilling his job, his relationships with family and friends, his reputation, his social life, his privacy – and all without any need to establish that he has committed or is even planning to commit any offence. There is a crucial difference between limited detention for investigation of a possible offence for which a suspect will ultimately be tried in court or else released, and the imposition of a control order which may permanently wreck his life without allowing him the opportunity to answer any charge against him. The first involves an obligation on the state to satisfy a court that a specific action in the past has been committed and that it is an offence under the law. The second depends on a politician’s suspicion, based on the suspicions of the security services, that a suspect is likely to commit an unspecified offence in the future, without any need to show that any offence has so far been committed, even under our increasingly sweeping anti-terrorism laws. Ruining the lives of people who have committed no offence, because of a politician’s belief that he can foretell the future, is no kind of justice. It should be swept away at the earliest opportunity, and that opportunity will arise in just a few weeks’ time.
Brian
23 September 2005
Jarndyce hits back elegantly and concisely at those of us who have pointed out that the German election results are a sharp lesson in the defects of proportional representation (PR) when it comes to electing a government with clear and effective policies. He claims that “The German result is irrelevant to the PR debate here in the UK, for at least three reasons:” —
1. Look at the numbers: two blocs of 35% are [?and] three of 10%, roughly. Would any reasonable electoral system dish out a majority government based on that spread? Should it, and still be able to call itself a democracy?
This correctly asserts the desirability of proportionality in a body which has to be broadly representative of the opinions of those of the electorate who vote, i.e. one which is there principally to voice opinions on behalf of the population at large. A good example would be a British elected second chamber. But the House of Commons and the Bundestag are not bodies like that. Proportionality and representativeness are not necessary, or even always desirable, in a body whose main purpose is to choose and then hold to account a government that can govern stably and effectively, carrying out the policies which it has offered to the electorate, almost always based on the party which has won more votes than any other.
Jarndyce refers with apparent approval to this from Paul Davies in Make My Vote Count:
Unlike Canadian elections, the German results actually mirror public opinion. The German electorate is genuinely split on the country’s future direction. But at least voters can begin dealing with their options in a political arena with a level playing field. It’s called democracy.
Again, this reflects the essentially confused view that an electoral college with the duty of choosing a government needs to ‘mirror public opinion’, whereas if it does so at all precisely, it will produce, as often as not, either fudge or paralysis or both. In normal circumstances it broadly mirrors the votes cast by installing a government from the party that won more votes than any other. Moreover it isn’t the voters at election time who can ‘begin dealing with their options’ under PR, but the politicians after the election. The distinguished economist Anatole Kaletsky writes, in a postscript to the same piece, that –
The German election was a triumph of democracy in the same way as the referendums in France and the Netherlands. Just like those referendums, it has created a political stalemate, neutered diplomacy and paralysed the economic reform process. But political paralysis was exactly what German voters wanted — and quite rightly so. Germans were right to vote for political paralysis for the same reason that the French and the Dutch were right to immobilise Europe…
That’s a good example of another common fallacy in the PR armoury of arguments. Germans manifestly didn’t vote for political paralysis, any more than they will have voted for a Grand Coalition of the SDP with the CDU if that’s what emerges eventually from the smoke-filled rooms. They voted for political parties, none of which advocated political paralysis. The overwhelming majority of German voters voted in the way they thought likeliest to produce a government formed or led by each voter’s party of choice. If the overall result had been one that enabled his or her party of choice to put into effect precisely the policies that party had put forward in its election programme, those voting for that party would obviously have been delighted. It’s possible that some voters are happy with the prospect of protracted coalition-making, fudge and paralysis: but if so, they had no way of reflecting that hope in the way they voted: nor could they have done so under any system yet devised, apart from a referendum. An economist as skilled as Mr Kaletsky ought to have been able to work that out. Perhaps he was being ironical.
Jarndyce continues:
Anyway, I thought the complaint was that Germany’s FDP held blackmail kingmaker powers and pivoted the system around them. Now we’re complaining when they don’t.
Who are these ‘we’ who are complaining that the FDP no longer has the numbers to act as kingmaker? I’m certainly not. I have pointed out that in UK circumstances, the LibDems, winning fewer votes than either of the two bigger parties, would almost always be able to act as kingmakers, not only deciding for themselves, almost on a whim, whether Labour or the Tories should occupy No. 10, but virtually always claiming a place in the resultant government as junior coalition partner, as the FDP did for decades in Germany.
2. Leaving aside the odd quirk, Germany’s electoral system delivers near-perfect proportionality. 10% of the votes entitles you to 10% of Bundestag seats. The proportional part of the vote is compensatory rather than parallel, to use the jargon. But nobody serious is suggesting a perfectly proportional system for the UK. Both AV+ and the system I suggested here in June would deliver majorities on large pluralities, as would the Single Transferable Vote. The Jamaica, Grand or traffic-light games are a diverting but irrelevant sideshow for UK psephologists.
I, like many others, say that the German election results represent a dire warning of the defects and perils of PR, which the fanatics constantly demanding PR for elections to the House of Commons ought to heed. Jarndyce, your answer to this is now to claim that ‘nobody serious’ is arguing for ‘perfect’ PR for the UK. That’s news to me! Anyway, I’m glad that you concede the point which some of us serious people have been making, i.e. that PR (perfect or im-) would be deeply damaging for Britain as a system for electing the House of Commons. I’m quite happy to talk about non-proportional systems for the House of Commons such as AV, AV+ and other variants, each of which has its pros and cons, just as I would welcome PR for the House of Lords, or Senate, if (as I hope) we are ever allowed to elect it.
3. The “ooh, a coalition” bogeyman is just that — a bogeyman. The correct response is: “so what?” Germany’s main, stable conservative bloc is effectively a coalition. Whatever comes out of the bargaining, it won’t be an entirely new programme or set of policies, completely unmandated by voters, as PR opponents always suggest. Germany will get a marriage of two or three parties’ existing mandates, a consensus of support on a narrower agenda, perhaps with a specific time limit. It might wobble, it might not. We elect MPs as proxies. The German ones are just going to have to earn their money the hard way for a change.
Alas, this just won’t wash. The policies emerging from the compromises squeezed out of the coalition partners in the course of the horse-trading required to form it – dropping a key proposal here in exchange for agreement on a completely new one there – are unlikely to resemble anything that any single party was offering during the election. It is absolutely right to point out that with PR – which, remember, no serious person advocates for the UK anyway – not only is the senior governing party in a coalition chosen after the election by politicians, not at the election by the electorate: but also the coalition’s policies are likewise hammered out after the election by politicians, not selected from the several on offer at the election by the electorate.
Here is Tim Garton Ash in today’s Guardian on the prospects for Germany under whatever coalition may emerge after what may be several weeks of bargaining and horse-trading:
Any of the now possible coalitions will be alliances of chalk and cheese, if not of fire and water. They will involve extraordinarily painful compromises on policy. They will be plagued by personality clashes and parties jockeying for position in an election everyone will expect to come sooner rather than later. The results in economic and social policy – and probably in foreign policy – will be more of that soft fudge in which German attempts at reform have been suffocating for more than a decade. This will be bad for Germany, bad for Europe and bad for the world economy.The most likely fudge-factory would be a so-called grand coalition between Social and Christian Democrats. Schröder has said he won’t serve under Merkel, nor will Merkel under Schröder, so that (unless they change their tune) a double decapitation would be needed before the grand coalition could even begin. With the parties having diametrically opposed policies in areas such as health-service reform, fudge mountains would be called for.
Bad for Germany, bad for Europe and bad for the world economy. That seems right. And PR would be bad for Britain.
Brian
22 September 2005.
The new edition of Prospect magazine (issue 115, October 2005) publishes a letter from me about Robin Cook’s role in the genesis of NATO’s bomb and rocket attack on Serbia over Kosovo in 1999. My letter was prompted by a passage in an article in the September issue of Prospect by Michael Williams:
When Milosevic looked set to repeat in Kosovo the horrors of Bosnia, Robin moved swiftly in concert with Hubert Vedrine, the French foreign minister, to convene the Rambouillet conference in January 1999, an ill-fated but determined attempt to avoid war. When the conference failed, Robin reluctantly came to see Nato intervention as inevitable, despite the absence of a UN security council mandate. Not only did the Kosovo con-flict prevent another Bosnia, it led within 18 months to the ousting of Milosevic…
My reply to this, as published in Prospect, said:
Not Cook’s finest hour
30th August 2005In his tribute to Robin "Cook of the Balkans" (September), Michael Williams describes the 1999 Rambouillet conference as "a determined attempt to avoid war." Nothing could be further from the truth. The then US secretary of state, Madeleine Albright, and Robin Cook, as Britain’s foreign secretary, were determined to fashion at Rambouillet an ultimatum on Kosovo so constructed that the Kosovo Albanians could accept it but the Serbs would be bound to reject it, thus providing a pretext for the Nato bombing of Yugoslavia. Misled by a false analogy between Bosnia and Kosovo, and determined not to repeat what they saw as the west’s mistakes in Bosnia, Albright and Cook, supported by Clinton, Blair and some other Nato leaders, deliberately opened the way for the illegal Nato bombing which did not stop but actually accelerated the ethnic cleansing campaign in Kosovo; killed thousands of innocent civilians; did immense damage to the economies of Serbia and other Danube countries; and failed utterly to achieve its political objectives. The eventual settlement, negotiated mainly by the Americans, Germans, Russians and Finns behind the backs of Blair and Cook, discarded all the provisions of the Rambouillet ultimatum that had forced the Serbs to reject it, thereby winning Russian and UN backing which in turn forced the Serbs to accept it. Far from the Nato bombing having compelled the Serbs to swallow the Rambouillet demands, an end to the bombing was a prior condition of the very different UN-approved settlement which eventually allowed Kosovo to be placed under international control with the reluctant acquiescence of the Serbs. There is no reason to suppose that a settlement on those lines could not have been negotiated at Rambouillet, had western diplomacy been more flexible, imaginative—and honest. Not, I’m afraid, Robin Cook’s finest hour.
The only significant difference between the published version above and the letter as submitted to Prospect (apart from some minor if regrettable editorial changes) was that my original text ended:
Not, I’m afraid, Robin Cook’s finest hour. It’s to his undying credit, though, that he couldn’t bring himself to support yet another illegal and unnecessary resort to force by a Blair government four years later when it once again overrode the advice of its experienced FCO legal advisers and joined in the catastrophic attack on Iraq.
Historians may well discuss to what extent Tony Blair’s fateful decision to join the Americans in the attack on Iraq, four years later, once again without the authority of the UN Security Council, was influenced by the conversion of the illegal, harmful and unsuccessful Kosovo adventure[1] into what the conventional wisdom quickly sanctified as a humane and successful example of humanitarian intervention whose lack of UN approval was justified by “deadlock in the Security Council”, despite the facts that –
- there was no such deadlock:
- the NATO demands were so framed as to rule out Russian or UN approval, which accordingly was never even sought: and
- the eventual settlement and internationalisation of Kosovo were achieved only when NATO’s demands were radically re-cast so as to qualify for UN authority and participation.
The conventional wisdom also conveniently ignores the fact that to this day there is still no durable solution to the basic problems that sparked internal conflict in Kosovo[2]: the need for a framework within which the Kosovo Serbs and the Kosovo Albanians can live together in peace, and for agreement on a long-term constitutional relationship between Kosovo and Serbia. The ethnic cleansing of the Serbs from most of Kosovo, after the NATO assault and under the umbrella of the international occupation and administration of the province, has made a durable settlement more difficult than ever. This was no more a model for the future than the calamitous attack on Iraq that followed and in some ways emulated it.
[1] Chapter and verse for this assessment of the NATO action against Serbia over Kosovo, including the full text of the Rambouillet ultimatum, are here; see also this and this.
[2] Additional footnote, 24 Sept 05: On the absence of, and need for, a permanent constitutional settlement for Kosovo, see this useful if understandably partisan analysis.
Brian
22 September 2005
Towards the end of his visit to the UN summit in New York, the prime minister was interviewed for the BBC Radio 4 Today Programme on 16 September 2005 on a range of topics, from the government’s latest proposals for yet more anti-terrorism legislation to international development issues and reform of the British National Health Service and education. Until now no transcript of the interview has been available (the Today Programme doesn’t publish transcripts of its interviews, doubtless because they are so numerous, and less understandably the No. 10 Downing Street website has not published a transcript of this particular interview either, although it usually carries transcripts of this kind. However, Owen Barder, who far-sightedly recorded the interview at the time, has now performed a real public service by transcribing it himself and putting it on his website (here). (You can still listen to a recording of the interview on the Today Programme website here, but probably not for much longer.)
The interview is well worth reading, as are Owen’s preliminary comments on it. On the issue of the new anti-terrorism proposals alone, the interview prompts at least three questions:
1. Do Mr Blair’s remarks help to clarify the uncertainties surrounding the definition of ‘terrorism’ to be applied to the government’s new proposals, which include making it a criminal offence incurring up to seven years’ imprisonment to ‘glorify’ terrorism? For that matter, do his remarks help to clarify what the government means by ‘glorify’?
2. What exactly are the new offences to be created under the government’s proposed new legislation that are not already covered by existing law? And —
3. Do the prime minister’s replies in the interview suggest that his own mind is clear on the issues that were raised, that he has thought deeply about them or has absorbed his officials’ briefs on them, or that he is capable of communicating the government’s position on them clearly and convincingly?
Taking these questions in turn, –
Question 1: On the definition of terrorism, Mr Blair was asked by the interviewer (Jim Naughtie) whether he didn’t think it striking that the UN couldn’t even agree on a definition of what terrorism was? Here is his reply (rows of dots indicate hesitations, not omissions):
Prime Minister: I think this is one of these times when … the definitional issue is less important than it really seems. I mean, in fact the vast bulk of people can agree on exactly what it means: it means killing of innocent civilians deliberately and even some of those countries because of their particular issue for example Pakistan over Kashmir, the problems of definition were fully in agreement with that personally I wouldn’t make too much of that I think that … there is a coming together in the international community around the need to fight terrorism and fight it not just at the level of security but at the level of taking on and defeating the ideas of these people and the idea that in any shape or form they have a grievance that can possibly justify what they do.
Pressed further (and very properly) by Naughtie on the question of definition, the prime minister added:
Do you really think people have a difficulty with defining terrorism? I mean, it is the, it’s the, killing of innocent people, um, deliberately, innocent civilians. And when people go on a bus or on the underground or in a café or a bar or a restaurant and kill as many innocent people as they possibly can quite deliberately that is something I don’t think it is just that people sort of recognise it when they see it. I think in practical terms most reasonable people have no difficulty with this definition.
Asked what exactly was meant by the proposed new offence of ‘glorifying’ terrorism, the prime minister replied that –
Before there is a prosecution the Attorney General gives … his consent so … you know, there is that stage and then yes the courts are going to have to take a view about that. But again I think that in situations where people for example are going out and saying look, if you go and kill people and killers and people and terrorist acts you are doing something that is a great thing, you are doing something that will secure your place in paradise and so on, I think again most people have not much difficulty deciding that. … let’s be absolutely clear: there will be all sorts of people who say for all sorts of reasons: "look, I understand why the terrorists do it, and you know, you can sympathise with their motivation." Now I happen profoundly to disagree with that, but I am not suggesting that you make that a criminal offence. Er, what I am suggesting should be an offence is somebody who in effect by glorifying is inciting and is saying to people – particularly impressionable people – and we know, look, that this is a modern phenomenon that we have, this extremism based on a perversion of Islam – is in effect saying to impressionable young people: this is something you should do.
Question 2: Nothing in these remarks, or elsewhere in the full transcript, gives us an answer to the perplexing question: what new offences are now being proposed that are not already covered by existing laws against, for example, incitement to violence? Mr Blair tells us that he isn’t suggesting that an expression of sympathy with the motivation of terrorists or of an understanding of why they commit terrorist attacks should be made a criminal offence, which is perhaps reassuring, but when he tries to explain what should be made an offence, he falls back on incitement. As Owen says in understandable exasperation,
I remain unclear what statements the Government wishes to make illegal. Are there statements which are not incitement, which is already illegal, and which are not merely expressing sympathy with a terrorist’s motivation, which Mr Blair does not think should be illegal? Can anyone think of an example of such a statement?
Question 3: It’s hard, with the best will in the world, to regard these answers by the prime minister to reasonable and pertinent questions, questions on policy issues of such high importance and salience, as anything but profoundly unsatisfactory. Even allowing for the possibility that he was tired during his visit to New York by the travelling and by much strenuous UN activity, I can find no evidence in his words of serious thought about the issues raised by his own government’s latest anti-terrorism proposals or of any diligent preparation of informative and clarifying answers to the questions that he must have expected to be asked. And even allowing also for the way the spoken word can look when transcribed on paper or the screen with every er and um (remember those embarrassing Eisenhower press conference transcripts?), it’s hard to accept these answers as an adequate account of his current policies on a major issue by an experienced head of government with a reputation as a communicator.
It looks as if our prime minister is beginning to lose the plot.
Brian
20 September 2005
For those who missed the highlights of the gladiatorial combat between the ‘Respect’ (formerly Labour) MP, George Galloway, and the (normally) left-wing Hitchens brother, Christopher, on BBC radio 4 this evening (Saturday 17 Sept 05), who want to see it as well as hear it, and who want the whole thing and not just the highlights, it’s all available as a video on the Web. (You’ll need a broadband connection, but my slow 512 kbs broadband connection copes with it all right.) Those of a nervous disposition should however watch one of the many heart-warming romantic comedies or soaps freely available on television or the internet instead.
Here’s a reasonably representative sample:
GEORGE GALLOWAY: But ah, I want to thank Mr Hitchens for the brave stand that he made against the war on Iraq in 1991. What you are, what you have witnessed since is something unique in natural history, the first ever metamorphosis from a butterfly back into a slug. And I mention slug purposely, because the one thing a slug does leave behind it is a trail of slime. Now, I was brought up by my father on the principle never to wrestle with a chimney sweep, because whatever you do you can’t come out clean. But you, Mr Hitchens are no chimney sweep. That’s not coal dust in which you are covered, you are covered in the stuff you like to smear onto others, not just me with your Goebellian leaflets full of selective quotation, half-truth, mistruth and downright untruth, and the comments you made in your last two minutes of this speech. People like Mr Hitchens are ready to fight to the last drop of other people’s blood, and it’s utterly contemptible, utterly and completely contemptible.
It’s an interesting paradox that this debate, staged in New York, should have featured (exclusively) two Britons as its gladiators; and an equally interesting paradox that a debate between these two British polemicists should have taken place in the United States. Perhaps Britain’s relatively more restrictive libel and slander laws would have inhibited some of the more colourful invective exchanged by these two pugilists. Perhaps it would have been difficult to find a pair of Americans, accustomed to a more restrained and civil vocabulary for their public political discourse, willing and able to stage this kind of metaphorical eye-gouging and offer it as entertainment. At any rate, the resulting combination of uninhibited blood-letting with an American venue certainly got the adrenalin pumping. It’s compulsive viewing and listening.
Just one diffident suggestion for any future road-show of this kind that might be planned: instead of bare-fisted Brits, use Australian politicians, whose practice of their vocation make the British prime minister’s weekly question-time in the House of Commons sound like a love-in. One obvious choice would be the former Australian prime minister, Paul Keating, whose archive of inventive and technicolor insults and invective has actually earned a website all to itself. He was a master:
"The Leader of the Opposition hurls all sorts of abuse at me, and all through question time those pansies over there want retractions of the things we’ve said about them. They are a bunch of nobodies going nowhere."
"Mr Speaker, can I have some protection from the clowns on the front bench?"
"…for the dullard on the front bench opposite"
"Mr Deputy Speaker, am I to be continually abused by the Honorable Member for Mitchell and the drone beside him, the Honorable Member for Braddon ?"
"Where you all come aguster is, over here we think we’re born to rule you. And let me tell you this, it’s been ingrained in me from childhood, I think my mission in life is to run you."
"You were heard in silence, so some of you SCUMBAGS on the front bench should wait a minute until you hear the responses from me."
And this is by no means the best of the collected wit and wisdom of Mr Keating.
So which of Messrs Galloway and Hitchens carried off the victor’s crown? Hard to say, really. Despite pulling no punches in denouncing Galloway, Hitchens was the calmer, more cerebral and vocally more restrained of the pair; Galloway ranted fortissimo, and that quickly became monotonous both literally and metaphorically. Hitchens was easily the more attractive personality (or so it seemed to me). Each landed palpable hits on the other, Hitchens perhaps delivering more telling blows than Galloway. Yet at the end of the two-hour slugging match, Galloway had the better of the argument. Even the factually and intellectually well equipped Hitchens couldn’t, when the blood-drenched chips were down, convincingly defend an indefensible war. On substance, although it hurts to say it, George Galloway took the prize.
PS: For an interesting comparison, read the transcript of George Galloway’s famous or infamous testimony to the United States Senate on 17 May 2005. Brilliant and courageous, or insulting and embarrassing? I’m not at all sure. Perhaps all four.
Brian
The German elections due tomorrow, 18 September 2005, are widely regarded as a contest between the free marketeers and labour market liberalisers under Angela Merkel and the more traditional welfare staters, more inclined to protectionism, under the present Chancellor, Gerhard Schroeder (whose attempts at reform have been largely resisted by his Social Democratic Party). Ms Merkel is tentatively expected to gain a plurality of the votes, but not necessarily an overall majority. In a British-type electoral system of First Past the Post (FPTP), she would probably win enough seats in the Bundestag to be able to form a government on her own, without the need to seek coalition partners, even if she had failed to win an overall majority of the votes cast. This would enable her to carry out her programme of reform, which many observers of left and right alike regard as necessary if Germany is to climb out of its present malaise. But under Germany’s system of Proportional Representation (PR), it seems increasingly likely that Ms Merkel, even if she has won more votes than any other party, will be forced to form yet another German coalition government, either with one or more of the smaller parties, or — increasingly often forecast in recent days — in a so-called Grand Coalition with Mr Schroeder’s Social Democrats. Either way, the new Chancellor will be forced into so many compromises in order to attract whichever partner might emerge into the coalition that her reform programme seems likely to have to be fudged. And a Grand Coalition between the two major parties, with ministerial offices shared out between them, leaving only the splinter groups as a rump opposition, would seem to many of us the worst outcome of all: bad for clear and stable policy delivery, bad for open debate, bad for a government not disciplined by an active and credible opposition potentially able to replace it, bad for democracy. All these unhappy prospects are the likely products of PR. Of course the predictions may turn out to be wrong and the elections may yet produce a clear and decisive result for one side or the other. But even the uncertainty can be ascribed to the PR electoral system which militates against a clear and decisive result in any country such as Germany (or Britain or the United States) where there are two fairly evenly balanced major parties, perhaps a third party some way behind them, and a group of much smaller parties bringing up the rear.
Tim Hames, in his column in the Times on 13 September, provided a pungent account of the malign effects of PR on German politics and successive German elections:
Although Germany matters so enormously to Europe, German elections have not mattered much to Germans, so there was not much reason for anyone else to become especially interested in them. Although office has shifted between the Left and Right on three occasions since 1948, only once (1998, when Gerhard Schröder initially came in) has this been the direct consequence of an election result. Otherwise, power has moved not after the voters have spoken but when political parties fall in and out of love with each other and acquire or discard coalition partners accordingly.
Broadly speaking, a political party has to win 5 per cent of the national vote to obtain seats in the German parliament (there is a partial exception which helped the ex-communists from eastern Germany in the 1990s) and it is rare for any party to be capable of seizing more than half the electorate, and hence a majority of seats, on its own. The small parties thus not only play the bridesmaid, but decide who will be wedded to power.
For the better part of five decades this led to what might be described, in deference to what was then the German capital, as the Bonn Paradox. All German adults were permitted to vote, but only 7 per cent of them appeared of any significance.
Those 7 per cent, or thereabouts, supported the Free Democrats — advocates of market economic principles, social liberalism and an Atlanticist foreign policy — and they in turn determined who would hold authority in Bonn. For the first 20 years of postwar German democracy, the Free Democrats considered the Social Democrats to be too socialist at home and too soft on the Soviet Union abroad to be trusted with government. German Chancellors were hence always drawn from the Christian Democrats. In 1969, the Free Democrats changed their stance and their 7 per cent ensured that first Willy Brandt, then Helmut Schmidt, took the highest political post in Germany for the Social Democrats. In 1982, with the activist wing of the Social Democrats clearly aching to shift to the left again, the Free Democrats dumped them and their 7 per cent of the electorate would sustain the Christian Democrat Helmut Kohl as Chancellor for 16 years.
This Bonn Paradox underlines why German election nights were mind-numbingly boring. Not only would the results be released in five minutes, but any citizen with a brain appreciated that, provided the Free Democrats could climb over the 5 per cent threshold to claim their share of parliamentary seats (which, despite scares, they always did), then whichever of the larger parties they opted to support would form an administration.
Almost everything in Hames’s analysis would apply to Britain under PR: the LibDems, straining to win as much as 20 per cent of the votes, would almost always decide whether the occupant of No. 10 should be Tory or Labour. The LibDems might, arguably, win more votes under PR, since more voters would be tempted by the idea of voting for the king-maker, and the LibDems would almost invariably be partners in the eventual coalition (voters like to vote for winners): but it’s unlikely in the extreme that they would approach the voting strength of either of the two main parties. The result would be, as in contemporary Germany, that no individual voter would have any means of influencing the outcome of the election by his or her vote, since there would be no way of knowing what sort of coalition of what permutation of minority parties – i.e., all the parties – would emerge from the post-election bargainfest, still less what bundle of policy compromises negotiated to produce the coalition would emerge from the smoke-filled room. Since PR might well cause both the Conservative and Labour Parties to break up into ideology-based segments (an anti-Europe segment breaking away from the Tories, perhaps, and a socialist break-away from Labour), it would become even more difficult to forecast how the resultant post-election coalition-making would work out, and consequently virtually impossible to decide how to cast a meaningful vote designed to assist a specific outcome. The commentators are currently speculating about five possible permutations of party alliances coming out of the German elections, ranging all the way across the political spectrum. True, fragmentation would allow each voter to select the fragment most closely conforming to that voter’s individual views and prejudices: but this would be mere self-indulgence, since no voter would be able to influence the outcome. Better Polly Toynbee’s nose-pegs.
There’s a certain irony, therefore, in the timing of the indefatigable Polly’s latest Guardian broadside yesterday (16 September 05), once again yearning for PR, this time not only in Britain but also, intriguingly, in the UN ("Must we wait a generation for democracy, here and at the UN?"), as usual tendentiously assuming an identity between democracy and PR, although just how either democracy or PR could be introduced at the UN, unless by the institution of world government, is a question that must await Polly’s answer on another occasion.
Older readers may recall that before the Labour victory of 1997 and for a short time after his triumphal entry into No. 10 Downing Street, Tony Blair hankered after an alliance of some kind with the Liberal Democrats in order, as he hoped, to consolidate a left-of-centre bloc which could be expected to command a clear majority in British politics for a generation. In this aspiration he was encouraged, for obvious reasons, by those LibDem grandees, Paddy Ashdown and in particular The (now) Late and Rt. Hon Lord Jenkins of Hillhead O.M., formerly Roy Jenkins, in his earlier incarnation a Labour Home Secretary of great distinction. A few months after the 1997 election, Tony Blair, the new prime minister, invited Lord Jenkins to head a so-called ‘Independent’ Commission on the Voting System, whose 2-volume report, issued in October 1998 as CM 4090, majestically proposed, in rotund Jenkins prose, a novel and ingenious PR electoral system of such complexity that hardly anyone could understand how it was supposed to work, still less what effect its introduction would have on British politics. Fortunately for us all, by the time the report appeared, Mr Blair’s enthusiasm for an alliance with the LibDems (and for paying the price, PR, which the LibDems were demanding for it) had waned with the realisation that the huge Labour majority in the House of Commons had made it unnecessary, and also because his allegiance to anything resembling the centre-left was anyway already beginning to slip. No more was heard of Lord Jenkins’s majestic report (and very little more was heard of Lord Jenkins). For a time, though, there was quite a lively debate on its pros and cons, of which I tried to sum up the cons in a series of messages on an internet Forum (fore-runner of blogs), later collated into a rather rambling article still available on this website. It includes some unfavourable comments on the Jenkins prose style and its insufferable pomposity. I think it also disposes of the only arguments for Lord J’s scheme worth discussing, and indeed of the arguments for PR in general. But I would, wouldn’t I?
PS (19 September): As I feared, PR has produced a disastrous outcome from the German elections whose results in terms of leadership and policies will be in damaging doubt for, probably, weeks, and even after that we must brace ourselves for a key government at the heart of Europe half paralysed by coalition dissent and fudge. Tom Watson, Labour MP, has summed up the lethal implications for the PR enthusiasts of the German elections with brilliant brevity on his website.
Brian
17 September 2005
On 5 August 2005, just before going off on his summer holidays, the prime minister, Tony Blair, announced a 12-point plan for new measures against terrorism for enactment when parliament resumed in the autumn (or before). According to the summary in the Guardian, these included "New grounds for deportation including fostering hatred, advocating violence to further a person’s beliefs or justifying or validating such violence. Possibility of amending the Human Rights Act if legal obstacles arise in respect to the interpretation of article three of the European convention on human rights. Association with a list of extremist websites, bookshops and networks will be a trigger for the home secretary to consider deporting a foreign national." Referring to the possibility that the British courts might refuse to agree to the deportation of terrorist suspects to countries where they might be subjected to torture or other ill-treatment (following the precedent of the Chahal ruling in the European Court of Human Rights), even if the government had negotiated an undertaking with the country concerned not to ill-treat the deportee, Mr Blair said:
Should legal obstacles arise, we will legislate further, including, if necessary amending the Human Rights Act, in respect of the interpretation of the ECHR. In any event, we will consult on legislating specifically for a non-suspensive appeal process in respect of deportations.
Mr Blair, a barrister, presumably recognises that even the British parliament can’t legislate to oblige the judges of the European Court of Human Rights, or the other states which are party to the Human Rights Convention, to adopt a new interpretation of the Convention in order to suit the wishes of the British Government. What the British parliament can do, though, and what has begun to emerge as the government’s possible plan for new UK legislation, is to amend the UK Human Rights Act 1998 (which incorporated the European Convention into UK law), so as to set out the ways in which British judges are to interpret the Act (but not necessarily the Convention itself). UK legislation could also change the Human Rights Act so as to remove the right of a terrorist suspect to appeal to the British courts against deportation on Human Rights Convention grounds such as the likelihood that he will be tortured if returned to his own country. Parliament could not abolish a deportee’s right of appeal to the European Court of Human Rights, but it could in principle authorise the home secretary to deport the suspect before he had a chance to appeal against deportation to the European Court: deport first, appeal afterwards. This is what Mr Blair seemed to be hinting at with his threat to legislate "specifically for a non-suspensive appeal process in respect of deportations."
These three proposals — trying to force British judges to adopt a more convenient interpretation of the provisions of the Human Rights Act without taking account of the European Court’s own interpretations of the Convention which the Act embodies; abolishing the right of appeal to the British courts of those whom the government wants to deport; and taking powers to deport suspects before they have a chance to appeal to the European Court — are all plainly open to serious objection, and would mark a significant reduction in the basic rights of non-British citizens in Britain. The first and third of them also seem open to question as to their legality.
In August 2004 I put on my website an interesting piece by the Australian lawyer, John Greenwell, suggesting a possible new approach to the question of the use of evidence obtained by torture. John Greenwell is a retired former legal adviser to the Australian government, specialising in international law. He has now written the following interesting and useful comments on the issue of the right and freedom of judges to interpret the law as adopted by parliament:
I am very interested in the proposed UK legislation to give directions to the Courts on the interpretation of legislation. Although seemingly a technical area, this touches upon some things which are pretty fundamental.
While the Revolution established the sovereignty of Parliament, the courts and the lawyers were partners in this, having the same Lockean views and interests as the parliamentarians. Montesqieu came later and so there was no formal separation of powers (although Locke referred to it, more as a working principle than doctrine). The Judges obtained security of tenure, an essential part of the Revolution settlement and also, more materially, the authority to interpret legislation. They proceeded to use this power, refusing to admit parliamentary debates or any other extrinsic evidence of parliamentary intention into Court for aid in the construction of Acts of Parliament and invoking a presumption that an Act of Parliament was not intended to overturn the common law. This presumption has almost disappeared, but until well into the twentieth century it was frequently used by the Judges to ensure that Parliament did not stray too far from the common law.
Of course the ‘Judicial Power’ is constitutionally protected in Australia, and the proposed UK legislation would be even more dubious, in point of power, in America where the separation of powers is constitutionally enshrined.
It comes, I think, to this. Parliament can tell the Courts what it intended to mean and to that extent can guide interpretation by the Courts. But Parliament cannot tell the Courts — or anybody else — what the words of an Act do mean. That is exclusively a matter for the Courts. This proposition would, I think, be equally applicable in the UK. The reason for this is that interpretation is logically prior to the operation of parliamentary sovereignty. That is to say, the sovereignty of Parliament applies only to what Parliament said, but what it has said — its meaning — must first be interpreted by the only organs authorised to do that, the Courts. As anyone familiar with the interpretation of revenue legislation would be aware, what Parliament (in effect the government) says it intended to mean can be very different from what the Courts lay down it does mean. Perhaps the one effect upon interpretation of the proposed legislation will be to exclude the ordinary presumption in interpretation that a statute is not intended to take away the liberty of the subject.
Of course as most of the legislation in question will bear upon the Human Rights Convention any issues arising will ultimately be determined by the Court in Strasbourg which will not be constrained by UK interpretative legislation. For all that, I do not think the UK legislation could constitutionally go beyond statements in preambles, second reading speeches and explanatory memoranda specifying Parliament’s intention and requiring the Courts to have regard to that, but only insofar as the intended meaning is relevant to the construction of the meaning.
I will be interested in the legislation when it emerges.
I wonder what Tony and Cherie have to say about all this over breakfast — probably they apply the John Cleese formula and don’t mention it.
UK Ministers have argued that other countries which are signatories to the European Human Rights Convention deport suspects to countries known to practise torture without being frustrated by their own domestic courts, and that they see no reason why Britain should not enjoy the same freedom to act likewise. The flaws in this argument are apparent from some useful research by Tony Hatfield in his blog entries of 12 August and 14 August this year. A more up-to-date entry appeared in that blog on 7 September.
To their credit (and especially perhaps to the credit of the home secretary, Charles Clarke), ministers have promised a full opportunity for debate both with public opinion and in parliament before any of these highly controversial proposals are finalised and put into effect. Effective opposition to the proposed measures discussed here will be complicated by their technical character and the technicalities of the arguments for rejecting them. All the more reason for airing these arguments and this debate as widely as possible while there is still time. MPs and peers please copy!
Brian
