The second part of Michael Cockerell's magisterial 3-part series on BBC2 television, Blair: The Inside Story, was broadcast this evening (27 Feb 07). Despite some much-trailed criticism of Blair from two heavy-weight former diplomats (Sir Stephen Wall and Sir Jeremy Greenstock), both of whom must be storing much more lethal ammunition in their wine cellars than anything fired off this evening, the programme's treatment of two key events in the Blair record, Kosovo and Iraq, was disappointing. Much was inevitably familiar — but there were too many omissions of items crucial to any judgement of Blair's integrity and consistency, including for example his public declarations, in the lead-up to the Iraq war, that toppling Saddam Hussein and his régime could not and would not be a legitimate objective of any attack on Iraq, and that Britain would not participate in a war on Iraq without the authority of the UN unless a resolution authorising it had been "unreasonably" vetoed (no such resolution was either passed or vetoed, unreasonably or otherwise). Both these pledges were flagrantly dishonoured.
Naturally decisions on how much and what to include or leave out in one of three 1-hour programmes are bound to be subjective, and some important things can't be squeezed in. But in this case there were also too many serious misrepresentations of the historical record.
Examples: the programme or its participants advanced or strongly implied the following propositions, none of which is true:
- "The mounting expulsion of Kosovo Albanian refugees from their country into vast refugee camps in neighbouring countries was the last straw propelling NATO into the start of its 3-month air attack on Serbia" (actually the expulsions of the refugees from Kosovo began only after the beginning of the NATO attacks, which greatly accentuated and accelerated Serbian ethnic cleansing of Kosovo);
- "The bombing eventually forced Milosevic to capitulate to NATO's demands, hugely to Blair's credit since he had been the firmest supporter of military action" (actually the bombing got NATO nowhere: it was a secret resumption of diplomacy, without UK participation, that led to Milosevic's acceptance of terms which differed radically from NATO's original demands).
- "The diplomatic efforts of Russia and France eventually precipitated Milosevic's surrender" (actually it was secret diplomacy by emissaries of Russia and the US, with the President of Finland, which brought about the Serbs' eventual agreement to withdraw their forces from Kosovo).
- "It was Blair's success in Kosovo, achieved by obeying his sense of what was right and by backing his deep-rooted belief in his Mission, that reinforced his confidence in his own judgement and moral sense over what had to be done about Iraq" (actually Blair had been party to a gross deception of public opinion about the US and UK's real objectives at the Rambouillet conference, the conference which led directly to NATO's illegal, unsuccessful and counter-productive attack on Serbia. The NATO attack was subsequently deliberately misrepresented by Blair as a success, a myth which he perpetuates to this day. What he really learned from Kosovo was that he had got away with murder, and thought he could get away with it again in Iraq).
- "French President Chirac said in a television interview, in the run-up to the Iraq war, that at that moment France would "veto" any UN resolution to authorise force against Saddam, enabling Blair and other UK ministers to misrepresent him as having threatened to veto any such resolution at any time" (it is true that Blair and his colleagues deliberately and publicly lied about what Chirac had said. Chirac had indeed declared France's intention to vote against any war resolution at that time. But he had made it clear that France would not, and would not need to, cast a 'veto' against a resolution authorising the use of force, because since there was no majority in the Security Council in favour of war at that time, France's No vote would not constitute a veto — a technical but important difference spelled out very clearly by Chirac in his interview. In the event the US and UK withdrew their draft resolution without allowing it to come to a vote, knowing that it would have been defeated without any need for a veto, as Chirac had correctly predicted).
- "At the time when Britain was enduring the German blitzes early in the Second World War, the only country that stood shoulder to shoulder with Britain was the United States" (terrible and revealing historical howler by Blair in his speech to a joint session of the US Congress, whose flagrant falsity was not pointed out by the programme despite its showing of the relevant clip in full).
- "The failure to secure a 'second resolution' in the UN authorising the use of force against Iraq was partially attributable to Greenstock, UK Permanent Representative at the UN at the time: where Blair went wrong was in failing to ensure that the occupiers of Iraq, the US, UK and their allies, gave top priority to maintaining law and order on the streets of Baghdad and Basra in the period immediately after the invasion — 'he took his eye off the ball'" (actually Greenstock was not at all to blame for failing to get the second resolution: there was no resolution because a substantial majority in the Security Council rightly believed that any attack on Iraq at that time would be premature and unjustified, when the UN weapons inspectors had not completed their work and the position over Iraq's alleged possession of WMD was still unclear. Blair's most disastrous blunder was his failure to insist in advance with Bush that Britain would not take part in any attack on Iraq unless it was expressly authorised by the Security Council. He knew that any attack on Iraq without UN authority would be illegal — indeed, an act of aggression. Compared with that failure of nerve and integrity, Blair's subsequent failures over the maintenance of law and order in Iraq were relatively minor, although in themselves certainly shocking and inexcusable).
- "It was understandable that Blair told parliament and the public that the intelligence pointing to Iraq's possession of WMD which posed an immediate threat to the UK was strong and consistent, when he knew that it had been assessed as sporadic and patchy: understandable, because he had to rely on this intelligence in order to give a strong lead to the country and the world" (a remarkable attempt by a former cabinet secretary to excuse and condone deliberate lying to parliament and the country in order to gain support for a decision which Blair pretended had not yet been taken, although in fact he had taken it several months earlier. Ministers can still be heard asserting that they only supported the Iraq war because 'the intelligence was wrong', when what was wrong was Blair's and other ministers' lies about the reliability of the intelligence).
It's a pity that so many inaccuracies and misrepresentations of what really happened were allowed to pass uncorrected in a programme which clearly sought (with considerable success) to deliver a sober and objective verdict on a period of Blair's premiership in which so much of his personal activity in international affairs was so discreditable. Still, the overall effect was unarguably damning in spite of these flaws. The impression left by the programme as a whole was of a weak man who seeks to conceal his weakness by always choosing the 'tough' rather than the prudent, conciliatory or pacific option; a man impelled, perhaps by his religious faith, to act on what he perceives to be his moral instincts rather than on the basis of calm analysis of the options and their likely consequences, or on the advice and warnings of those whose judgement is informed by a better knowledge of the salient facts, and of history, than Blair himself can command. Many good things have been done during his time in office, but they are tragically outweighed by his self-delusion, his misjudgements and his resorts to dishonesty in defence of what he has persuaded himself to be right. It's time he went.
Brian
Back in July 2002 I posted a piece on this blog about the monstrous practice of refusing to release prisoners on parole, who would otherwise qualify for it, if they persist in maintaining their innocence of the crime for which they were sent to prison, a sort of Kafka-esque Catch 22 for anyone who has genuinely been wrongly convicted (and we know that such people do exist). I quoted several examples. I had commented on this obvious potential injustice in an even earlier post.
Now this comment has been posted on my entry of July 2002:
From paul blackburn
February 26th, 2007 at 4:19 pmI spent 25 years in prison until I was released & won my appeal. We have just finished a play for BBC Radio 4 called 2 "In Denial" that will be broadcast on March 16th 2007 at 9 pm. Please listen in and please pass the word. Thank you.
I am glad to pass the word as requested and hope the broadcast will be widely heard. Disturbing details of Mr Blackburn's case can be read here and here.
There's a real scandal here, frequently exposed and still not corrected by a succession of pusillanimous home secretaries.
Update (10 March 2007): I have just been told by Mr Blackburn that unfortunately transmission of the play about his case has been postponed, and won't after all be broadcast on 16 March. But he has been assured that it will be broadcast at some future date. Watch this space!
Brian
I have sent this urgent message to my unfortunate MP. Please write similarly to your own MP, without delay: the debate and vote are imminent:
I am writing to urge you to cast your free vote on House of Lords reform for a genuinely democratic reformed second chamber, which can only mean:
- All its members (or an absolute minimum of 80 per cent of them) directly elected. But if there are multiple votes on this, it may be necessary to vote for 60 per cent as well as for 80 and 100, in order to head off something even worse;
- If there are any appointed members, the political parties, their leaders, the prime minister and other party officials should have absolutely no say in the nomination or appointment processes — this kind of patronage is now utterly discredited, and if the present parliament and government try to perpetuate it in whatever form, they will be discredited too;
- Elections to the second chamber to be by a completely open form of proportional representation that will encourage the election of independents, mavericks, non-political experts and others who will contribute added value to its proceedings, as well as politicians. There should be no question of a party list system, even the so-called 'open' list system proposed by Mr Straw, which will simply tighten the grip of the political establishment in the House of Commons on the second chamber and will be strongly resented by public opinion;
- Anyone who has served in the House of Commons should be ineligible for election or appointment to the second chamber (to stop the disgraceful practice of using it as a compensation and pay-off for failed and superannuated party hacks), and no-one who has served in the second chamber should subsequently be eligible for election to the House of Commons, even after a cooling-off period;
- No bishops! There's no conceivable case for preserving this offensive and discriminatory anomaly, which insults Muslims, Roman Catholics, Hindus, Jews, Scientologists, Buddhists and the huge majority of us who have no religion;
- No diminution in the existing powers or role of the House of Lords;
- Recognition that even a 100 per cent elected second chamber couldn't challenge the supremacy of the House of Commons, (a) because the government springs from and is hosted by the Commons as the chamber where all significant ministers sit, and (b) because of the sharply limited powers and role of the second chamber compared with the Commons. Fear of a challenge by the second chamber to the Commons is pure paranoia — or ignorance, or a pretext for establishing and maintaining the overwhelming power of the executive over both houses of Parliament.
If it becomes procedurally possible, I would hope that you will be able to vote for both the 60% elected and 80% elected options, as well as the 100% option as first choice. You will remember that in 2003, the 80% elected option fell by just three votes. It would be a disaster if that were to happen again. This may be a once-in-a-generation opportunity to get this issue right at last.
By all means, if you agree with them, please make these seven points the backbone of any speech you are able to make in the forthcoming debate! But above all please vote in accordance with them. Most of the Straw proposals are dismally flawed to an almost unbelievable degree.
I also hope you will agree to attend and support the Rally for a Democratic House of Lords to be held in the House of Commons Grand Committee Room on Monday 26 February from 7pm. I understand that it is to be chaired by Chris Bryan MP, and that Neil Kinnock, Charles Kennedy and Kenneth Clarke have been invited to speak.
I see that you haven't so far signed Early Day Motion 789, but I hope you will feel able to do so.
Brian
In earlier posts (here and here) I have sought to deal with the most substantial objections raised against the federal solution that I advocate for the UK. Here I try to answer some of the relatively more marginal questions and objections. The first of these was suggested in one of the letters published by the Independent in reply to mine of 31 January 2007:
Why not content ourselves with setting up an English parliament and then devolving to England, Northern Ireland and Wales the same extensive powers already devolved to Scotland, thus removing the inequalities of the present situation while leaving the Westminster parliament with its full, theoretically unlimited powers and avoiding the need for all the panoply of a formal federation?
This hybrid system, half federal and half unitary, in which ultimate power remains with the quasi-federal central organs, perpetuates the power of England over the smaller nations by leaving open the possibility that the England-dominated federal parliament will some day take back what it had previously graciously bestowed on its subsidiary bodies. The essence of federalism is the equal autonomous status of all the units, nations and federal centre: that the nations own their own powers, and can't be deprived of them without their own consent. The powers of the federal centre are to be seen as ceded by the nations for the convenience of the federation as a whole, not as instruments of domination of the nations.
Why not abolish England's dominance by splitting it up into smaller geographical units? What would be the consequences for England of doing so, and would they be acceptable?
Any attempt to divide England into smaller regional units so as to reduce the inequality of size between England and the three smaller nations would be doomed. Hardly any region of England has a sense of its own separate identity (culture, language, history) to compare with those of Scotland, Wales and (Northern) Ireland. A case could be made for, say, Cornwall, and perhaps Yorkshire, but not — so far as I can see — for anywhere else. It would be represented, not entirely unreasonably, as abolishing England. The artificiality of the resulting regions would contaminate the whole federal concept. It would also arouse intense opposition from the growing band of English nationalists, including the most moderate and constructive of them (or us). Above all, it isn't necessary. Federal mechanisms can be used to minimise the negative consequences of England's disproportionate size.
Why should England continue to subsidise the other nations in a full federation — and how would the others survive without their subsidies from the English?
In almost every federation whose units (states, provinces, Lander, nations) are unequal economically, eg in terms of development and income, there are provisions designed progressively to reduce that inequality — including in the semi-federation of the EU. This inevitably involves a transfer of resources from the richer units to the poorer, designed to ensure that radical and increasing inequality doesn't ultimately result in the denuding of any part of the federation of its population and their opportunities. In all federations the extent and method of such transfers, and the formula that determines how they are calculated, are among the most controversial and hotly disputed topics of political and constitutional debate. Even in the UK, still well short of full federalism, the formula for the distribution of expenditure and resources between England and Scotland, the 'Barnett formula', gives rise to sometimes acrimonious debate. When the federal constitution is being drawn up, through the usual procedures of Royal Commission, Constitutional Convention and referendum, provision will have to be made for a system of [re]distribution, covering all the smaller nations. The outcome of the discussion of this provision will be determined by a long process of bargaining and haggling, and it's fruitless at this stage to try to predict how it would come out.
What if the party forming a government in England is of the opposite political persuasion to the majority party at federal (Westminster) level, so that they would be permanently in conflict with one another — a real possibility as long as the Tories might well win an England-only election, while Labour might continue to win at the federal level (with the benefit of Labour votes in Scotland and Wales)?
This frequently happens in federal systems. It can occur in aggravated form in federations which have an elected executive presidency independent of, and sometimes opposed to, the separately elected legislature (as now in the US): this is most unlikely to be a feature of a federal UK which will presumably maintain the Westminster parliamentary system under which the executive is determined by the elected parliament and both are controlled by the same party. However, there can be no reason to expect that all the nations will elect the same party as the federation as a whole, nor will each elect the same party as the others. The necessity of maintaining a constructive and reasonably cooperative relationship with other organs of the federation of a different political colour imposes a useful discipline. In any case, the areas of responsibility and powers of the units and the federal centre will be almost entirely different.
Why not make the Westminster parliament and government the parliament and government for England, and set up the federal bodies somewhere else — Lancaster has been suggested?
This will need to be decided along with all the many other issues arising from federalisation, but a move of either the federal government and legislature or their new English equivalents from London would be enormously expensive and disruptive. Most of the present British departments of state, including the Home Office, and the departments responsible for education, health, transport and all other domestic or internal matters, will inevitably become departments of the government of England, since they will not come within the new federal government's sphere of responsibility. To move them all physically to another part of England would involve huge disruption and dislocation of thousands of people's lives, with dramatic implications for housing and other public services both in London and the new location.
Similarly, the federal departments (especially the Foreign & Commonwealth Office and the Ministry of Defence but also probably including parts of the Treasury and the departments responsible for overseas development and trade), if moved out of London, would have to take with them more than a hundred foreign embassies and Commonwealth High Commissions, with all their staffs, some running to several hundred persons, and their families, homes and offices. It would be extremely difficult, even if all these offices and homes could somehow be transferred to another city somewhere in the UK (not necessarily in England), to ensure adequate international transport facilities for a group of officials, diplomats and their families who inevitably travel internationally more than any other groups in the UK.
Some other federations have a small separate territory in which the federal organs and their staffs are situated so as to avoid an invidious decision on which state (nation, province, Land) is to host them: Washington DC in the US, the Australian Capital Territory in Australia, and so forth. There might be a case for making London a separate capital territory as the home of the federal government and parliament: London already has its own elected Mayor, government and quasi-legislature so this could be fairly straightforward. But it would mean carving London out of England and therefore moving the English parliament and government out of London, with all the attendant problems described earlier, and it would arouse intense opposition — at least, I think it would! — in both London and the rest of England. Londoners who are not involved in government at all would inevitably resent their loss of English rights and status and deprivation of a voice in newly devolved English domestic affairs, and many English people outside London would resent the loss of London with the enormous income that London generates.
If we were setting up a federation from scratch or at a very early stage of the development of the UK, it would make sense to create a separate capital territory like those of the US, Australia, Nigeria and Brazil, among others. But it's now too late for that.
Why should we scrap our centuries-old tradition of managing without a written constitution in a single document, with all the flexibility that this entails, but which a federal system would require us to abandon?
There are serious problems as well as arguable benefits from the absence of a written constitution in a single document, which creates enormous uncertainties as well as almost unlimited flexibility. Even the flexibility that stems from reliance on tradition and convention as well as on statute law and international obligations has its dangers: for example, it could be exploited by some future authoritarian government for totalitarian or dictatorial purposes. There are also dangers in not having a constitutional supreme court with the authority to strike down as unconstitutional and invalid actions of the Westminster parliament or its government: again, a future extremist government might well use parliament to give itself wide-ranging powers which as things stand now the courts would in theory be obliged to uphold. A federal constitution would define the respective areas of authority of the various federal and national units, and establish an independent supreme court to monitor, interpret, defend and enforce it. There would also be provision for special procedures and safeguards for the most important provisions of the constitution to prevent them from being amended without proper consideration or without the consent of all the elements of the federation. A written constitution would inevitably, and usefully, include a Bill of Rights, probably based on the Human Rights Act, which would be one of the entrenched sections of the constitution requiring special procedures for amendment. All this would help to reduce the power of the central government (and of the federal parliament), power which in our present circumstances is widely and rightly regarded as excessive. It leads to an unwholesome centralising of power which it would be a main purpose of federalism to disperse and localise.
What would be the implications for EU membership?
None. The UK would remain a single member of the EU. None of the constituent nations (Scotland, England, Wales and Northern Ireland) would qualify for separate membership of the EU or for a more direct relationship with it than they have now — any more than Bavaria does. Some of the literature of the English nationalists suggests that the creation of an English parliament and the devolution to it of the same powers as those devolved to Scotland would somehow entitle England to separate membership of the EU. This implies a demand for English independence, not incorporation in a UK federation.
More generally, would a federal UK divided into four incomparably stronger self-governing nations mean the end of our British identity: even the end of the Union?
Quite the reverse. By removing almost all the sense of grievance in the smaller nations over the dominance of England in their government, the move to a federation would greatly strengthen the cohesiveness and sense of continuity and permanence of the whole of the United Kingdom. A Californian feels no less American (or a Tasmanian no less Australian) just because his home state enjoys full control of its own internal affairs. Full autonomy for all four of the UK nations would strengthen the sense of Britishness of all of them: being British would no longer threaten their right to run their own affairs in whatever way they wished, without constant interference from Westminster or Whitehall. All nationalists — Scottish, Welsh and English (the [Northern] Irish are in several ways a special case) — would at last be able to have their cake and eat it: enjoying full domestic self-government, together with the benefits of an international British identity and citizenship with the status and benefits that they confer. A desire for (eg) Scottish independence would become a harmless eccentricity.
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If you're still with me, that really covers the main points. But in case you're strong enough for even more, here are some clarifications of earlier points in reply to an eagle-eyed sceptic and friend who never misses a fudged or ambiguous argument:
I…still think you haven't fully answered the difficulty about the overwhelmingly preponderant weight of the English constituent of the federation…
Whatever the constitutional set-up of the UK, the preponderance of England will always cause difficulties. In a unitary or semi-unitary UK, the problem creates maximum discontent outside England because a highly over-centralised Westminster parliament, overwhelmingly dominated by English MPs, and the government that it produces, insist on micro-managing every detail of life throughout the UK (or anyway they did before devolution, and still largely do). A full federal system alone can minimise the ill effects of the problem by giving all the lower-tier nations almost total control of their own affairs, regardless of size, plus a 'Nations' House' with equal representation for each nation in the federal upper house (see below). The difficulty can never be "fully" solved because it's a fact of life, but you can surely see that a federal system is the only way to minimise its ill effects short of breaking up the UK altogether?
….which would be exacerbated further by the small number of the other component parts.
Why? I see no reason why it should be. In many ways it should make it easier — for example, much easier to get the agreement of four second-tier units (states, nations), or even six-and-a-half (Australia), than 50 (USA), to any constitutional amendment, and indeed before that much easier to get their assent to the federal constitution itself.
You are, of course, right that England's size has always been a problem for the Union,…
Exactly. The trick is to minimise its negative effects as far as possible.
….and that the Scottish and Welsh devolutions don't seem to have done much to alleviate it.
Actually I think devolution to Scotland and Wales (and in principle to NI) clearly has gone some way to alleviating it, but apparently not far enough.
It seems difficult in equity to argue, as you appear to, that Scotland, Wales and N Ireland should have "equal representation" with England in the supra-national federal tier of government.
No, no. I am suggesting equal representation for all the 'nations' only in the federal Upper House, i.e. the Senate — precisely as in the US and Australia. (Bear in mind that the federal organs would have only very limited responsibilities: mainly foreign affairs and defence, and certain other matters affecting the whole of the UK, including some that would be shared with the national governments and parliaments, the latter prevailing in the event of conflict.) It would be for the Royal Commission > All-UK Constitutional Assembly > all-UK referendum to determine the details, and also to decide the electoral system for the House of Commons, which would produce and host the federal government, just as is now the case with the British government. In the Commons the nations would be represented in proportion to their populations (probably eliminating the present over-representation of Scotland, which would no longer be necessary since Scotland would have other and much better kinds of protection against English domination). Since the principal function of the House of Commons would be to produce, host and sustain the federal government (unlike the US House of Reps, but like the Australian House of Reps), my vote would be for continued First Past the Post. But that would be for lengthy public debate and decision at a much later stage. Similarly, the whole constitution-making process would have to settle the question of the electoral system for the Senate, although I think the case for one or other form of PR for the Senate, and probably also in the upper houses of each of the nations' parliaments if some or all of them opted to have two chambers, would be almost irresistible.
The US tripod model – where elections to the Senate, House of Representatives and Presidency are all held separately and where it is possible to have a President who does not enjoy a majority in either House of Congress – is not easily applicable to the UK.
I am certainly not suggesting an elected — or any other — Presidency: why should we need such a thing just because we would become a full federation? The Australian federation functions all right despite, or some would say because of, being a monarchy — indeed, it shares the same Queen as ours as its head of state, and it follows broadly the Westminster parliamentary system. (I'm not saying that most Australians are satisfied with their bizarre monarchical system — they aren't; I merely observe that federation is perfectly consistent with being a monarchy.) There is no reason why elections to (say) one-third or a half of the Senate should necessarily always, or ever, be held at the same time as elections to the House of Commons, or for that matter at the same time as elections to the European parliament or local government elections, although Commons and part-Senate elections might sometimes be synchronised, sometimes not, depending on the reason for holding them (as in Australia). The timing and electoral systems of local government elections would of course be decided exclusively by the national governments and parliaments, which might well all take differing decisions.
If it's objected that this would mean altogether too many elections, the answers are that (a) only one additional election will be involved, that to the federal Senate: and the House of Commons is apparently just about to vote for an elected element in the House of Lords which will mean one more election anyway. In England there would of course also be elections to the English parliament. But that too is probably coming anyway. And (b) there's a very strong case for making voting compulsory in the main elections, i.e those whose results determine the political colour of a government. However, since the national parliaments and their governments would have far-reaching responsibilities for virtually all internal affairs and would be much more accessible to their electorates than the present Westminster equivalents, a lively interest in national (local) politics would probably revive even without compulsory voting.
I ought to put down a marker here about the future of the monarchy. For various reasons I would like the UK eventually to become a Republic with an elected but non-executive President (as in Germany and elsewhere). But I fear that some (not all) of our conservative, risk-averse, xenophobic, constitutionally largely uninformed compatriots, and the red-top media, would find a federal system and the abolition of the monarchy too rich a meal to swallow all in one mouthful. Indeed, to pick'n'mix metaphors, hitching the latter up to the former would undoubtedly sink them both. The federation is clearly the more urgent of the two. One thing at a time!
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I rest my case. Your turn.
Brian
Yet another of "Dr" Reid's noxious Control Orders has been struck down in the High Court on appeal, this time on two interesting grounds which, if upheld on further appeal along with other pending cases, may mean the long overdue end of this unprincipled system altogether.
The first of Mr Justice Beatson's grounds for quashing the control order was that the home secretary had failed to keep under review, in the light of fresh evidence that had come to light, the possibility of prosecuting the alleged terrorist suspect in the ordinary way instead of keeping him subject to the restrictions imposed under the control order, without trial. If this objection to a control order survives the home secretary's appeal, other existing control orders may well also be disqualified in the same way.
The second of the judge's disqualifying objections was that the restrictions on the suspect's life imposed by this control order were so onerous as to amount to deprivation of his liberty without trial, contrary to his rights under the European Human Rights Convention (nb: the Convention, not the UK Human Rights Act: the government is finding it a hard task to get agreement on any amendment of the Convention). Here too if the judge's finding is upheld on appeal it may become impossible for the home secretary to devise a set of meaningful restrictions under future control orders that won't also fall foul of the Convention. The home secretary, who (pending the outcome of his appeal against the Beatson judgements) has imposed a new and less restrictive control order on the suspect, has already complained that the weaker order increases the risk that the suspect will abscond, as three previous suspects under control orders have already done.
Previous High Court rulings against control orders have raised similar questions about the viability of the whole system, which is increasingly obviously deeply flawed and irreparably so, as many of us asserted from the beginning. Instead of pursuing appeal after appeal through the grinding processes of SIAC, High Court, Court of Appeal and House of Lords, with more and more meaningless variations on the restrictions imposed under the orders being tried out for court approval, the government really needs to face reality and scrap the whole decrepit and discredited system forthwith.
No substitute system is going to be wholly satisfactory so long as some of the essential evidence against a person reasonably believed to be involved in terrorism can't safely be revealed to the accused or his lawyers in an ordinary criminal court, for example if parts of the evidence have come from secret informers whose lives could be in danger if their identity could be deduced from the information they have supplied. (And if the revelation of their identity through their evidence being revealed in open court leads to informers being exposed, the prime means of discovering terrorist activity, namely getting information from secret informers, will dry up very quickly indeed.) The only solution to this dilemma, apart from something like the present control orders régime, is to permit some limited kinds of evidence to be heard in 'closed' session, i.e. without the presence of the accused or his lawyers (and a fortiori with press and public also excluded), in an ordinary criminal court, with judge and jury and the ordinary criminal procedures and safeguards, and subject to the presiding judge's confirmation that the specific evidence in question can't safely be disclosed to the defendant but that it is essential to the prosecution case. This procedure would be exceptional, not commonplace, and would apply only to a small proportion of the prosecution evidence: corroboration by other ordinary evidence, disclosed to the defendant, would be essential. No-one should be convicted on the basis of closed evidence alone.
This alternative is of course imperfect and would be rejected by libertarian purists as breaching the principle that an accused person is entitled to know the evidence against him or her — as it clearly does. But the existing system, in which the Special Immigration Appeals Commission can under existing rules hear certain kinds of evidence in closed session, already embodies this breach, while adding to it an even more monstrous breach of the principle that no-one should be deprived of their liberty except after conviction in a fair trial by a proper court. We should not resist the huge improvement represented by moving the whole procedure into the proper criminal court system and guaranteeing a fair trial to anyone threatened by deprivation of his liberty, simply because the need for some closed evidence in some cases would be undesirable but unavoidable. No other viable alternative has so far been suggested. We should not continue to allow the best to be the enemy of the good.
Update (25 February 2007:) In answer to some comments (below) on this piece about the status and procedures of the Special Immigration Appeals Commission (SIAC), and in particular objections raised to SIAC hearings held 'in camera' (or rather in 'closed session'), I have added the following further clarifications — at least, I hope they clarify rather than obfuscate:
The phrase 'in camera' is not helpful in relation to the Special Immigration Appeals Commission (SIAC) and is not used (as far as I remember) in the Act establishing it. The main distinguishing feature of SIAC is that it has the power to hear certain kinds of evidence that may not be disclosed to the appellant or his lawyers: 'in camera' is an inadequate description of this procedure. The term 'Commission' has no significance: SIAC has the status of a court of first instance and its members are judges (its Chairman is a High Court judge). It is an appeal court, not a criminal court. It hears appeals against orders made by the home secretary to deport aliens on grounds of national security or to impose control orders on terrorist suspects (of any nationality including British). Appeals from SIAC's findings of law lie to the Court of Appeal and thence to the House of Lords. To say that because it is in some sense a 'special' court it somehow resembles the Inquisition … or the tribunals of the Puritans is really several logical jumps too far. There are lots of 'special' courts dealing with specialised issues. SIAC's powers are in effect limited to upholding or quashing orders already made by the home secretary. It can't impose fresh penalties, or indeed any penalties, on anyone. Denouncing SIAC as some kind of kangaroo court or inquisition is pretty obviously aiming at the wrong target.
It is perfectly legitimate to criticise the existence of the home secretary's power to deport aliens on various grounds (although I know of no country whose government doesn't have such powers), and also to criticise the whole 'control orders' régime, which personally I condemn, as you might have noticed from my original post above. But that is not the same thing as condemning SIAC itself, which provides a valuable avenue of appeal against both kinds of order. Nor is it the same thing as condemning the procedure, available to SIAC and to (I think) only one other court, under which it may in certain tightly defined circumstances hear evidence not disclosed to the appellant. AFAIK, there has never been a SIAC case in which none of the evidence has been disclosed to the appellant. In the one case of which I have personal knowledge, only a tiny fraction of the overall evidence was withheld from the appellant; the appellant's interests at the hearings from which he was excluded were represented conscientiously and extremely effectively by the Special Advocate, cleared to see and hear all the closed evidence and to challenge and cross-examine on it on behalf of the appellant; and the result of this particular case was that SIAC allowed the appeal and quashed the home secretary's deportation order. SIAC is not a 'secret court', the great majority of its hearings are held in public, its findings are published, and its Chairman scrutinises with special rigour any application by the respondent (the home secretary) to classify any part of the evidence as 'closed' (i.e. to be admissible but not disclosed to the appellant). I know of concrete cases in which such applications have been refused and the respondent has had to choose between putting forward the disputed evidence in the knowledge that it will be disclosed to the appellant (and might, for example, lead to the appellant being able to identify a secret informer) or else trying to present the case against the appeal without using the evidence in question.
I have tried in my original post above, apparently without much success, to explain the rationale for the SIAC procedure under which certain limited kinds of evidence may be withheld from a terrorist suspect, while condemning the whole control orders system and arguing that the SIAC procedure should be transferred to the ordinary criminal courts (or at any rate those trying defendants on terrorist charges). It seems obvious to me that there is no wholly satisfactory solution to the dilemma that arises when to obtain a conviction against a person reasonably suspected of being involved in terrorism, it's necessary to use evidence against him which, if dislosed to the defendant or his lawyers, might endanger the life of a secret police informer as well as the ability of the security services to recruit informers in future. (There are in fact some other categories of sensitive information that may be needed to rebut an appeal or secure a conviction but which can't safely be disclosed to an appellant or defendant, but I think information from a secret informer is the clearest example.) The libertarian purist will say that if you can't get a conviction without disclosing to him all the evidence against him, you shouldn't prosecute him or take any other action to limit his capacity for committing a terrorist act, even if that means accepting a substantial risk to the lives of innocent citizens, possibly a very large number of them. That's a perfectly tenable point of view. I happen to think that in present conditions it's simply not realistic, and that no British government of any political persuasion in the foreseeable future would take it seriously. Arguing for it is thus a waste of time, except as a purely academic exercise. Promoting the achievable and seeking to improve the present system by eliminating as many of its defects as possible are much more useful activities.
Brian
A week or two ago, in a letter published in The Independent and in somewhat greater detail on this blog I argued the case for completing the process, on which we have embarked but stopped half-way, of making the United Kingdom a fully fledged federation of its four nations, with virtually all internal powers over domestic affairs exercised by the legislatures and governments of each of the nations (including England), the existing Westminster parliament and government becoming the federal tier bodies responsible mainly for foreign affairs and defence in respect of the whole of the UK. I contend that this is the only durable and defensible solution to the West Lothian question (which asks why Scottish MPs should be able to vote at Westminster on matters affecting only England while English MPs are prevented, since devolution, from voting on matters devolved to the Scottish Parliament and executive), and the only way of resolving the anomalies inherent in our present constitutional mess — especially the unsustainable situation in which England, alone of the four nations, has no parliament or executive of its own. Even more indefensibly, the Westminster parliament tries to combine the two incompatible functions of a federal parliament for the whole of the UK (but dealing only with undevolved subjects in respect of parts of it), while simultaneously acting as a parliament for England — for which the membership of the House of Commons is manifestly inappropriate. Much the same unsustainable contradictions afflict the British government, whose members are embarrassingly unsuited to act as a government for England, while simultaneously having to function as the government of the whole of the UK. Sooner or later these nonsenses will have to be sorted out.
My letter in The Independent prompted two interesting comments, in further letters on 3 February 2007, each accepting the logic of a federal system, but in one case expressing reservations about going the whole hog in the way I had suggested. My blog post of 31 January prompted numerous comments, most of them generally positive, while many advanced various objections to the federal idea. I have promised a considered reply to the more serious of these. This is it, or at any rate Part 1.
The Campaign for an English parliament: English nationalists please sit down, you're rocking the boat
The reaction of several correspondents, both in online comments and in private snailmail, was to welcome me as a convert to the cause of English nationalism. I received literature inviting me to join 'The English Democrats' ("Putting England First! We are English patriots and we are campaigning for our liberties and our rights to live as a sovereign nation… We want a firm but fair immigration system … with 100% enforcement of Deportation Orders…", etc.), an invitation I was not in the least tempted to accept. I received a far more rigorously argued booklet from the 'Campaign for an English Parliament', presenting its case a good deal more persuasively than the slightly noisy nationalism of its website might suggest. The booklet, 'Devolution for England: a critique of the Conservative Party policy "English Votes on English Matters" ' (sadly not available online), does an admirable demolition job on that half-baked Tory policy (under which only MPs for English constituencies would vote on matters affecting only England — thus providing a poor substitute for an English parliament without the inconvenience of an English executive). It also provides conclusive answers to many of the objections commonly raised to the idea of an English parliament. The booklet's presumed author is the Chairman of the campaign, identified (with telephone number and e-mail address) in its latest newsletter for Autumn 2006 (pdf file). In the course of setting out the detailed arguments for an English parliament, the booklet also states the case, almost inadvertently, for a fully fledged federation of the whole UK. Where I respectfully part company with it is in my conviction, as a Brit as well as an Englishman, that the emphasis should be on the benefits of a full federation for the whole of the United Kingdom and all four of its nations: the arguments for an English parliament are unanswerable, but they should be subsidiary to, and always put in the context of, the federal system of which it should form a part.
Meanwhile, embarrassment at some of the excesses of the English nationalists — right-wing extremists in many cases, Europhobes and Scotophobes, xenophobes into the bargain, true Little Englanders — should not be allowed to divert the debate; nor should the noisy wavers of the England flag be permitted to hijack the argument about the need for a true federation, one which should appeal above all to small-l liberals and internationalists of all the mainstream parties.
"England is too much bigger than the others for a federation to work"
This is much the commonest objection to the federal proposal. It seems to me to be based on a misconception. England more or less consistently constitutes 84% of the total population, Wales around 5%, Scotland about 8.5 %, and Northern Ireland less than 3% (yes, I know, they don't add up to 100). The figures alone demonstrate that England is on any reckoning by far the biggest and most weighty of the four nations. But this is a fact of UK life, which no constitutional arrangement can negate. The question is: what kind of UK constitution is best equipped to minimise the negative consequences of England's dominance for the rest of the Kingdom? Put this way, the answer must be that the existing unitary system (i.e. that which existed before devolution went some way to modifying it) does nothing at all to protect the other nations from English dominance: if anything, it magnifies it. The parliament of the whole country, enjoying theoretically unlimited power over every aspect of national life in every constituent nation, was and remains dominated by English MPs. A Conservative majority at Westminster with its accompanying Conservative government could (and did!) impose policies on Scotland (and could still impose a wide range of policies on Wales and Northern Ireland) regardless of the fact that Scotland and Wales usually return a majority of Labour MPs along with their respective nationalist party MPs. It was English dominance that nourished the demand for Scottish self-government, echoed in differing ways by similar demands and aspirations in Wales and Northern Ireland. This is and was the case for devolution: self-government for the three small nations so that they could get out from under the shadow of those 84 per cent of English. Yet even devolution to Scotland of far more autonomy and powers than to the other two (and none at all to England) has failed to quench the Scots' appetite for yet more control of their own affairs, either by further devolution of yet more powers, or else by full independence, spelling the end of the Union. The reality is that full federation, with almost all powers exercised by the individual nations, is the best and only system for protecting the small against domination by the big. So far from disqualifying the UK from conversion to full federation, the overwhelming dominance of England positively demands it. Complete domestic self-government for Scotland within a UK federation would offer us the best of all possible worlds: the benefits of virtual autonomy for the Scots while still giving us all, throughout the UK, the benefits of membership of a single, sovereign, internationally recognised United Kingdom.
Nor is a huge discrepancy between big and small units in a federation unprecedented. There are huge discrepancies between the population sizes of (e.g.) California (36 million) and Wyoming (509,000), and between New South Wales (6.5 million) and Tasmania (470,000 and shrinking), yet their federations work remarkably well. One significant protection for the smaller states, apart from their enjoyment of full control of their internal affairs, lies in equal representation in the federal upper house regardless of population size, as in the US and Australia and elsewhere. As the Wikipedia entry for the Australian Senate says, admitting that the Senate is not strictly numerically 'representative', –
"But the proportional election system within each state ensures that [the] Senate incorporates much more political diversity than the lower house, which is basically a two party body. Consequently, the Senate frequently functions as a house of review, intended not to match party political strength in the lower chamber but to bring in different people, in terms of geography, age and interests, who can contribute in a less politicised manner to the process of legislative enactment."
The UK would need similar provisions, including PR for the federal upper house to ensure that no one party would win an overall majority in it and to enable independents and persons of experience who belong to no party to win election to it. The precise form of the electoral systems for the two federal chambers, including whether we should continue with First Past the Post in the lower, government-creating house, would need to be settled at the all-UK Constitutional Convention tasked to draw up the draft constitution for the whole of the UK for subsequent endorsement in a country-wide referendum. Each of the four nations will similarly hold a national Constitutional Convention to draw up its own national constitutional provisions, including the form and electoral system of each of its parliaments, again to be legitimised and sanctified in four national referendums.
The sole remaining objection in the context of England's relative size is that there's no obvious example of a federation in which a single federal unit is so much bigger than any of the others. So what? It remains a truism that only full federation provides the mechanisms for protecting small against large and weak against strong, regardless of the number of the weak or the number of the strong.
Other problems raised
In a further post here in Ephems (what, yet another one?) I shall deal, perhaps more briefly, with some of the other points that have been raised both in comments on my earlier post and also in the letters published in the Independent: why not content ourselves with setting up an English parliament and then devolving to England, Northern Ireland and Wales the same extensive powers already devolved to Scotland, thus removing the inequalities of the present situation while leaving the Westminster parliament with its full, theoretically unlimited powers and avoiding the need for all the panoply of a formal federation? Why should England continue to subsidise the other nations in a full federation — and how would the others survive without their subsidies from the English? What would be the implications for EU membership? Why should we scrap our centuries-old tradition of managing without a written constitution in a single document, with all the flexibility that this entails, but which a federal system would require us to abandon? Why not abolish England's dominance by splitting it up into smaller geographical units? What would be the consequences for England of doing so, and would they be acceptable? What if the party forming a government in England was of the opposite political persuasion from the majority party at federal (Westminster) level so that they would be permanently in conflict with one another – a real possibility as long as the Tories might well win an England-only election, while Labour might continue to win at the federal level? Why not make the Westminster parliament and government the parliament and government for England, and set up the federal bodies somewhere else — Lancaster has been suggested? More generally, would a federal UK divided into four incomparably stronger self-governing nations mean the end of our British identity: even the end of the Union? You can probably guess the answers I shall be offering to all these questions. They aren't very difficult, really.
Brian
Some more evidence of national decline, including valued contributions by (among others) Peter Harvey and Louise Barder:
"Many middle-class families are struck by financial catastrophy, be it a collapsed pension, a sick relative or a daughter with a vocation for the stage." [Guardian, 9 Feb 07]
“Maybe she was naive to expect the truth. Four years after being killed by an American pilot, Mandy Hull has still to discover why her son was shot by US forces one morning in Iraq.”
[Observer, 4 Feb 2007 : (“Why won’t the US tell us how Matty died?” by Mark Townsend)]
Mr Blair told his audience: "In politics at the top you get used to the periodic storms and I don't for a moment, incidentally, underestimate the volume of this one and whilst you and perhaps more accurately me are in the eye of it.
"It can be hard to stay calm as it rages, but however buffeted, it should not change our course or our confidence." [BBC report, 3 Feb 2007]
See Peter Harvey's comment on this one (spotted by him) here.
"The US media is gripped by election fever (Heading)
The mainstream media dances dutifully… "
[Gary Younge, Guardian 5.ii.07]
("Media… is the plural of medium but is sometimes used in the singular when it refers to the communication media: press, radio, TV; this usage is not generally accepted." Peter Harvey, A Guide to English Language Usage for non-native speakers. "When in doubt, use the plural." Robert Burchfield, Fowler, third ed.)
"Perhaps, though, Mr Haw is a symbol of how the country feels: wanting to give a great roar of inchoate rage in the direction of all politicians."
[Simon Hoggart, Guardian, 10 Feb 07]
(OED: 'Inchoate: Just begun, incipient; in an initial or early stage; hence elementary, imperfect, undeveloped, immature. [Often regarded as unetymologically developed through confusion with CHAOTIC a.]' With great respect to the OED, however, I suspect (with Robert Burchfield's third edition of Fowler's MEU) that the confusion is more often with 'incoherent' – right, Mr Hoggart? What would your ("Uses of Literacy") father have said, eh?
"A brave teenager played for his junior football team just minutes after learning his father had died and won the man-of-the match award."
and –
"Eight people who fraudulently used disabled parking badges have been shamed after being hauled before court following an undercover string operation."
[Quoted as howlers by Riazat Butt in the Northerner, Guardian Unlimited's weekly digest of the best of the northern press, 30 March 06]
~~~~~~~~~~~~~~~~~~~~~~~
There are plenty of much worse perversions of our thick-skinned language in other branches of the print media besides the Guardian and the Observer: it's just that we expect better of them. Well, I do, anyway.
Brian
In a recent letter of mine in the Independent newspaper, I argued the case for permanently solving the West Lothian Question (and resolving many other current anomalies) by completing the half-begun process of turning the UK into a fully-fledged federation, and ceasing to pretend that it is still a unitary state when since devolution it obviously isn't. I subsequently expanded the case in a recent post on this blog .
Intriguingly, Stephen Fry has now asked the prime minister in very specific terms whether, in view of the anomalies exposed by the West Lothian Question, the UK can really 'remain' a unitary state. Mr Blair's reply, unfortunately or otherwise, sheds little or no light on his views on this quite important subject:
Stephen Fry:
There has been a lot of talk about Britishness, in politics there is the whole issue of the West Lothian question, as I believe it was called after Tam Dalyell, in other words the idea that devolution to Scotland has meant that essentially there is something rather unfair about the idea of a Scottish MP having a say in English affairs, and when they have their own parliament shouldn't it be a complete devolution? Is a unitary United Kingdom still on the cards with this kind of breakdown into devolution and also – I am sorry it is two questions – does British mean anything any more, should we actually just say English, and Scottish, and Welsh?Prime Minister:
I think the British set of values that people share does mean something, I think they are distinctively British. I personally think the United Kingdom is still a very meaningful concept for people. I mean I like to think of myself as British, even you know though people will obviously think of themselves as British and Scottish, or British and Irish. But I mean I always think you know from my own situation, my dad was born in England, my mother was born in Ireland and both were brought up in Scotland, and I was born in Scotland and lived all my life in England. Now I don't know quite …
[Podcast interview by Stephen Fry with Tony Blair, 9 February 2007; concluding dots are in the original; my emphasis -- BLB]
I'll put some further thoughts on the federalism argument, in the light of several interesting and stimulating comments on my earlier piece, in a new post here shortly. But I thought our prime minister's response to the direct question (unfortunately accompanied by a second and much easier question) deserved a post of its own. Now we know, or not, as the case may be.
Brian
