[Note: The following comments on police behaviour at protest demonstrations were originally sent in an e-mail by "a young man who blogs under the handle Jamblichus" (his own description) and arose out of some comments on a rather different but related subject in this blog.
Jamblichus wrote as follows:]
The notion that the police “predictably” but not “justifiably” respond disproportionately to protestors who are being provocative implies that in such cases, justifiably or no, protestors “bring it (a fierce police response) upon their own heads”. This is the trope that pretty much gets wheeled out by most who watch often deeply biased coverage of protests on TV and can’t quite get their head around quite how nasty the police can be with protestors who are not, by any means, violent or provocative.
So, I assume from that comment you haven’t been on any protests recently. (Tomlinson didn’t really look that provocative to me…) And despite his death, HMIC’s report on the G20 protest (Adapting to Protest), interestingly often seems more concerned about the perception of the police than their actions themselves. (“The high volume of publicly sourced footage of the protests, including the events leading up to the death of Ian Tomlinson, has demonstrated the influence of ‘citizen journalists’ – members of the public who play an active role in collecting, analysing and distributing media themselves. Consequently, individual and collective police actions are under enormous public scrutiny.”) Well yes, as you’d hope when an unarmed man has been wilfully assaulted by police officers and died as a result!
The report calls for “Awareness and recognition of the UK press card by officers on cordons, to identify legitimate members of the press.” But what use is a press card when police officers are unconcerned if you are press or not? On April 2nd there was a Section 14 notice (under the Public Order Act) issued to the press. A City of London Police Inspector told the press to “Go away for half an hour and possibly come back to help us resolve this situation.” For example, the Met have been all over photographers recently, using section 76 of the Counter Terrorism Act 2008 to rough up those legitimately covering protests. The Home Office claimed that photographing police officers (which the act essentially criminalises) would only be deemed an offence in “very exceptional circumstances”, they added that “for the offence to be committed, the information would have to raise a reasonable suspicion that it was intended to be used to provide practical assistance to terrorists”. Terrorists? What a crock of shit. They are using section 76 willy-nilly…
(The report also has an interesting omission, when it notes: “An article titled ‘The Summer of Rage Starts Here’ was published on a popular protester website by a member calling themselves London Anarchists” … Totally failing to mention that the phrase “Summer of Rage” was coined by David Hartshorn, who heads the Met’s public order branch. Also the genius who called the police plan “Operation Glencoe”?)
The police are entirely out of control when it comes to managing protests: just a few examples other than the G20. The “pre-emptive” arrest of 114 environmentalists at a Steiner school (“conspiracy to commit aggravated trespass”?); the incredibly aggressive and intrusive filming of all and sundry at any form of protest by police Forward Intelligence Teams (FIT) — until you have experienced this first hand, you have no idea quite how intimidating and downright disturbing it is — the use of RIPA by local authorities to mount 10,000 surveillance operations over the past five years (in 2000 only nine agencies were allowed to go into the spying business; now, more than 800 bodies have been so empowered…)
You slapped down my thoughts about context in the Green case as largely irrelevant to the legal ins and outs, which was fair in a sense. Yet even Dame Stella Rimington has warned the government of creating a “police state” and police are, I think, stretching the boundaries of what is acceptable in a democratic society, and not just when provoked. Here’s what the NUJ’s in-house magazine had to say about this recently:
NUJ General Secretary Jeremy Dear wrote to Home Secretary Jacqui Smith in May, complaining of “intimidatory policing”. He cited examples of police officers who know journalists by name, follow them and film them all the time they are working.
Regular, low-level intimidation of photographers often goes unreported. David Hoffman, a freelance with more than 30 years experience, told the Journalist: “If you’re just walking down the street and taking a picture of police on the beat, when you’re well away from any problem and not causing an obstruction, they come over and interfere. “It happens constantly. In May I was taking pictures of the party on the London tube — the last day people could drink alcohol — from a good distance when two police officers started pushing me around and put a hand over my lens. There was no reason at all. I was simply recording the event and they stopped me because they thought they could. That’s a very typical incident. That will happen to me once a week if I’m out working.”
This is the absolute tip of the iceberg for those who are either working to cover such stories or engaging in protest. You can expect for your pains (and no, not as a result of provocation) to have your face punched, hair pulled, shins smashed by the police and probably end up with a criminal record. Purely because as a middle class person with a passing interest in the issues of the day you decided to take to the street, thinking it was in some sense a vital part of a democracy to support the right of people to make “legitimate” protest. (After all, isn’t it one of the biggest gripes of our elected representatives that the youth of this country are depoliticised and apathetic?)
That, in short, and speaking from some degree of personal experience, is the “context” of which I spoke. Hence my, and no doubt a few others’ somewhat knee-jerk reaction to the raid. I know from reading your blog that you are committed to civil liberties and don’t mean to sound shrill. Just to emphasise some personal experience and context for my comment.
– Jamblichus
____________________________
[In reply, I wrote:]
I’m grateful to you for going to so much trouble over this — and for your thoughtfulness in not, as you put it, wanting to “clog up your [i.e. my] blog with tangentials”. I wouldn’t for a moment dispute either your general case against the police over their behaviour at demonstrations, or your specific examples of police misbehaviour. I entirely agree that the hundreds of new and mostly badly drafted offences created by New Labour in the torrent of rushed legislation under the pretext of the so-called war on terrorism are a threat to our basic liberties, and that they have (utterly predictably) been grossly abused on a heroic scale by the police as justification for harassment — and worse — of often entirely innocent people in contexts that have absolutely nothing to do with terrorism. Much of the blame for this disastrous state of affairs rests squarely on MPs of both the major parties for their pathetic failure to strangle these disgraceful laws at birth: Labour MPs, with a few creditable exceptions, out of slavish obedience to the whips and in many cases personal political ambition and hopes of patronage; Tories out of indolence, an instinct for anything authoritarian, and the fear of being labelled by an unscrupulous Labour government and the equally unscrupulous tabloids as being “soft on terrorism” for daring to oppose whatever measures ministers cared to place in the capacious anti-terrorism folder.
My suspicion is that Blair, Brown and successive Labour home secretaries have not consciously or deliberately phased in, year after year, this menacing apparatus of the police state: they have simply been terrified of laying themselves open to the charge of negligent inactivity in the event of another terrorist outrage. They are obsessively risk-averse, incapable of making a sensible assessment balancing the extent of a risk against the cost of measures to prevent it materialising, and desperate to build up a record of having “done something about it” to protect themselves, at whatever the cost. As a result we are all losers — and the risk of another successful terrorist attack has anyway hardly been measurably diminished, other than by patient, thorough, painstaking detective work by the intelligence and security services, including many police.
The next time a minister or a policeman tries to justify some law that abridges our human rights and civil liberties by promising that it will be applied and enforced only very sparingly and only in the context of the war on terrorism, he
or she should be howled down with shouts of “Liar!”, before being hauled off to the Tower as a traitor and a danger to a free society. Yet they keep on doing it.
As for the question of provocative behaviour by some — probably a smallish minority — of protestors and demonstrators, including sometimes acts of violence (such as breaking windows, throwing missiles at the police and assaulting individual policemen), I take it that you wouldn’t deny that such things happen. You don’t have to be physically present at many demos to know that it’s so: you have only to turn on your television. I have emphasised that misbehaviour by protestors and demonstrators can’t justify corresponding (or even worse) misbehaviour by the police. But it’s a statement of the obvious that it helps to explain it. You and I both know that there are people out there, in numbers that no-one can quantify, for whom participation in a demonstration, especially one that’s likely to involve a punch-up with the police, is a blood sport to be enjoyed, rather than a gesture of support for whatever cause the demonstration is all about. Certainly the police bear some of the responsibility for the growth of these attitudes and this behaviour, but the people concerned have to accept the greater part of the responsibility for their own actions, as in any other sphere of human behaviour. The death of deference and the rise of contempt for authority are facts of life, in some ways healthy, in others profoundly damaging. Among other consequences, the kinds of people who are nowadays attracted by the idea of a career as a policeman (or prison officer) tend to include a higher proportion of people who are temperamentally unsuited to such a career, and a lower proportion of people motivated by idealism and social responsibility — the old-fashioned Dixons of Dock Green. OK, PC Dixon was absurdly idealised, no doubt: but he represented an idea of policing which has now largely vanished.
You’re quite right to guess that I haven’t taken part in any big political demonstrations lately. For much of my life I’ve been disqualified from doing so by the constraints on the freedom of political activity rightly laid on all public servants. Before I joined the public service I marched (or at any rate shuffled along) with thousands of others against the criminal folly of Suez, and after I retired from it I shuffled along again with thousands of others against the criminal folly of Iraq. On both occasions such police activity as I witnessed was impeccable: so was the behaviour of my fellow-protestors, at any rate those whom I could see. I think standards of behaviour on both sides have deteriorated since then and I now prefer to try to make my dissenting and protesting views known and felt by other means (and means more appropriate to my age, by the way!). But I don’t accept that this disqualifies me from holding an opinion about who (including the cops) does what and to whom, at marches and demonstrations as reported in the media and recorded for television. Nor do I accept that the innocence of a single victim of police violence such as the luckless Mr Tomlinson proves anything about the guilt or innocence of others who have been involved in violent struggles with the police. Some have undoubtedly been engaging in lawless and provocative behaviour; others have clearly been completely innocent passers-by or peaceful
demonstrators who have been doing nothing whatever to warrant violent attacks by policemen, nor even non-violent harassment by filming and photographing and kettling and the rest of it.
It’s a dreadful mess, and I don’t see much likelihood of any future government either cleaning out the legislative Augean stables or reining in the police. Nevertheless it’s absolutely vital that voices of outrage at what is happening, such as yours and that of organisations such as Liberty, should continue to be raised time and again until our elected leaders begin to take some notice. After all, it is they who got us into the mess, and it’s mainly their responsibility to get us out of it, which they won’t bother to do unless fiercely and continually prodded.
Brian
['Jamblichus' has agreed to the transfer of his and my e-mails to this blog.]
A new post on LabourList provides a useful summary of the various alternatives to our current system of First Past the Post (FPTP) for elections to the house of commons currently being hawked around in much of the vaguely left-of-centre press, especially in the Guardian and the Observer. Polly Toynbee in particular seems quite unable to write a column without including a commercial for Proportional Representation. However, the advantages and drawbacks of each of the systems discussed in LabourList seem to me (and to at least one other reader of LabourList who has commented on it) to be somewhat skewed in favour of a change in the electoral system, over-stating some of the arguments in favour and omitting some of those against.
I have appended the following rather lengthy comment to the LabourList post in an effort, probably doomed, to help correct any imbalance. This can usefully be read, if anyone’s interested, in conjunction with what I have written previously on the subject:
This otherwise useful summary of the various options omits any mention of a (to my mind) crippling defect in all the systems which involve transferring votes: in AV, the only votes that get to be transferred are the second preferences of those whose first preference went to a candidate who has been eliminated (because he/she has come bottom of the list at the first or subsequent recount). In many (most?) cases, the candidates who come bottom of the poll and are eliminated in the early counts are frivolous egotists and exhibitionists, other weirdos, or candidates of far-out extremist parties or causes. It’s not clear why those who give such no-hoper candidates their first preference votes should have their second preferences given so much more weight in the eventual result than those who gave their first preference votes to mainstream candidates, and whose second preferences will never even be counted if their candidate is never eliminated. Votes cast are thus treated unequally, those for eliminated candidates given more weight (by virtue of the redistribution of their second preferences) than those cast for candidates not eliminated. This hardly qualifies as ‘fair’. The same unequal weight objection applies, mutatis mutandis, to the Single Transferable Vote system.
There are in addition serious drawbacks to having more than one MP for each constituency (as STV would entail), notably that it breaks the invaluable convention that a single MP, once elected, represents the interests of all his constituents, not just those who voted for him (or her).
There is also the obvious illogicality in all preference vote redistribution systems of pretending that first and second (or even third) preference votes are of equal weight, simply in order to be able to claim that the winning candidate has had the ‘support’ of the majority of the votes cast, whereas (unless he or she won more than 50% of the votes at the first count, in which case no second preferences need to be redistributed other than to the other candidates in multi-member constituencies) it’s obvious that on the first preference count, which is the only one that accurately reflects voter choice, a majority of the votes were actually cast against the eventual winner. The fact is that nationally, and in most individual constituencies, no single party ever commands the support of 50% or more of the electorate, and this is inevitably reflected in votes cast at elections. Fiddling around with redistributions of votes from one candidate to another can’t magically transform this reality into an apparent overall majority for a particular candidate. A voter who has cast a first preference vote for candidate A can’t meaningfully be said to have voted ‘for’ candidate B, even if B is eventually given his second preference vote when preferences are redistributed. Thus the principal argument generally advanced in favour of redistribution systems such as AV and STV, namely that they ensure that every MP has had the support of a majority of the votes cast in the relevant constituency, is bogus.
The objections to any party list system, an essential element in the horrendous proposals by Roy Jenkins and his Commission, are obvious. They put even more power into the hands of the party apparatchiks than they already have, enabling them alone to decide which politicians are included in the list and which are excluded from it. Guess which independent-minded, maverick members of each party’s awkward squad are going to make it onto the list! The electorate has no say in the matter, even if the list is an ‘open’ one in which voters are allowed to express preferences as between the various names on the party list. This objectionable system is one of the many reasons for the abysmal turnout at elections in the UK to the European parliament, conducted inexplicably under the party list system. The last thing we should want is to introduce it as part of the system for electing members of the house of commons, and thus for electing governments.
But above all the objections to any system that will always deliver coalition governments (as true PR always will) are surely decisive. It will always empower a party which has won fewer seats and votes than either of the two main parties to decide which of those two main parties is to get the keys to No. 10 Downing Street. Both the parties which come in first and second will have to bargain, after the voting has finished, with the minor parties in order to negotiate changes or additions to their election manifestos sufficient to guarantee enough support from one or more of the minority parties to secure a majority for the coalition (whether formal or informal) in the house of commons. Thus the government taking office will have a programme that has been drawn up or finalised only after the election has taken place and for which not a single voter can have voted. The majority partner in the resulting coalition is then permanently at the mercy of its minority partner(s), who can bring the government down at any time, on a whim or following a personality clash, and put the other main party into office instead, without a single voter having any say in the change of government. It’s no good saying this doesn’t happen in practice: it has happened at least once in Germany since the war and is a permanent feature of the system in Israel, where moderate centrist governments are constantly held to ransom by right-wing extremist minority parties on whom they depend for their continuing majority support in parliament.
Finally, a change in the present electoral system (tendentiously referred to as ‘electoral reform’!) is far too momentous a constitutional change to be introduced, or even to be submitted to a national referendum, without the broad agreement of all the main parties across the political spectrum. It certainly should not be imposed by one party on the rest without their agreement, for the temporary political advantage of the party in power. If a referendum is to be held, it should be preceded by a lengthy period of consultation and information in which the pros and cons, especially the cons, of each of the options can be extensively debated and publicised. Simply to ask if one is in favour of electoral ‘reform’ is almost to guarantee a Yes vote, and that’s liable to land us in an even worse mess than we’re in already.
It’s easy to pick holes in First Past the Post, but few commentators in the current febrile atmosphere seem to be willing to point out the even bigger holes in every one of the alternatives. As Churchill said of democracy, FPTP is a terrible system; it’s just that all the others are even worse.
Apologies for the length of this.
Brian
A new website, OpenLeft, founded by James Purnell MP, former cabinet minister (the one who in his resignation letter invited Gordon Brown to ‘step aside’ as party leader and prime minister), under the auspices of the think-tank Demos, 
describes itself as “a project aimed at renewing the thinking and ideas of the political Left. We seek an open conversation across the Left about the kind of society we want and how we can best bring it about.” OpenLeft says that “To kick off the debate we have asked ten leading left-wing figures to answer six questions that go to heart of what it means to be on the Left. Read their responses below, and click Join the Debate to add your own.” Not one to look an ex-cabinet minister’s gift horse in the mouth, I accepted the invitation with a characteristically lengthy attempt to describe by quoting examples what I take to constitute a position on the political left — too lengthy, it turns out, for OpenLeft which has published my reply in truncated form. No complaint: it is indeed rather long. But here, for the record, is the full text of my answers to Mr Purnell’s six questions, or rather seven if you count the interrogative heading:
What do you think it means to be on the Left?
There is a broad left-to-right spectrum of values and priorities and most people can quickly see where on the spectrum they belong. The two ends of the spectrum may be summarised (in simplified form) like this:
- Liberty, human rights >>> <<< Discipline, restraint, order, social responsibility
- Change and reform >>> <<< Stability, continuity
- Compassion >>> <<< Competition
- Concern for the underdog and the vulnerable >>> <<< Respect and admiration for the rich and successful
- Scepticism about most forms of authority; tendency to be rebellious >>> <<<Respect for most established authority, natural instinct to support and conform with it
- Belief in maximum equality, including equality of outcomes >>> <<< Belief in equality of opportunity and the need for inequality of outcomes for reward and incentive
- The public service and government as principal agents for essential services, change and reform >>> <<< Minimum government, small public sector, maximum role for private sector and individuals
- Taxation as means of financing public services and reducing inequality >>> <<< taxation a burden on private initiative, to be minimised
- Prison mainly for reform and rehabilitation >>> <<< Prison mainly for punishment and retribution
- Responsibility of rich people to help the less well-off >>> <<< If most poor people worked harder they too could be rich and successful
- Need for rich countries to help to relieve poverty in the third world >>> <<< Most development aid is wasted and lines the pockets of corrupt and incompetent third world politicians
- Trade unions as a necessary protection for employees’ interests >>> <<< Unions often hamper managers in their responsibility for managing
- Politicians as necessary and valued agents for change and reform >>> <<< Politicians meddle in business and the economy for ideological rather than practical reasons
- Private sector and the profit motive generally equate to exploitation of the consumer and the employee >>> <<< Private sector the only creator of wealth, and the profit motive a necessary incentive
- Society should promote the interests of those least able to help themselves >>> <<< Advancement purely on merit in a relentless meritocracy, and the devil take the hindermost
There’s often something to be said for the propositions or concepts at both ends of a particular item, and individuals may find that on some items they can comfortably endorse or sympathise with both simultaneously: several are not genuine opposites. Most would prefer to re-word most if not all of the choices and to refine them, as indeed Eysenck did 40 years ago.. But most will also feel an instinctive affinity with one end of the spectrum in each case more than the other, and will probably wind up endorsing the majority of first propositions or the majority of the second.
What is it about your political beliefs that puts you on the Left rather than the Right?
I instinctively as well as by conscious choice identify myself with all the first alternatives in my list and with virtually none of the second.
What do you consider made you Left wing?
Reading George Bernard Shaw and the New Statesman as a teenager. Experiencing the manifestations of the British (or English?) class system during my national service in the army (and subsequently).
How would you describe the sort of society you want Britain to be?
Much more equal in both wealth and income. Far fewer class distinctions. Culture and the arts accessible to all. More realism about Britain’s limited role in the world and the value of a more active role in the EU. Withering away of the more populist, reactionary and unscrupulous tabloids. Greater public control and regulation of the financial and banking sectors and the utilities. An extension of public (including municipal and co-operative) ownership into significant areas of the economy.
What one or two changes would make the biggest difference to bringing that about?
1. Abolition of private, fee-paying schools and medicine (inconceivable under any government, I know, but you asked the question!).
2. A huge improvement in the standards of state education from nursery school onwards.
What most makes you angry about the way Britain is now?
The evil influence of the most irresponsible tabloids. The yawning cultural gap between our Two Nations, and the tragic deprivation which it entails. The way so many of our major companies rip us off with complete impunity. Gross over-centralisation of political power and the constant itch of our rulers to micro-manage us. The blindness of our political leaders who can’t see that with devolution we have moved half-way into a federal system and that completing that process will solve so many of our otherwise insoluble constitutional problems and anomalies. The pathetic risk-aversion of our leaders in all political parties and their cowardly lack of radical reformist ambition. The economic illiteracy of huge swaths of our governing class, the media and the general population. The betrayal and corruption of the Labour Party.
Which person, event, era or movement from the past should we look to for inspiration now?
The post-war Attlee government. R H Tawney. The younger Lloyd George and Aneurin Bevan. Michael Young, Peter Townsend, Tony Crosland and Dick Crossman. John Maynard Keynes. Lord Beveridge. Michael Foot (no, seriously). Thomas Jefferson. Georges Jacques Danton.
____________
On the same website I have had what seems to me an interesting and amicable exchange of views with Sunder Katwala, the General Secretary of the Fabian Society, about the place of “equality of opportunity” and the “meritocracy” in the values and objectives of the left. I argue that if equality of opportunity, an obviously desirable aim in itself, is the limit of one’s ambition as regards equality generally, it doesn’t go anything like far enough and is an icon of the right, not the left; and I recall that the much-missed Michael Young, who coined the term ‘meritocracy‘ as a warning of the injustices and cruelties of a dystopian meritocratic society, was bitterly disappointed towards the end of his long life to find the term ‘meritocracy’ being used by Tony Blair and others as a legitimate and supposedly progressive objective for a Labour government.
It’s fashionable to dismiss the ideas of ‘left’ and ‘right’ in politics as having long ago ceased to have any meaning. I think that on the contrary they are as useful as ever, and I hope that the debate sparked by Mr Purnell and his OpenLeft website will help to revive them.
Brian
Jack Straw’s Constitutional Reform and Governance Bill is a feeble affair: the term ‘rag-bag’ might have been invented for it. It lacks not just vision and any trace of radicalism but even a coherent theme. Gordon Brown began his premiership with the promise of constitutional reform as his keynote, either an enticing or an alarming prospect, whichever way you look at it. Horace accurately predicted the outcome:
Parturient montes, nascetur ridiculus mus[1]
We all turned eagerly to our Guardians on 20 July, immedately after Straw’s Bill had been laid before parliament, to read the analysis of it by no less a personage than the Professor of Government at Oxford University, Vernon Bogdanor (his book The New British Constitution is to be published next year, so Horace’s mountains are in labour again). Alas, the professor’s commentary was no more illuminating or radical than the Lord Chancellor’s Bill. I submitted some remarks about it in a letter to the Guardian, which however evidently felt too protective towards its eminent contributor to publish it, so I offer it here instead:
Professor Bogdanor‘s commentary on Jack Straw’s constitutional reform proposals (Straw has wasted his chance to wield the reformer’s broom, 21 July) is disappointing, especially coming from such a distinguished authority. He lists some quite minor items missing from the Bill, but without mentioning its most conspicuous and negligent omissions: the sorry failure to offer any answer to the West Lothian question, any measures to head off the disintegration of the UK through the movement for Scottish independence, or, in the same context, any intention to complete the unfinished process of devolution. Professor Bogdanor writes that under the Bill “the hereditary peerage will atrophy until it entirely disappears,” whereas the Bill proposes only to phase out hereditary peers’ membership of the House of Lords. He says that “Measures will be taken to expel peers, such as Lord Archer, found guilty of serious crimes,” whereas the Bill itself makes it clear that this will not apply retrospectively, so Lord Archer’s seat in the Lords should be safe. Professor Bogdanor recalls that “in 2000, Labour gave 5% of registered electors the power to require a referendum on whether their authority should have a directly elected mayor,” but then equates this with enabling “5% of the voters [to] be entrusted with choosing a mayor,” a very different matter.
Above all, his suggestion that a percentage of the population of each locality should “be entrusted with making wider decisions about the nature and scope of local services, even of services such as the NHS, which are not administered by the local authority” blurs the vital distinction between participatory and representative democracy, the latter meaning that we elect representatives to take political decisions on our behalf rather than taking those decisions ourselves. The disastrous consequences of decision-making by popular referendum (other than on the most significant constitutional issues) can be seen in the parlous state of California’s finances. We should prefer Burke to Bogdanor on this.
I have written elsewhere denouncing the idea of ‘participatory democracy’ so there’s no need to repeat my views on that misbegotten idea now. But Professor Bogdanor’s apparent enthusiasm for it tends to blunt one’s enthusiasm for reading his promised book. The professor has been loaded with honours of every kind for his ubiquitous contributions to the constitutional debate in Britain — the list of those honours occupies several paragraphs of his Wikipedia entry — but not least of these must be his status as David Cameron’s former politics tutor at Oxford. According to Wikipedia, –
he has described [David Cameron] as “one of the ablest” students he has taught, whose political views were “moderate and sensible Conservative”. Professor Bogdanor has, however, expressed reservations about certain policies of Cameron’s, notably his proposal for a British “Bill of Rights”, about which Bogdanor said, “I believe it’s ill thought-out and confused … He [Cameron] may have forgotten some of the things I’ve taught him. I’d be happy to give him a few more tutorials on civil liberties.”
He [Bogdanor] referred to the arrest and questioning of a conservative MP, Damian Green, by Special Branch police as “a storm in a teacup” — “The important principle is that MPs – apart from when they’re speaking in the chamber and dealing with constituents’ correspondence – are as subject to the same laws as the rest of us.”
Well, we can agree with the good professor, then, about the Tories’ proposals for a British Bill of Rights and the arrest of Damian Green (on which my similar views are set out at rather greater length here and here), whatever we might think of his dubious analysis of the wretched Constitutional Reform and Governance Bill.
PS: Another dismal feature of the so-called Constitutional Reform (etc) Bill is its inexplicable and indefensible insistence that while the remaining heredity peers’ membership of the House of Lords is being laboriously phased out as their Lordships are culled, one by one, by the Grim Reaper, nevertheless the Church of England is to keep its weird privilege of appointing a selection of its bishops and the Archbishops to membership of the second chamber of our legislature. Law-making by priests — of one sect only — is to continue. Considerations of space inhibited me from mentioning this absurdity in my abortive letter to the Guardian; the Oxford professor, with more Guardian space available to him, doesn’t mention it either. Muslims, Roman Catholics, Jews, atheists, etc., etc., take note.
[1] The mountains will go into labour and a ridiculous mouse will be born.
Brian
J and I are still reeling from the effects of the film Katyn, the latest product of the great Polish director Andrzej Wajda, and indisputably a masterpiece. Watching it is a gruelling experience, but a hugely rewarding one. Although theoretically on general release in the UK, it’s not easy to track down any of the few cinemas currently showing it; some Googling may be required for British movie-goers.
The film follows the impact on four fictional Polish families of the all-too-real tragedy in the Katyn forest in Russia of the –
mass murder of thousands of Polish military officers, policemen, intellectuals and civilian prisoners of war by Soviet NKVD, based on a proposal from Lavrentiy Beria to execute all members of the Polish Officer Corps. Dated March 5, 1940, this official document was then approved (signed) by the entire Soviet Politburo including Joseph Stalin and Beria. The number of victims is estimated at about 22,000, the most commonly cited number being 21,768. [Wikipedia]
For years during and after the second world war the official Soviet (and therefore also the Polish Communist party) line was that the massacre had been perpetrated in 1941 by the German SS when the Katyn forest area was under German occupation. It was however widely known in Poland and in the west that in fact this had been a Soviet NKVD crime, committed in 1940 when the Katyn area of Russia was still under Soviet control. During the war western governments refrained from placing the blame for the massacre where it belonged, on their war-time ally the Soviet Union, for fear of the consequences for the war-time alliance against Hitler in which the Russians were playing such a vital part. After the war, with Poland under effective Soviet domination, the fiction was maintained for a long time, and in communist-governed Poland it was a serious, potentially capital, offence to allege that the murder of the flower of the Polish intelligentsia and its officer corps at Katyn had been the work of the Russians, not the Germans. During my own time in Poland (1986-88, just before the collapse of Soviet communism in Europe) we would visit the Warsaw cemetery to see the officially-erected Katyn memorial where the reference engraved on the memorial to the Hitlerite fascists as the perpetrators of the massacre was constantly defaced or gouged out by Polish patriots and the correct (and damning) date ’1940′ inscribed or painted in its place, thus indicting the Russians. On All Souls Day the Poles would gather at the memorial and hold a candle-light vigil, softly singing patriotic Polish songs and hymns; they probably still do:
In 1981, [the] Polish trade union Solidarity erected a memorial with the simple inscription “Katyn, 1940″ but it was confiscated by the police, to be replaced with an official monument “To the Polish soldiers – victims of Hitlerite fascism – reposing in the soil of Katyn”. Nevertheless, every year on Zaduszki, similar memorial crosses were erected at Powazki cemetery and numerous other places in Poland, only to be dismantled by the police overnight. Katyn remained a political taboo in communist Poland until the fall of the Eastern bloc in 1989. [Wikipedia]
The name Katyn thus has a terrible resonance in the minds of all Poles.
Wajda’s intensely moving film won’t always be easy to follow for those unfamiliar with the Katyn story or with Polish geography, requiring especially a rough understanding of the areas of Poland occupied in the early part of the war by the Germans and the Russians respectively. There are of course many accounts of the Katyn massacre on the web and I would recommend refreshing one’s memory of the principal facts and dates before seeing the film by reading one or other of them, unless you’re already fully au fait with them. The Wikipedia account is probably as good as any. But on no account miss this moving and gripping movie by one of the great masters of the cinema. (Watch out for sign-posts in the film to some of its tragic themes: the theatre to which a young woman sells her hair for use in a stage wig, in order to pay for a memorial stone honouring her Katyn victim brother, is staging ‘Antigone‘, as we learn from a poster glimpsed in the foyer: the young woman, we suddenly realise, is re-enacting Antigone’s tragic role but in real life.)
Wajda is now 83, so there may not be too many more masterpieces from him.
Brian
In a recent post on a number of current issues, I mentioned my belief that the police had been justified in arresting Damian Green MP for questioning, and searching his parliamentary and other offices, for evidence about the official material which a mole in the Home Office had been leaking to him without authority for a period of some two years. I also suggested that the Speaker and his parliamentary officials had been right to permit the police to pursue the investigation in the way they had done. These views triggered an exchange of sometimes lengthy comments and responses between Chris Vine (CV) and myself (Brian) which seemed to me sufficiently meaty and informative (at any rate in regard to Chris’s contributions) to warrant reproduction in a new post. Chris agreed and here it is. Chris’s comments are in upper case; my responses in italics.
CV: T
he question whether it was right for Speaker Martin through the Serjeant at Arms to allow the police to search premises, examine computer systems and remove articles of Parliamentary as well as private property from offices in the Palace of Westminster is open to debate. Or at least, I think it is open to debate whether a search warrant could have been issued for entry into the House in order to do so, were consent not given, so far as it were to involve seizure of property of the House (seizing its computer systems for example could bring its business to a halt and they are analogous to its papers).
However it was plainly wrong (in my view) for the police to invoke the old common law offences of misconduct in public office and conspiracy merely because the statutory offences in section 2 of the Official Secrets Act 1911 had been repealed and replaced by more restrictive offences in the Official Secrets Act 1989 (the long title of which was “An Act to replace section 2 of the Official Secrets Act 1911 by provisions protecting more limited classes of official information”). The idea of the 1989 Act was to protect whistle-blowers up to a point – the line being drawn where the leak might be damaging within the terms of the 1989 Act. (The object was also to remove a public interest defence in the 1911 Act which worked against the prosecution in the Clive Ponting case).
In order for official information to be protected under the 1989 Act as an official secret, normally it has to fall into one of the categories that could give rise to an offence under that Act, that is to say security or intelligence information, defence information, information concerning international relations, foreign confidences, information which might lead to the commission of crime, and information obtained under the special investigation powers in the Interception of Communications Act 1985 and the Security Service Act 1989. In addition the disclosure normally has to cause harm to the UK or its interests as set out in the Act for the category in question, or (broadly) it could reasonably be believed that harm could occur.
If a civil servant were improperly to pass other (unprotected) information to, say, a journalist or member of Parliament, that is not to say that the civil servant concerned would not have breached the terms of his or her appointment as a civil servant and be liable to disciplinary action and dismissal (he or she would be likely to be dismissed and might suffer other civil sanctions), but that is a civil rather than a criminal matter.
The information obtained by Damian Green was not protected as an official secret by the 1989 Act. In my view it was quite wrong to circumvent the explicit purposes of and restrictions in the 1989 Act by instead relying on the common law offences of conspiring and committing misconduct in public office. A jury would almost certainly have been of the same opinion, and it is that conclusion which persuaded the DPP not to go ahead. Parliamentary democracies with entrenched human rights do not need to reach into their bag of old common law offences of uncertain scope when a statutory provision dealing with that area has already spoken. It is pretend democracies, outright tyrannies and failing governments which do that.
Brian writes: Thanks for this weighty comment. I understand the points that you make. But wasn’t the situation at the time of the arrest and questioning of Damian Green and the search of his office that neither the Home Office nor the police had any means of knowing what other material the mole had been leaking to Green in addition to the material whose leaks they did know about? It seems to me that it was legitimate to try to discover whether the mole had also been passing over information which was protected by the Official Secrets Act, even as amended or replaced by the 1989 Act, and that questioning Green and searching his office computers and papers was the most promising (indeed perhaps the only) method of finding out the answer to that rather important question. You’ll remember that the home secretary at the time was stressing that a lot of very sensitive material touching on national security passed through her private office (where the mole was working) and that since the leaking was so systematic and had been going on for more than two years, there was a natural fear that some of this national security material might well also have been leaked, in which case the OSA, 1989 edition, would have come into play.
I also think you’re possibly being a little hard on the police when you say that “it was quite wrong to circumvent the explicit purposes of and restrictions in the 1989 Act by instead relying on the common law offences of conspiring and committing misconduct in public office”, when in fact they didn’t charge anyone under either offence, and presumably couldn’t have chosen between the common law offence and the 1989 OSA until they had searched Green’s office and questioned him. If they cited the common law offence as the one under which they were carrying out the arrest and search, that was presumably because at that stage they had no evidence to support a charge under the 1989 OSA although they must have thought it possible that by the end of the day they would have found some, in which case they could have charged him under the more serious offence. As I said in my post, the DPP made a point of saying publicly that his decision not to charge Green or the mole was not to be taken as meaning that no offence had been committed. The assessment that any jury would have been reluctant to convict Green (of either the OSA or the common law offence) surely just acknowledges that the media (naturally!) had represented him as a great hero and victim and that whistle-blowing is generally represented in the media as a very brave and heroic act, reflecting the media’s vested interest in encouraging civil servants to betray their elected bosses by leaking stuff which makes a good story. A refusal to convict probably wouldn’t have meant any more than that. But it made it pointless to charge either of the two conspirators people concerned.
CV: I am sorry for the further great length of this but I think what you says needs a further response.
Although not in the end charged, Damian Green was arrested on 27 November 2008 for “aiding and abetting, counselling or procuring the alleged offence by Mr Galley [of misconduct in a public office] and also on suspicion of conspiring with Mr Galley for him to commit misconduct in a public office”. The police also executed a search warrant with respect to his home in connection with these offences on arrest at his home.
On your particular defences for the police, I don’t think that it is right (if that is what they were doing) to arrest and search on suspicion of the superseded common law offence merely as a “make-weight” in the hope that they may find evidence of an offence under the 1989 Act, nor do I believe that a fear that “if we don’t catch him soon, then he might leak protected information relating to national security” washes except in a Mugabe or Putin-like world. That seems much too close to me to the “you don’t need to worry if you’re not guilty” approach to human rights, or predictive guilt for an uncommitted crime.
Otherwise there is a great danger that the police could in effect be used to carry out leak investigations for the civil service in cases where everyone knows the 1989 Act will not bite.
The fact of the matter was that all the information which was leaked to journalists and Damian Green, and which the police were investigating, were embarrassing for the Home Secretary rather than having any security implications. What alarmed the Home Office was the continuous nature of the leaks and the fact that it made running the Department very difficult. These are good reasons for catching and sacking the individual concerned. They are not good reasons, I submit, for arresting and carrying out a 12 hour search of an MP’s (or anyone else’s) house on vague common law offences because they knew that the leaks did not fall within the classes for which statutory offences had been explicitly provided by Parliament in the 1989 Act. At the end of the day unfortunately I think this was a Home Secretary and a then Assistant Police Commissioner out of their depth.
As an aside (it doesn’t go to the principle of my point) the Commons Home Affairs Select Committee’s report found that civil servants “exaggerated” the seriousness of Home Office leaks which led to Mr Green’s arrest, possibly out of “frustration” at the situation and that it had been “unhelpful to give the police the impression that the Home Office leaker had already caused considerable damage to national security”.
In any event, I do not believe that the police were, as you suggest, seeing if they could find evidence to make the statutory offences stick because they did not have any leaks to consider which could have engaged the statutory offences. What the DPP was considering was whether to prosecute for the common law offence and what the police were doing was investigating whether there was sufficient evidence to forward the file to the DPP with that in mind. I accept on this that the DPP is on your side in the limited sense that he was willing to run with the common law offence as an object of consideration, as in his decision he said this:
“30. I have concluded that there is evidence upon which a jury might conclude that there was damage. The integrity of the Home Office arrangements for handling restricted and/or confidential information was breached. That caused damage to the proper functioning of the Home Office, which was exacerbated by the prolonged period of the alleged leaks, the on-going relationship between Mr Galley and Mr Green and the sensitivity of the material to which Mr Galley had access. One of the principal concerns at the Home Office was that whoever was responsible for the leaks in question may have had access to Ministerial papers and that there was a potential risk that highly sensitive material relating to national security might be disclosed. This damage should not be underestimated and once the pattern of leaks was established in this case, it was inevitable that a police investigation would follow.
“31. … But, it is important that a breach of duty that might best be considered as a disciplinary matter should not be elevated to a criminal offence simply by virtue of the fact that the person leaking the information is a public official. Thus there is a need for an intense focus on any additional damage actually or potentially caused.
“32. In this case, I have concluded that there is little evidence of any additional damage caused by the leaks in question. The documents leaked undoubtedly touched on matters of legitimate public interest and Mr Green’s purpose in using the documents was apparently to hold the government to account. The extensive coverage of the issues by the national press, along with comments from Government and Opposition sources is evidence of this.
“33. The information contained in the documents was not secret information or information affecting national security: it did not relate to military, policing or intelligence matters. It did not expose anyone to a risk of injury or death. Nor, in many respects, was it highly confidential. Much of it was known to others outside the civil service, for example, in the security industry or the Labour Party or Parliament. These examples are not an exhaustive list of the types of information that may be damaging for the purposes of the offence of misconduct in public office.
“34. The threshold for criminal proceedings in such circumstances is particularly high, bearing as it does on the freedom of the press to publish information and ideas on matters of public interest. I have reviewed the leaked documents and all the other evidence available as a result of the investigation by the Metropolitan Police Service, in accordance with the Code for Crown Prosecutors. Having done so, I have concluded that, notwithstanding the evidence upon which a jury might conclude that there was a clear breach of duty by Mr Galley and the evidence of damage to the integrity of arrangements of handling restricted and/or confidential information within the Home Office, the overall evidence of damage in this case is not capable of meeting the threshold necessary for the institution of criminal proceedings.”
I think the DPP was being too kind to the police, and simply wrong in saying that after a pattern of leaks was established, “it was inevitable that a police investigation would follow”. Parliament had in the 1989 Act set out the classes of case which, by virtue of their potential damage to the national interest, it considered might justify criminal rather than civil sanction, and the police should stick to it. Interestingly, his description of the classes of case that the common law offence would engage in practice are nearly identical to those of the statutory offence anyway. Well, to give the DPP the benefit of every doubt, possibly a police investigation may be inevitable, but arrests and the execution of search warrants should not be. If I were DPP I would probably have said the same in my decision, because DPPs do not want to be seen to be putting the boot into the police on difficult issues having political ramifications, but I cannot believe the DPP meant it except in that limited sense.
Any defending Counsel would pretty well guarantee to his client that he could secure an acquittal on a common law official secrets prosecution on information not in fact protected under the 1989 Act. The DPP knew that.
Incidentally, the common law offence should not be regarded as “lesser”. Unlike statutory offences, which always specify a maximum penalty, common law offences are punishable on indictment by unlimited fines and unlimited (ie life) imprisonment.
Post scriptum: Some leaks are in the national interest. Some brave senior civil servants leaked information on the preparedness of the nation for war (or lack thereof) to Duncan Sandys and Winston Churchill faced with an incompetent Neville Chamberlain, eventually leading to Chamberlain’s downfall and a very close run thing on whether the country was to be invaded or not. Duncan Sandys MP himself showed particular courage, being interviewed by the Attorney General on the matter and being given an opportunity to defend himself in the House. His house was never trampled upon nor was he arrested.
Brian writes: Chris, I wouldn’t venture to question what you say about the law; and anyway there’s much in your comment that I unreservedly agree with. I would just point to paragraph 30 of the DPP’s statement, which you helpfully quote, as being to my mind the nub of the matter, even if he got cold feet in other parts of the statement. I’m probably influenced by having spent more years than I care to count as a public servant, handling large amounts of official information of which much was highly sensitive, conscious always of my duty of confidentiality as an unelected civil servant or diplomat to my democratically elected political masters. Perhaps as a consequence of this background, I see much more justification than you do for the fear and suspicion that a mole at the very heart of the Home Office (in the Home Secretary’s private office), necessarily having access to vast amounts of highly sensitive information bearing on national security, terrorism, crime, the operations of the Security Service, and other such matters, and eventually known to have been systematically betraying official information on a large scale to a political adversary of the government on the opposition front bench, might well have been committing offences under the Official Secrets Act. No-one could have known at that stage how much or what kinds of information the mole had been passing on in addition to what he was known to have passed to Damian Green. No-one could even have been confident that he had not been leaking much more sensitive material to others besides Damian Green. Such a fear and suspicion in such murky circumstances seem to me to have been entirely reasonable; and not to have taken all reasonable steps to find out whether or not they were well founded would have been quite irresponsible. Against that background I don’t think it’s right to call the questioning of Damian Green or the searches of his offices and home “a fishing expedition”: nor do I think it was improper to conduct them under the umbrella of a suspected common law offence or offences, since the evidence then available didn’t warrant action under the OSA, and to have acted under the OSA would rightly have been regarded as excessive.
I further venture to question your condemnation of the resort to the common law as a crafty and improper way of evading the limitations of the 1989 Official Secrets Act. AFAIK, the 1989 Act didn’t repeal or replace the common law offence of misconduct in a public office in the context of the unauthorised leaking of official information, nor could it have rendered it inoperative. There’s a spectrum, surely, of leaking offences, ranging from giving away top secret nuclear weapon secrets to an enemy power at one end, to sending a copy of a junior minister’s appointments diary to a newspaper in a plain brown envelope at the other. The OSA since 1989 covers only a limited section of that spectrum, but it can’t mean that the rest of it is now open season: nor that the law now gives carte blanche to any old official to pass on bits of official information to the press, or the opposition, or indeed his teenage son, whenever the fancy takes him, so long as it isn’t information protected by the OSA, and without regard to the wishes of ministers and senior officials regarding the release of the information in question, including its timing.
There’s another highly relevant point here. It’s not just the contents of the information that may or may not be intrinsically damaging if published or put into the wrong hands: it’s the fact of an official having claimed the right to act in accordance with his own judgement and impulse, and in so doing having overridden the right of ministers to manage their own official information. This undermines ministers’ trust in their officials, which in turn inhibits frankness in relations between ministers and officials, which in turn degrades the quality of the advice that ministers receive from officials. The consequence is a coarsening of the quality of government which is damaging to every one of us. I strongly believe that we need the common law offence, or something like it, to protect us from the wholesale unauthorised betrayal of official information that would in effect become lawful if the common law offence were to be allowed to fall into abeyance. To decide that such a serious and harmful denial of duty should be dealt with as merely a disciplinary matter for the department concerned to deal with, almost on a par with taking sick leave to go and watch a test match at Lord’s, is seriously to underestimate its gravity and potential harm. The likely difficulty of securing convictions in a climate of admiration of so-called whistle-blowers and the prejudices of a self-interested media is surely neither here nor there. There’s a lot of sympathy for Ronnie Biggs, but no-one’s suggesting that robbing trains should be made legal.
Finally, I of course agree that some leaks, in special circumstances, are in the public interest to such an extent that the public interest in publication of the information clearly outweighs the harm that all unauthorised leaking is bound to do. I’m surprised that you didn’t quote as an example of this the unauthorised and probably illegal sale of the information about MPs’ expenses to the Daily Telegraph. You may remember that the hapless Speaker Martin was initially fulminating about this mother of all leaks, preparing to call in the police to track down the villainous leaker, and generally trying to treat the leak as the scandal rather than the facts about the conduct of MPs which it revealed. Presumably someone took him on one side and explained that if the leaker in this case were to be identified, he would probably be carried shoulder-high through the streets of London to acknowledge the cheers of the populace; and that persuading a jury to convict him of any offence would be like persuading a jury to convict Diana, Princess of Wales, of having committed adultery (still, I seem to recall, technically high treason in the case of the spouse of an heir to the throne). The jury system is a useful safeguard for the occasional, very rare, case where a leak is the only available way of exposing wrong-doing on a significant scale. But that’s not a good reason for discarding a generally sound and necessary law.
CV: We can agree to disagree but three (short) responses to finish on.
First, I agree that governments must govern and departments of state must be able to rely on officials being able to give confidential advice to Ministers. Public administration would suffer severely were that not the case. I have no problem at all with the confidential Ministerial advice exclusion in the Freedom of Information Act 2000. But that does not mean that any leak outside the classes determined by Parliament should comprise the commission of a criminal offence and that anyone in the country should be subject to the issue of search warrants against them. The Home department can carry out their own leak inquiry and sack the miscreant, which they did.
Secondly, the general rule on the prerogative and other natural powers of the Crown is that where a statute makes provision in an area in which those natural powers formerly operated, then it suspends or impliedly repeals the natural powers (AG V De Keyser’s Royal Hotel [1920] AC 508), although there is some theoretical debate about which of those two applies. You are right that this does not generally apply to common law offences, which probably says something about the underlying assumptions behind our legal system. The thinking on offences seems to be to rely on the common sense of the prosecuting authorities, which in the end prevailed. But I put this to you, to which frankly there can be no answer: what is the point of Parliament legislating on the particular area of official secrets, following the Clive Ponting case, if the prosecuting authorities can simply ignore that legislation and go back to their old ways in any case (such as the Galley one) where they find it doesn’t suit their purposes? It is not that the Galley case was peripheral to the 1989 Act and caught by a side wind – it was precisely in point.
The police have in any event learnt their lesson. The official in the Fees Office of the House of Commons who provided MP’s expense claim records to the Daily Telegraph was also committing a common law offence, and one that was apparently done in exchange for payment. The Speaker referred it to the Metropolitan Police. They said that were not going to get involved and the Speaker should treat it as a civil matter.
Thirdly, have the Home office found that their powers of obtaining information in a leak inquiry are too limited in cases of relatively low level but systematic leaking so that they would like to tap into the powers of the police under the Police and Criminal Evidence Act 1984 whenever there has been a leak? If they have, do it properly and put a Bill before Parliament to get more powers or to amend the 1989 Act. I just cannot buy the dangerous argument that it was OK for the Home department and the police to do what they did because Galley might have been leaking or about to leak protected information. If the Home department were not even able to show any “reasonable suspicion” within the meaning of PACE (which is all that is required and not a difficult burden to discharge) concerning an OSA offence then back off. Do we believe in the rule of law or not?
Brian writes: Thank you. My only comments on this, which don’t I think amount to disagreements, are that (i) I’m sure that the home office, at some stage in the Damian Green affair, supported its decision to call in the police by explaining that they lacked the resources to carry out a proper investigation into the two years of systematic leaks themselves — which I must say is a relief to me: the last thing we want is a home office in-house secret detective agency, accountable presumably to no-one!, so I hope they won’t ask parliament for investigatory powers and resources; and (ii) I would have expected Parliament — meaning in practice the government, I suppose — to make its intentions explicitly clear if by restricting the scope of the Official Secrets Act it also intended to legalise all unauthorised leaks of official information not covered by that Act. Since it didn’t do so, I would have thought that the implication was that the position on all such information remained unchanged, i.e. covered by existing common law. Oh, and (iii): I don’t think we can extrapolate any general conclusions from the refusal of the police to agree to investigate and possibly to prosecute the leaker of the MPs’ expenses information to the Daily Telegraph, even for money. They must have known that to do so would make them a laughing-stock, given the state of public opinion and the almost universal view that if ever there was a justified blowing of a whistle, this had to be it. It would surely be unsafe to deduce from this that the police will refuse to take an interest in some future case of a house of commons official selling information of a different kind to the media where there’s no obvious public interest defence. But I promise not to interpret your silence in response to these comments as implying your agreement!
CV: Yes, we don’t disagree on too much. On “the last thing we want is a home office in-house secret detective agency”, we already have one – MI5. It reports to the Home Secretary and although I have no personal knowledge (if I did I imagine I could not say anything), I have always assumed that it carries out civil service leak investigations and does things like positive vetting. With MI6 (SIS) and GCHQ, which report to the Foreign Secretary, and the Defence Intelligence Staff (I think they are MoD), it forms part of the UK Intelligence Services.
I don’t have any problem with MI5 existing. It is politically accountable even though not much is said about it, probably more so than in many other countries. That’s fine by me.
CV: Afterthoughts: There are legal issues arising about the lawfulness of arrests and searches, particularly in Parliament, but at the end of the day it is a matter of judgement about whether what the police did is right in its broader sense rather than its legal sense.
IThere are two further points to be acknowledged and which probably need to be made here. The first, which you raised, and with which I agree, is that strictly speaking the common law offence of misconduct in public office still exists so on a technical level the police did not act unlawfully with respect to Mr Galley in respect of the arrest on that ground (as to Mr Green see further below). I think they acted wrongly in the broader sense for the reasons I have given and will not repeat here, but not unlawfully in the sense that they could be sued for it. (As an aside, I think the House or Lords would revisit the rule that statutory offences do not impliedly suspend or “shadow out” common law ones on the same matter were it ever to get there in a stark enough case such as that of Galley, but the Galley case would not get to the House of Lords as in the unlikely event of a prosecutor proceeding with such a “shadow” charge there would never be a conviction by a jury to be appealed.)
The second is the conspiracy charge against Mr Green. Conspiracy is another common law offence which raises my hackles. One feature of conspiracy is that it can be an offence to agree with someone to do something which is not an offence. Conspiracy to do a civil wrong, such as to break a contract, including a contract of employment, is also an offence. It was precisely that offence (from the, in my view, arbitrary and pre-democratic common law bag of tricks) which was employed against the early trade union movement and which sent the Tolpuddle Martyrs away to lands afar. If you are keen on common law offences you could therefore justify the arrest of Damian Green on the basis that OK, he had not been conspiring to commit an OSA offence, but he had been conspiring (so the Home office said) to commit another conspiracy recognised by the law, that concerning the “shadow” offence and the civil wrong of Mr Galley breaching the terms of his appointment.
I answer that in two ways. First, on the factual ground that there was no evidence to support the Home office’s suggestion to the police that rather than Mr Green being just a regular and happy recipient of leaked information (which would not comprise a conspiracy) he had been “grooming” and “positioning” Mr Galley to leak information (which might). Mr Galley had been arrested and questioned some time in advance of Mr Green’s arrest and he denied such “grooming”. This suggestion appears just to have been an invention born of the Home Office’s
frustration about the leaks. The investigation of Mr Green’s computers and papers revealed no evidence of such grooming.
Secondly, I object to the use of the conspiracy offence in this way on the policy ground I have mentioned above, and I deprecate it in the Galley/Green case in particular because it appears to have been a Home Office invention to persuade the police to take the case on. But I concede that those taking your point of view have a better argument with the conspiracy charge (or non-charge) than the basic “misconduct in public office” non-charge. [CV]
_________________________________
Brian
In recent days the Department for International Development and the Conservative Party have each published major policy statements on international development and aid, the former in an impressive new White Paper (pdf file) and the latter in an almost equally impressive policy paper, OneWorld Conservatism (pdf file). It’s heartening that on the overwhelmingly pressing problem of world poverty and how to alleviate it, the two main parties are so closely agreed. No sensible observer would quarrel with anything in the Conservative paper’s introduction to its list of detailed recommendations:
• If elected, a new Conservative Government will be fully committed to achieving, by 2013, the UN target of spending 0.7 per cent of national income as aid
• We believe that the Department for International Development (DFID) should be here to stay. With a Conservative Government, DFID will continue to report to the Secretary of State for International Development, who will have a seat in the Cabinet. British aid will remain untied from commercial interests, and we will maintain DFID’s focus on poverty reduction
• We support and will continue to work towards the Millennium Development Goals. [Original emphases]
Not all of this will have the traditional Tory Party members and supporters out in the rural shires dancing in the fields, and much credit is due to both David Cameron and his shadow development secretary, Andrew Mitchell, for their principled commitment to bipartisanship – and for acknowledging the merits of at least one area of the Labour government’s record.
There is however one proposal in the Conservative paper which is, and should be, highly controversial:
We will establish a new MyAid fund, worth £40 million in its first year. Every taxpayer will be able to log on to the MyAid website and view details of ten ongoing DFID-funded aid programmes, and vote for which one they think should receive the extra money. The options will include programmes run directly by DFID, as well as those run by respected NGOs. The Fund will then be distributed between the ten programmes in proportion to how many votes they receive. For example, if 25 per cent of people vote for the DFID programme in Malawi, that programme would receive 25 per cent of the Fund – £10 million. Everyone who votes will be kept up to date with regular email updates about the progress of ‘their’ project.
We will consult carefully on the technical aspects of the voting system. The projects will be chosen so as to illustrate the range of activities in which DFID and NGOs are involved and the variety of countries they work in. This will increase public understanding of, interest in and support for Britain’s aid programme — and create a clear incentive for DFID to demonstrate and improve the quality and impact of its work. If this idea proves successful, we will scale it up in future years. One option would be to set the level of the fund so that it equals the total amount raised by Comic Relief.
Interesting, ingenious, carefully worked out, even cautious — but in the end misguided. We elect our MPs and governments to govern according to their own best judgements, not according to ours. They have access to expert advice, both from officials and others, politically committed and professionally neutral, and to a wealth of information which it would take any individual private citizen a lifetime to track down and absorb. We are fully entitled to monitor what they do, to try to influence them, to hold them to account, and ultimately to kick them out at election time and substitute an alternative slate of rascals. But we should not attempt to micro-manage them from day to day.
Current disillusionment with politicians — in effect all politicians, of whatever party — has been sharpened by the scandal over MPs’ expenses and by the collapse of our banking and economic systems, unfairly but inevitably blamed on the supposed failures of the incumbent government’s policies. This has led to an outbreak of proposals for substituting “the will of the people” for the judgement of politicians in day-to-day decision-making.
Some are demanding a recall system, under which an arbitrary percentage of the constituents of an MP whose conduct has displeased them would have the right to ‘recall’ the MP and force a by-election, on the pattern of some US states. As I wrote in an earlier post about current zany suggestions for constitutional reform, this would provide “a field-day for the glassy-eyed environmentalists, anti-abortionists, vegans, English flag-waggers, pacifists, single fathers, flat-earthers and other fanatics.” Others want referendums on a wide range of policy issues — most notably the Lisbon treaty, on which the refusal to hold a referendum has caused a deafening amount of noise, not least from a deeply Europhobic Tory party. There’s also currently a campaign for a Citizens’ Convention:
A Citizens’ Convention would a deliberative assembly consisting of at least 100 ordinary men and women selected from the electoral roll, just as juries are selected in the courts. The selection would be ‘semi-random’ as attempts would be made to ensure that the Convention represents all sections of society and all areas of the UK.
The role of the Citizens’ Convention would be to make a series of recommendations to Parliament for improving UK politics. In particular, we would want it to look at:
* The payments and expenses of MPs and members of the House of Lords.
* The electoral system or systems in the UK including the composition of the House of Lords.
* Greater powers for citizens to hold MPs and members of the House of Lords to account including the circumstances and method by which citizens can petition for the recall MPs and members of the House of Lords.
* The conduct of business in Parliament including the powers of the House of Commons; and of individual members of Parliament.
* The funding of political parties including the issue of caps on donations.It could explore other areas of reform if it decided to.
(I love that parting shot.)
The campaign envisages that the Convention would be confined to making “recommendations” to parliament on all these issues (including a provision for recalling MPs), rather than having actual legislative or executive powers. But once the 100 lucky conventioneers got the bit between their teeth, who knows what powers they might demand?
The proposition that a largely random collection of ordinary citizens — chosen mainly by lot in the case of the convention, or by counting heads in the case of the MP’s recall proposal — are better placed to exercise informed and mature judgements on complex political and constitutional issues than elected ministers backed by experienced government departments, or MPs with their extensive parliamentary and other resources and in many cases their long experience and expertise, is fundamentally fatuous. It flies in the face of the Burkean doctrine that MPs should be representatives, not delegates. It ignores the reality that the great majority of sensible (and other) people would be appalled by the idea of being constantly required to pronounce on the complex and generally tedious controversies of the day, wanting nothing more than to be allowed to get on with their lives while others better qualified to make such decisions are allowed to do so. It actually encourages the pernicious populism of governments which seek to steer by reference to opinion polls, focus groups and phone-in programmes on radio and television, instead of making their own evidence- and advice-based decisions. Above all it effectively prohibits ministers from making necessary but unpopular decisions and from leading and educating public opinion instead of meekly following it.
Opposition to all suggestions for ‘participatory democracy’ infallibly invites the jeer about “the gentleman in Whitehall knows best”, generally assumed to be a self-evidently ludicrous proposition. But sometimes he does, and advises his minister accordingly. Whether the minister accepts or rejects that advice, he must answer for his decisions to parliament, and every few years to the electorate. By their fruits we shall know them. Why should the man on the Clapham omnibus be expected to possess more experience, knowledge and judgement about some multi-dimensional political issue than those whom we pay and elect to know about such things? The chances are that he has far better things to do when he gets off that bus in Clapham.
For better or worse, we have a terrible example of the actual consequences of government by public opinion and referendum. California, whose fiscal and other policies are virtually strait-jacketed by the misguided results of ‘propositions’ on which its electorate votes at election time, is calamitously broke as a direct result:
California has a budget deficit of $26.3bn (€18.85bn, £16.18bn) on revenues of just $113bn…. It has a balanced budget rule that forces it to eliminate the deficit but no agreement as to how. It has already in effect decided to selectively default — paying vendors with IOUs rather than cash….
The worst case scenario would be a default by the state which has $59bn in general debt, $8bn in bonds linked to securitised revenues such as tolls and $2bn commercial paper… … there are institutional reasons why the budget gap is proving difficult to close. Aside from the absurdity of having to balance the budget in the midst of the worst recession in half a century, California’s fiscal flexibility is diminished by other statutory restrictions, mostly imposed by state referendums known as propositions. These restrictions make it exceptionally difficult for the state to raise property taxes or cut basic education spending. About 25 per cent of revenue is, meanwhile, ringfenced. …
['California state ills could grow into a federal headache', Krishna Guha in Washington, Financial Times, July 13 2009: emphasis added]
I rest my case.
Brian
Perhaps at last something buried deep in the so-called middle east peace process is beginning to stir. First the doggedly right-wing and famously obstinate Israeli prime minister, Benjamin Netanyahu, for the first time accepts the principle of a two-state solution — Israel and Palestine existing side by side in mutual recognition. Then he announces his willingness to meet the chairman of the Palestinian Authority, Mahmoud Abbas, immediately “in order to advance the political process” — and he makes this announcement “at a weekly cabinet meeting”, showing that it represents government policy and not just a passing personal whim. And the Palestinian response? –
Saeb Erekat, a senior Palestinian negotiator, reacted soberly to Mr Netanyahu’s comments, saying the Palestinians wanted to see practical commitments, most importantly a freeze of all settlement construction in West Bank Jewish settlements. Mr Erekat said the Palestinian Authority would reject any deal between Israel and the US for even a limited amount of building in those settlements, currently home to about 250,000 Jewish Israelis. “There are no middle-ground solutions for the settlement issue: either settlement activity stops or it doesn’t stop,” Mr Erekat told Voice of Palestine radio. This was the essence of a letter Mr Abbas sent to Barack Obama, the US president, at the weekend, Mr Erekat said. [Dina Kraft in Tel Aviv, Financial Times, July 13 2009].
It’s surely significant that the implied bottom line for the Palestinians’ senior negotiator is a freeze of Israeli settlements on the West Bank, precisely President Obama’s demand as put to the Israelis, and not their complete dismantlement, even if dismantlement may remain the Palestinians’ ultimate objective. It looks however as if that could be negotiable: negotiated land swaps have long been envisaged as an element in any eventual settlement.
It’s true that a freeze of the Israeli settlements has been a feature of some earlier provisional agreements between Israel and Palestine, and that other reports appear to signal a more demanding Palestinian position. But that was last month….
The Financial Times report quoted above occupies half a column down the side of page 5 of Monday’s paper. Might it not be more significant than that obscure location seems to imply?
Obama really seems to be shaking up all the kaleidoscopes. What a pity that he’s so firmly committed to the pointless slaughter in Afghanistan — politically realistic, perhaps, but surely against his own better judgement.
Update (20 July 09): A report from Jerusalem in yesterday’s New York Times (hat-tip: David Tothill, as ever) describes extensive scepticism about the genuineness of Netanyahu’s Damascene conversion to a two-state solution, and serious doubts about the negotiability of the conditions he has laid down for Israeli acceptance of a Palestinian state. Given Netanyahu’s record, such scepticism is understandable and may well prove to be justified. But it’s equally possible that he is setting out a maximalist initial negotiating position that includes some demands and conditions which he could concede in the course of future negotiations in return for corresponding concessions by the Palestinian side. Such tactics are far from unknown in the run-up to a difficult negotiation. More daunting, perhaps, is the difficulty described in the NYT report over how far the Fatah President of the Palestinian National Authority, Mahmoud Abbas, can realistically negotiate in the name of all Palestinians when he doesn’t control Gaza and when his authority even in the West Bank is to some extent in question:
The Israeli leaders note that Mr. Abbas does not control Gaza, which was taken over by his Hamas rivals two years ago. They add that it is doubtful how much he controls what they call Judea and Samaria, the biblical name for the West Bank, and say that if the Israeli Army were to leave the area it could turn into another “Hamastan.”
The hope must be that the regional Arab and other Muslim states may eventually succeed in their current efforts to put effective pressure on Hamas and Fatah to get their acts together in a joint authority sufficiently united to be able to serve as an interlocuteur valable in negotiations with Israel, with President Obama, Russia, the EU and the UN (the middle east quartet) acting as arbitrators and providers of good offices. But it will all take precious time, and Obama needs to show tangible progress during his first term if he is going to be able to carry American public opinion with him in putting the necessary pressure on Netanyahu to show more flexibility than has been his hallmark hitherto.
Brian
Several propositions are acquiring the status of well-known truths from frequent repetition, despite all being false. For example, –
Proposition 1: The News of the World phone-tapping scandal will run and run, eclipsing even MPs’ expenses (predicted by an enthusiastic Andrew Neil, a former Murdoch editor). I very much doubt it. The principle that ‘dog don’t eat dog’ (i.e. newspapers and other media organs don’t attack each other) will reassert itself, not least because there must be many other newspapers besides the grubby ones belonging to the Dirty Digger which have resorted to dirty tricks in search of a squalid scoop, including hiring private ‘investigators’ to tap mobile phones and bribing the authorities for illicit information. It looks as if some policemen may have been accepting money from the press in exchange for confidential information, which if true may tend to cool the ardour of the cops for a rigorous police investigation — although at present this is pure speculation. Some MPs may well try to keep up the pressure on the tabloids and try to get some of them prosecuted, but without intensive media support they probably won’t get very far. Nor will either of the main parties’ leaders want to encourage their flocks to do anything likely to irritate Rupert Murdoch, especially with a general election coming up.
The pity is that interest is focusing on the tapping of mobile phones, simply because that is unarguably illegal, whereas what deserves much broader condemnation is the cruelty and unscrupulousness of the Murdoch press (and several others) in hounding public figures, parading their prurient obsession with ‘exposures’ of aspects of their private lives which should be of no concern whatever either to the media or to the rest of us. They don’t hesitate to take advantage of the natural assumption by many tabloid readers, bloggers and contributors to phone-in programmes that it must be “in the public interest” to reveal anything that some members of the public are interested in. It’s in the public interest, but not in the interests of the gutter press, that public figures, like the rest of us, should enjoy a degree of privacy in their and our private lives. But there’s good money to be made and circulation figures to be inflated by blatant and unprincipled invasion of other people’s privacy, wrecking lives, breaking up families, and ruining reputations in the process. Tapping mobile phones is only the tip of a poisonous iceberg. But who dares to denounce the Digger?
Proposition 2: Damian McBride and Derek Draper were responsible for the public smearing of prominent Tory politicians and in some cases their wives. No, actually they weren’t. No public smearing was involved in exchanging those private e-mails, however puerile and irresponsible their content. They never acted on the proposals they discussed between themselves and there’s not a shred of evidence that they ever seriously intended to (nor would it be relevant even if that had been their firm intention). It was our old chum Guido Fawkes, alias Paul Staines, who passed the smears to a national newspaper, complete with the names of those smeared, on the clear understanding that they would be published, names and all, regardless of the pain and damage they would cause to the victims, at least some of whom were innocent of the allegations against them. Yet it’s by now “common knowledge” that McBride and Draper were the guilty parties. It does seem, of course, that McBride at least had been an enthusiastic practitioner of the political dark arts for a long time, so perhaps the blame heaped on him for the one vile offence that he had not committed was a kind of rough justice. It’s ironical, though, that he was not guilty of the one thing alleged against him which caused his downfall — if indeed it was a downfall; it’s rumoured that despite his ejection from No. 10, he’s still busy e-mailing away in the cause of his distinguished master. True? I have no idea.
Proposition 3: The police were at fault in arresting and questioning the Tory MP Damian Green in his parliamentary office over the leaks he had been receiving from a mole in the Home Office, and former Speaker, Michael Martin, was at fault in allowing this to happen. Again, not so. There was clear prima facie evidence of a probable offence having been committed, either under common law or possibly under criminal statute; the civil service head of the department concerned was unquestionably right to ask the police to investigate it; and the police were equally obviously right to agree to do so. MPs have no immunity from police investigation of possible offences, whether in the Palace of Westminster or anywhere else. If the Speaker had sought to prevent the police from arresting and questioning Damian Green and searching his office, he would have been open to the charge of perverting the course of justice. The police had not obtained an ordinary search warrant, but they had got something even better than that: formal permission from the Serjeant-at-Arms, the senior parliamentary official responsible for security, to go ahead. The fact that in the end the Director of Public Prosecutions decided that Mr Green should not be charged (because of the likely difficulty of getting a conviction) didn’t and doesn’t mean that no offence had been committed, as the DPP himself made publicly clear at the time. The DPP also declared that a police investigation of the known facts had been inevitable.
It’s rather sad that Speaker Martin’s perfectly correct action in not intervening to stop the police carrying out their investigations in an MP’s parliamentary office turned out to be one of the most serious indictments in the charge sheet that led to his downfall. On that indictment at least he was Not Guilty. But how many people remember that now? How many will remember it in a year’s time, or in a decade from now? What he did was undoubtedly not only correct, but also “in the public interest”. The trouble was that a lot of MPs thought it wasn’t in their interests to let some future Speaker think he could get away with exposing them to the possibility of being questioned by the police within the precincts of parliament. By such means is the concept of parliamentary privilege extended into areas where it doesn’t belong.
Proposition 4: Sarah Brown, the prime minister’s wife, is Britain’s First Lady. Tell that to the Queen! Nice and estimable person though Mrs Brown seems to be — she actually Twitters, for example — the First Lady she’s not. But pontificating press reviewers on television, among a good many others, don’t seem to know that.
Proposition 5: The NATO bombing of Yugoslavia in 1999 succeeded in its purpose of stopping the ethnic cleansing of the Kosovo Albanians by the Serbs and stopped the outflow of Kosovo Albanian refugees from Kosovo into neighbouring countries. Actually the NATO attack on Yugoslavia accelerated and intensified the ethnic cleansing, and the flow of Kosovo refugees into neighbouring countries began after the start of the NATO bombing. But don’t get me started on that again! Just have a look at some of the evidence here.
Proposition 6: The last Tsar of all the Russias was a grandson of Queen Victoria. Well, it’s true that he looked a lot like the British Duke of Kent (don’t ask me which one). But, as his Wikipedia entry confirms,
Nicholas was the son of Emperor Alexander III and Empress Maria Feodorovna of Russia, the latter of whom was born ‘Princess Dagmar of Denmark’. His paternal grandparents were Emperor Alexander II and Empress Maria Alexandrovna of Russia, the latter of whom was born ‘Princess Marie of Hesse’. His maternal grandparents were King Christian IX of Denmark and Princess Louise of Hesse-Kassel.
Sorry about that.
There are a whole lot more widely believed myths about the (British) royal family, such as that the Queen is German and that Prince Philip, Duke of Edinburgh, had to be evacuated from Greece as a small child by a Royal Navy ship in both a hurry and a cot made from an orange box. Oh, sorry: that last bit is true. (And did you know that he’s as much Danish as Greek by origin?)
Brian
Bloggers who entrust their political views and comments to the blogosphere must expect to be misrepresented, misquoted, misunderstood by-mistake-on-purpose, quoted out of context and otherwise have their case distorted by other bloggers of a different political persuasion. So there’s no point in complaining when it happens. But there’s currently an interesting example of distortion by omission and misquotation, in a blog by an obscure Conservative Councillor who is also ‘commercial director’ at the Conservative Party’s campaign HQ. You can read his blog post here.
You will see that the Councillor purports to reproduce, and attributes to me by name, my own blog post in Labour List of yesterday (also available on my own blog) in which I joined the growing chorus of criticism of the Labour leadership’s “Tory cuts, Labour invests” line as being fundamentally misleading and defying belief, thus damaging the government and the party — but in which I also set out a suggested four-point alternative Labour line that would highlight the government’s effective actions and policies for dealing with the recession while exposing the dangers and follies of the Conservative party’s corresponding economic and fiscal policies. Predictably, the Tory Councillor’s version of this on his own blog reproduces in full my criticisms of the current Labour leadership line but completely omits my positive and constructive suggestions for an alternative pro-Labour line, including my condemnation of Tory policy for dealing with the recession. Thus the basic thrust of my own post is effectively reversed by the Tory blogger. You’d need to have eagle eyes to spot the three faint dots which alone indicate the very substantial omission, and a rare political insight to guess what it contained. Not only is the central core of what I wrote slyly omitted: our Tory Councillor has also unobtrusively re-named it ‘A Labour Member for 50 Years Writes About Labour’s “Simple Minded Dishonesty” Lies…’, although the words ‘lie’ and ‘lies’ don’t appear anywhere in my post (except as part of the words ‘families‘ and ‘earlier’). That’s misquotation with a vengeance, especially as the mangled version of the text purports to be by me — so it would be natural to assume that the title is by me as well.
There are several interesting things about our Tory Councillor and his blog, including its title (“CllrSSD’s Blog“) and the fact that nowhere in it does the Councillor’s name appear — even in the section headed “About Me and My Blog“.
There are various clues here and there, including the initials SSD; even a contact e-mail address (scott@northwoodconservatives.org), but no name. Rather odd, you might think, for an elected Councillor. In fact our man is one Scott Seaman-Digby, who engagingly if slightly mysteriously describes himself (and reveals his name) in his potted autobiography on his Twitter page as “Local Councillor, CCHQ staffer, generally nice guy, having fun online and keeping in touch with family, friends and resident [sic]“. CCHQ evidently stands for Conservative Campaign Headquarters. Elsewhere we learn that “Scott was elected Chairman of the London Borough of Hillingdon Conservative group in 1999 and in the same year he joined the Parliamentary Candidates list as an approved national candidate.” He’ll surely make a grand MP.
I have submitted the following comment on Mr Seaman-Digby’s blog post — the one that’s represented as being by me:
Selective extracts from my blog post, designed to expose the dangerous folly of Conservative policy for dealing with the recession, have been reproduced here without my prior agreement. I note that the section of what I wrote setting out the merits of the Labour party’s actions and policies, compared with the glaring defects in Tory policy, has been completely omitted. This kind of distortion by omission is very poor practice, but comes as no surprise.
Brian Barder
http://www.barder.com/ephems
This comment is presumably still awaiting the Councillor’s approval; at any rate, it hasn’t yet appeared below his, or my, post on his blog. But since by his own account he’s a “generally nice guy”, I expect he’ll approve my comment in due course and put it on his blog. And if you find that later today (Tuesday 7 July) it still isn’t there, you can always send him an e-mail asking what’s happened to it: scott@northwoodconservatives.org should find him. He quotes that e-mail address himself on his blog, and since he has no qualms about selectively reproducing my blog post (with the heart of it cut out), he can hardly object to my reproducing just an e-mail address from his. [Update: My comment has now appeared on Cllr. Seaman-Digby's blog, together with his own conciliatory reply and (soon, anyway) my further response: please see http://www.barder.com/ephems/1846#comment-87163 immediately below.]
The indefatigable Guido Fawkes had earlier spotted my Labour List post and commented on it in reasonably balanced if pungent terms, including brief quotations from it to illustrate both the criticisms and the constructive suggestions. Perhaps that’s where Mr Seaman-Digby came across it in the first place, unless he’s a loyal reader of Labour List and saw the original there.
But then, as I said before, bloggers have to expect what they write to be distorted by selective (mis)quotation, quotation out of context, and other tricks of the trade of the practitioners of the dark political arts. So I’m not complaining — just recording an amusing and instructive example. No doubt there’ll be many more before the mainstream media and the Tory bloggers get bored with (or ‘of’?) the subject.
PS: For an example of another impeccably fair and balanced comment on my post in Labour List, written by (of all things) a Daily Telegraph blogger, James Kirkup, look at this (including “particularly telling is his (accurate) observations on how some fancy footwork by the Tories turned Andrew Lansley’s original “10 per cent” mis-step into a tactical victory.”)
Brian
