The following letter from a senior official at the National Offender Management Service, stating the government’s policy on existing IPP prisoners following the ‘reform’ (or replacement, or abolition) of IPPs under the LASPO Bill currently going through parliament, is important, cautious but generally encouraging.  [Hat-tip: Mr Robinson of Emmersons Solicitors and the Facebook IPP Campaign website]:

Dear Mr Robinson

Thank you for your e-mail of 22 January about the indeterminate sentence of Imprisonment for Public Protection (IPP).

You ask what is happening to speed up the release of post tariff IPP prisoners and what will be done to ensure post tariff IPP prisoners are treated fairly when the IPP sentence is reformed by the Legal Aid, Sentencing and Punishment of Offenders Bill (LASPO) Bill. On 26 October the Government tabled amendments to the LASPO Bill which will reform sentencing for dangerous offenders. We will replace IPPs with a tough new regime which will see more dangerous criminals given life sentences, and others spending long periods in prison and being supervised for long periods after their release. Prisoners currently serving an IPP sentence will not be released unless the Parole Board authorises it.

However, there is concern that those currently serving IPP sentences should be supported in progressing through their sentence and reducing their risk. We will be using our best efforts to improve the progression of these prisoners through sentence, including improvements to assessment, sentence planning and delivery, and parole review processes. We continue to monitor outcomes to ensure further improvements in this area.

In the Sentencing and Rehabilitation Green Paper last year we raised the issue of whether the Parole Board’s test for release in these cases was the right one, and this is a question that we will explore further. Our legislative proposals also give the Secretary of State a power to change the release test used by the Parole Board for IPP prisoners and prisoners serving the new extended sentence. We plan to consult on whether the current release test for IPPs and the new Extended Determinate Sentence ensures effective public protection while allowing offenders to demonstrate that they can be safely managed in the community.

Yours sincerely,
Polly Churcher
ISP Policy Lead
Public Protection Operational Policy Team
NOMS Offender Management & Public Protection Group
Ground Floor, Grenadier House 99-105 Horseferry Road London SW1P 2DD

For multiple statements and examples of the giant miscarriage of justice represented by IPPs, please do a search for ‘IPPs’ on this blog, including for the most recent (here).  Thanks to an enlightened Justice Secretary, it looks at last as if IPPs are on the way out, whatever misgivings we might have about some of the measures proposed to replace them.  It’s good to know from Ms Churcher’s letter that if and when IPPs are replaced, the fate of those serving IPPs when LASPO bec omes law won’t be forgotten.  It would be a gross denial of justice if any significant number of IPPs were to be left languishing in prison well beyond their tariffs, their release delayed by mainly bureaucratic factors.  Polly, we look to you to make sure that not only justice is done to these people, but also that justice is done briskly and humanely.

Brian

1. Scottish independence, just as much as devo max, will (or would) require the collaboration of the Westminster government, with whom its terms and practical application would have to be negotiated. It’s a myth that Scotland could simply take independence on its own terms without the government of the rest of the UK (“rUK”) having a major say in, for example, the division of assets and liabilities as between the two countries.

2. It is very much in the interests of all concerned, independentistas and unionists alike, that when the Scots come to vote in the autumn of 2014, they have a reasonably detailed knowledge of the implications of both independence and devo max.  Work should begin without delay on negotiations between Holyrood and Westminster, ideally on an all-party basis, to find as much common ground as possible about what either independence or devo max would entail. Any agreement on the implications of a vote for either would necessarily be provisional, with final decisions on all the issues deferred until the result of the referendum is known. If broad provisional agreement between all concerned could not be reached by the time of the referendum, both sides would need to publish an account of the negotiations, so that voters in the referendum would have a reasonably clear idea of the positions of the two governments and other parties, and the nature of the issues that would need to be resolved if the result turned out to be a majority for either independence or devo max.

3. The referendum is most unlikely to result in a majority vote for the status quo. As between independence and devo max, those who wish to avert the disintegration of the United Kingdom have a strong interest in encouraging a vote for devo max. The best hope of securing that result lies in a decision by the UK Labour Party, including the Scottish Labour Party, to give full support to devo max and to collaborate with the SNP and other Scottish supporters of devo max in working out which additional powers a Labour government at Westminster would agree to devolve to Scotland in the event of the referendum confirming majority support for devo max. If the Conservative and Lib Dem parties could also be persuaded to support devo max, so much the better. But at least Labour should do so, whatever the other parties decide. Labour, after all, is the father of devolution and should recognise its merits – or at worst accept that devo max would be the least damaging outcome of the referendum.

4. Both independence and devo max would have huge implications for rUK (the rest of the UK). The unionist parties should begin now to develop their policies for dealing with either a UK without Scotland, or a UK in which Scotland would be to all intents and purposes fully internally self-governing. In the latter case, full self-government for Scotland would inevitably prompt demands for the same status for England (which would require the creation of a separate parliament and government for England) and for Wales and Northern Ireland. This would take several years to achieve. The result would be the creation of a federation of the four UK nations, with all the institutional and legal safeguards required by a federal system. Such a radical change in the relationships between the four nations, and between the nations and the federal centre at Westminster, could well inaugurate a revival of the politics and constitution of Britain, to the benefit of everyone. Scottish independence, on the other hand, could well spell disaster for rUK. It is questionable whether the three remaining UK nations could form a viable federation, even if, as seems unlikely, the secession of Scotland were to prompt a desire for one.

5. There is not the slightest reason to suppose that devo max for Scotland would signal the beginning of the end for the UK. Scottish devo max would not be likely to turn out to be a stepping stone to full independence: quite the reverse. The full internal self-government enjoyed by, for example, California or New South Wales is not regarded in either state as a preliminary to independence from the rest of the United States or Australia. Indeed, the opposite is the case. The completion of the devolution project in Scotland could well pave the way to the completion of devolution in rUK and the establishment of a durable, democratic federal system, as suggested in (4) above.

6. Devo max for Scotland would not mean that Scotland’s MPs at Westminster would only be able to vote on foreign affairs issues. The Westminster parliament, already a quasi-federal organ, would have roughly the same powers in respect of Scotland as the federal government of the United States has in relation to California or Massachusetts. No one regards these powers and responsibilities as trivial.

[The writer and commentator Gerry Hassan has posted an interesting and thought-provoking article about the Scottish Question in the Open Democracy website forum, provocatively entitled 'Historic day for the UK:  Salmond consults Scotland but can't civilise Paxman'. This has prompted a number of equally interesting responses, some of which however reflect surprising misconceptions. This post first appeared, with some minor editorial changes, as my own comment on Mr Hassan's article and on some of the responses to it.]

Update, 17 January 2012:  For a stark contrast with the sloppy journalism quoted above, you should read an excellent article in today’s Scotsman by Professor Gavin McCrone, a distinguished Scottish former public servant, academic and economist (full disclosure: also one of my oldest friends). After describing some of the complex issues that will have to be negotiated either for Scotland to become independent or for it to achieve devo max, McCrone concludes that –

Sorting out all of these issues and ensuring that they are fully understood by those who will vote is going to take time, so that whatever Mr Cameron says, I do not expect the referendum to take place any earlier than October 2014, the date chosen by Alex Salmond. What worries me most is that as the debate continues, it could become not only increasingly intense but acrimonious. I give politicians the credit on both sides of not wanting that to happen, but they might find it difficult to control. There are plenty of people both in England and in Scotland who might make it so.

All those of us who comment on Scotland’s future, from north or south of the border, in the conventional media or in the blogosphere, have a duty to heed Professor McCrone’s warning. Fortunately, it doesn’t have to be a zero-sum game: if all concerned play fair, both Scotland and the rest of the UK can benefit equally from whatever constitutional changes emerge from the referendum process. Let’s all go easy on the acrimony, keep the temperature down, and treat each other like friends and neighbours, not as rivals or enemies.

Brian

Nicolas and Jason, your entry came out on top because of the almost unique way in which it confused England, the United Kingdom, and what would be left of the United Kingdom if Scotland were to secede from it.  I am confident that in the coming months many more commentators south of the border will try to live up to the standard you have set.

Here is your winning entry:

At stake is much more than England’s alleged appropriation of North Sea oil revenues. If Scotland went its own way more than three centuries after the 1707 Act of Union, it could raise questions over England’s status in Europe, its claims at the United Nations to be one of the great powers and its relationship with other members of the United Kingdom.

Bravo!

Update, 17 January 2012:  For a stark contrast with the sloppy journalism quoted above, you should read an excellent article in today’s Scotsman by Professor Gavin McCrone, a distinguished Scottish former public servant, academic and economist (full disclosure: also one of my oldest friends). After describing some of the complex issues that will have to be negotiated either for Scotland to become independent or for it to achieve devo max, McCrone concludes that –

Sorting out all of these issues and ensuring that they are fully understood by those who will vote is going to take time, so that whatever Mr Cameron says, I do not expect the referendum to take place any earlier than October 2014, the date chosen by Alex Salmond. What worries me most is that as the debate continues, it could become not only increasingly intense but acrimonious. I give politicians the credit on both sides of not wanting that to happen, but they might find it difficult to control. There are plenty of people both in England and in Scotland who might make it so.

All those of us who comment on Scotland’s future, from north or south of the border, in the conventional media or on the blogosphere, have a duty to heed Professor McCrone’s warning. Fortunately, it’s not a zero-sum game: if all concerned play fair, both Scotland and the rest of the UK can benefit equally from whatever constitutional changes emerge from the referendum process. Let’s all go easy on the acrimony, keep the temperature down, and treat each other like friends and neighbours, not as rivals or enemies.

Brian

*   *   *   *   *

According to a report in the Daily Telegraph, a group of right-wing Tory grandees are planning to derail the cuts in legal aid provision proposed by the Justice Minister, Ken Clarke, in his Legal Aid, Sentencing And Punishment of Offenders Bill currently going through the House of Lords.  If the Lords vote to delete the cuts, there is likely to be a battle royal between the Lords and Commons when the Bill returns to the Commons, where the government will presumably seek to restore them. Fortunately or otherwise, the same Bill provides for the abolition (euphemistically described as the ‘replacement’) of the scandalous system of Indeterminate Sentences for Public Protection, or IPPs, under which nearly 7,000 men and women are crowding our jails in preventive detention, despite having in most cases completed their punishment for the offences they have committed. Those who care about justice must hope that abolition of IPPs will not fall victim to a battle between the two Houses over legal aid, which has nothing to do with indeterminate sentences: these are an ugly blot on our justice system and Mr Clarke, the coalition’s house liberal, is absolutely right to want to get rid of them.

*   *   *   *   *

It may be some time before we know why the Italian cruise ship Costa Concordia hit the rocks in one of the biggest ever disasters in the world of cruising. Nor do we know yet why the evacuation of the ship seems to have been so chaotic, although some survivors are already being quoted as claiming that there had been no boat drill since the start of the cruise several hours earlier. Costa executives, currently no doubt unusually busy, can be forgiven for not yet having removed from the Costa website the page devoted to the joys of cruising on Concordia:

It’s here, on this futuristic and exclusive ship, that the fun, relaxation and excitement of a special holiday take shape. Imposing and majestic, Costa Concordia is one of the biggest ships in the Costa fleet, a real floating temple of fun that will amaze you. Wellness, sport, entertainment and culture: a thousand different experiences on a unique holiday await you on board Costa Concordia.

Excitement indeed, and ‘a thousand different experiences’!  And, as the Costa website also promises:

Costa sails always with you: Stay connected from wherever to start your holiday right now! Immerse yourself in the world of Costa Cruises …

According to Wikipedia, Costa Cruises is part of the predominantly American Carnival group, which comprises eleven individual cruise line brands (including Cunard and P&O Cruises), operating a combined fleet of over 100 ships with a total of over 190,000 cabin berths.  Carnival Corporation and Carnival UK control operations in North America and the UK, while Costa Cruises Group, based in Italy, control operations in the rest of Europe. The latter is responsible for operation of Costa Cruises in Italy, AIDA Cruises in Germany and Ibero Cruises in Spain. AIDA was previously a subsidiary of P&O Princes Cruises PLC, being transferred to Costa following the merger of Carnival Corporation and P&O Princess in 2002. Ibero Cruises is a new brand, created in 2007 as a joint venture between Carnival Corporation and Orizonia Group.  Tracking down the ultimate responsibility for what happened to Costa Concordia will be no simple matter.

*   *   *   *   *

Returning to Scotland for a moment, lovers of the natural beauty of the Lanarkshire landscape are appalled by the threat to one of its most outstanding and historic beauty spots posed by an imminent application for planning permission to undertake opencast sand and gravel quarrying on a vast scale in the immediate vicinity of the Falls of Clyde. This is officially designated a UNESCO World Heritage Site, yet the Lanarkshire and Scottish planning and preservation authorities mostly seem to have been persuaded (how?) that there is no need to object to the quarrying application. Luckily a professor at nearby Glasgow University (and an old friend), Mark Stephens, has set up a campaign, Save Our Landscapes, to try to save the Falls of Clyde and the surrounding area from ruin. As another distinguished economist has pointed out in a letter to The Scotsman, there is plenty of sand and gravel all over (or under) Scotland, and no need to pick on an area of special natural beauty to dig it out. Please have a look at the Save Our Landscapes Facebook page, and if you’re convinced by it, write a letter to The Scotsman or the Glasgow Herald, or to your MSP (if you live and vote in Scotland), or to South Lanarkshire Council, or to Scottish National Heritage (“We are the Government funded body that looks after all of Scotland’s nature and landscapes across all of Scotland for everyone“), urging that the quarry company, Cemex, be told to look elsewhere for their sand and gravel.

*   *   *   *   *

As a consequence of trouble with ageing, arthritic fingers plus outstanding filial generosity, most of this web post has been produced by dictation to a program of voice recognition software, Dragon NaturallySpeaking, absolving me from almost any need to hammer away at a keyboard. Initially sceptical about the possibility of any software reproducing my dictation without the need for me to spend as long correcting it as it would have taken to type it in the first place, I have been dazzled by the eerie accuracy with which this disembodied secretary reproduces virtually every word I say, down to the last name and comma. You have to ‘train’ the thing to get used to your tone of voice, accent, vocabulary and normal volume, by reading some prose to it and giving it some documents that you have written for it to scan and commit to memory. Once you have done this, it seems to know what you’re going to say even before you have said it. However quickly you type, Dragon will reproduce your dictation at 10 times the speed. No, I don’t have shares in the company that produces Dragon, so I feel free to recommend it to those whose typing is substandard or whose eyesight is beginning to fail, condition all too common in my age group. Just speak up!

Brian

Timing of the referendum

Alex Salmond has now said that he proposes to hold the referendum in the autumn of 2014. The British government position is that it should be held much earlier, on the grounds that it’s desirable to end the uncertainty about Scotland’s future as soon as possible, since such uncertainty inhibits investment and other business decisions. The UK government also claims that the real reason for the SNP’s wish to postpone the referendum until late 2014 is that there is currently no majority in Scotland for independence, and that Salmond hopes that support for independence will grow sufficiently for him to get a majority for it in a referendum held later rather than sooner. No doubt this is indeed the case: but there is nothing disgraceful or unusual about timing a referendum in such a way as to maximise the chances of getting the result you want. Since this is primarily an issue for Scotland and the Scottish people, it seems unreasonable and oppressive for a decision on timing to be forced on Scotland by the UK government against the wishes of the duly elected Scottish government.

The device which the UK government proposes to use in order to force the referendum on Scotland earlier than the Scottish government wishes is the inclusion in the draft Order in Council empowering Scotland to hold the referendum of a deadline, after which Scotland’s power to hold a referendum on independence will lapse. It seems to me clear that the Scots have every right to resist this imposition on their government’s right to decide the timing of the referendum. If the UK government persists in trying to make this a condition of giving the Scottish government the legal power to hold a referendum, the effect is likely to be to increase support for Scottish independence among those who are at present undecided. It will be seen as a prime example of ‘English’ interference in Scottish affairs.

The questions to be asked

Alex Salmond has repeatedly suggested that “at present” there is a case for including among the options on offer in the referendum what has become known as ‘devo max’ – i.e. a substantial increase in the powers devolved from Westminster to the Scottish parliament and government, including especially additional powers over taxation and borrowing. The UK government opposes this, claiming that the only way to be sure of getting a clear and decisive result is to put to the Scottish people in the referendum a straight choice between independence and the status quo.

Opinion polls and most commentators agree that there is considerable support in Scotland for some kind of devo max, and that if devo max were to be offered as an option in the referendum, it would probably attract considerably more votes than straight independence. Alex Salmond’s (distinctly non-committal) suggestion that devo max might be offered as an alternative to independence is generally, and probably rightly, regarded as an insurance policy against the SNP ‘losing’ the referendum in the event that there is no majority for independence.  The UK government presumably hopes that by seeking to restrict the choice in the referendum to only two options, independence or the status quo, the issue of independence for Scotland will be put to sleep for a generation: at present the opinion polls suggest that barely a third of Scottish voters would vote for independence if the referendum were to be held now.  Westminster’s strong objection to the inclusion of a devo max option is less easy to understand. The fear of an inconclusive result if there are three options on the ballot paper (independence, devo max, or the status quo) may be genuine, but there seem to be no grounds for overruling the Scottish government’s judgement on this. Equally, it would be difficult to argue that a generally acknowledged wish for greater devolved powers among the Scottish people should be ignored or denied expression. This would inevitably be interpreted as ‘English’ unwillingness to give up more powers to interfere in Scotland’s internal affairs.

The UK government’s consultation paper includes in its draft Order in Council a provision that “There must be only one ballot paper at the referendum, and the ballot paper must give the voter a choice between only two responses.”  Like the crude attempt to overrule the wishes of the Scottish government on the timing of the referendum, this proposed restriction of the number of options to be offered in the referendum, contrary to the provisional intentions of the Scottish government, seems likely to be resented in Scotland, and to run the risk of encouraging additional support for independence.

Status of the referendum

Alex Salmond has suggested in the past that while Scotland has no legal power under devolution to hold a binding referendum on independence, there is no reason why the Scottish government and Parliament should not hold an advisory referendum to establish the wishes of the Scottish people on the independence issue. The UK government contests this view, arguing that even an advisory referendum would exceed the powers of the Scottish parliament and government under the devolution laws. The UK consultation document maintains that the distinction between a binding and an advisory referendum is ‘artificial’: either, it says, would be open to a challenge in the courts as being beyond the powers of the Scottish Parliament and government.

Whatever the strict legal position on this, the reality is surely that the initial referendum on independence will in practice be advisory only. If its result shows a clear majority of Scots in favour of independence, the next step will have to be a difficult and probably protracted negotiation between Holyrood and Westminster to determine the terms of the separation between Scotland and the rest of the UK. Innumerable knotty issues will need to be settled, ranging from how the U.K.’s national debt and the revenues from North Sea oil are to be divided up, to the future of the Scottish regiments in the British Army and British defence installations in Scotland, with hundreds of other practical matters requiring decision in between. Much will depend on the attitude of the UK government at the time – not necessarily the present coalition government of David Cameron – to the terms that are to be offered to Scotland: these could be generous and constructive, in the interests of future amity and collaboration between the two countries after independence, or vindictive and punitive, reflecting the anger and resentment that will no doubt be felt by many in the rest of the UK, especially in England, over having been spurned by the Scots. If Westminster adopts a hostile and confrontational attitude to the independence negotiations, it might even prove impossible to reach agreement on every detail of the arrangements for Scottish secession. Such a deadlock would prompt a constitutional crisis of immense proportions.  Whatever the legal position, it would obviously be intolerable for the English (and the rest of the UK) to appear to be resisting the clearly and democratically expressed wish of the majority of the Scottish people for independence.

Assuming, however, that agreement were eventually to be reached on the terms of Scottish separation, those terms (especially if some of them were controversial and likely to be widely opposed in Scotland) would presumably need to be put to the Scottish people for acceptance or rejection in a further referendum, which this time would have to be legally binding. At the first referendum, whether in the autumn of 2014 or earlier, Scots would be voting for or against independence without knowing in any detail what independence would actually entail, since the full implications of independence will remain to be negotiated with Westminster. Consequently, the first referendum, if it results in a majority for independence, cannot be regarded as a binding decision that Scotland must become independent: it will simply establish the wishes of the Scottish people as a necessary basis for the subsequent negotiation with Westminster of the nuts and bolts of secession, if the referendum goes that way. The UK consultation document is misleading when it describes the distinction between an advisory and a binding referendum as artificial: the distinction is real, but it seems to have no practical effect, since in the nature of things the forthcoming referendum can’t itself be binding. It must be subject to the outcome of subsequent negotiations, if it results in a majority for either devo max or independence. There is however no reason why this should become a bone of contention between the UK and Scottish governments: both these have already agreed on the need for consultation between the two governments over the power to hold a referendum and to determine such matters as its timing and content.

The underlying issue: Scottish independence

It would of course be wrong to suggest that there is no fundamental or irreconcilable difference between the principal UK parties on the one hand and the SNP government at Holyrood on the other. On the substantive issue of Scottish independence, they are clearly at opposite poles. The debate on the practical implications of Scottish independence, including the question of the terms on which Scotland could expect to be admitted to the European Union as a new full member, has only just begun in the UK outside Scotland. It’s possible that as these issues get to be clarified in the course of the coming debate, enthusiasm for independence in Scotland may be somewhat damped down. Alternatively, if the UK government’s current hard line on timing and the questions to be put in the referendum continues, it is likely to generate such resentment in Scotland that enthusiasm for independence may actually continue to grow. To a large extent, that is in the hands of Mr Cameron and his colleagues. But it provides the UK Labour Party, which also of course wishes to preserve the integrity of the United Kingdom, with an opportunity to influence the UK government’s approach to the referendum in the direction of co-operation and moderation. It’ll be interesting to see whether Ed Miliband has the breadth of vision to renounce party point-scoring and to assume the role of conciliator in the national interest at a time when the future unity of the country is more seriously challenged than for many decades.

Personal post-script:  Together with a very small group of other bloggers and commentators outside Scotland, I have been seeking to encourage debate on all these issues ever since the SNP’s sweeping victory in the Scottish elections in May 2011:  my blog post at http://www.barder.com/3217 at that time and my letters in the Guardian and the Financial Times, reproduced here and here, will all bear re-reading.   I make no apology for regarding the prospect of Scottish secession from my country with utter loathing:  for me as an English Briton, Scotland is as much an intrinsic and much valued part of my homeland as Cornwall or Manchester, and its loss would be like an amputation.  I strongly favour devo max (i.e. the grant of full internal self-government to Scotland) as not only a price well worth paying for the preservation of the unity of my country, but also as intrinsically desirable both for Scotland and also for the other three nations of the United Kingdom, including England. Full internal autonomy for all four nations would constitute a UK federation, which is the logical conclusion of devolution and in the medium term the only possible durable, democratic relationship between the component parts of the United Kingdom.  The achievement of devo max for Scotland would surely sharpen the appetite of the English for the same rights of self-government, with an English parliament and government, to match those already enjoyed by the other three UK nations, thus bringing us appreciably closer to our federal destination. How sad that not a single major UK political party has yet grasped the logic and benefits of such a vision!

Brian

New facts and insights are belatedly available from three especially valuable sources:

1.  A painstaking full-page reconstruction by the Financial Times of 17-18 December of the events of the night of 8-9 December and the fortnight leading up to them is essential reading, here (“Following numerous interviews with participants, the Financial Times has pieced together what happened in those two weeks“).    As well as shining a pitiless light on the performances of the protagonists, this includes some glorious nuggets:

Mr Sarkozy was characteristically blunt. “David [Cameron], we will not pay you to save the euro,” he said, according to one account. He went on to rebuke Helle Thorning-Schmidt, the freshly elected Danish prime minister, for the temerity to speak up for a deal at 27. “You’re an out, a small out, and you’re new. We don’t want to hear from you,” Mr Sarkozy said.  [The Danish prime minister is perhaps better known over here as Mrs Stephen Kinnock. -- BLB]

The FT account makes it clear, among many other striking things, that Mr Cameron had ample advance warning from, among others, Mrs Merkel, President Sarkozy, the British ambassador in Berlin, the British embassy in Paris, and even the prime minister’s own Chief of Staff, Ed Llewellyn, that his conditions for refraining from exercising his veto would not be acceptable to the key players at the summit meeting, although the FT notes, tellingly, that Cameron might not have been aware of “the warning lights flashing in Whitehall” (were both the FCO and No. 10 asleep?).  But he must have heard the warnings by Mrs Merkel and Nicolas Sarkozy, and presumably from his own Chief of Staff, from their own lips, even before his aircraft took off for Brussels.

This prompts the question: why did the prime minister lay down his demands at the summit when he knew they were bound to be rejected?

There are two possible answers to this.  One, the more respectable one, is that he was convinced that in the end the UK would not be able to sign to the proposed new EU treaty,  and he may have judged it better to make that position plain at the outset, before any treaty had even been drafted, rather than precipitating an even greater crisis in UK-EU relations by vetoing the treaty after it had been negotiated and approved by, probably, the whole of the rest of the EU, or by failing to secure parliamentary approval for it, or because a UK referendum that would probably be unavoidable if HMG and parliament had approved the treaty would almost certainly result in its rejection.  These would have been honourable reasons for putting the boot in before the game had even begun.  But their validity would have depended far too heavily on a host of extremely shaky assumptions about the future, some them already pretty well exploded.

The other possible explanation is much less defensible.  Since taking office, Mr Cameron and the eurosceptic William Hague, his foreign & commonwealth secretary, who accompanied Mr Cameron at all the key meetings on the eurozone crisis, had sought to appease the 80 or more eurosceptical and europhobic back-benchers of their own party by promising that if there should be another EU treaty proposed, the government would use it — by implication irrespective of its contents or merits — to force the EU to “return to Britain” some of the powers currently “surrendered” to the EU.  How to achieve this improbable turning back of the European clock? By threatening to veto the new treaty unless the rest of the EU acceded to the UK’s demands.  Perhaps Mr Cameron (and more probably Mr Hague) believed that this blackmail strategy would work, despite the several warnings that it would not.  More likely they both feared the wrath of their Europe-hating foot-soldiers on the back benches if they returned from Brussels having “agreed to a new treaty” but without having secured the repatriation of a collection of EU powers to Britain as a condition of that agreement.  By launching their demands and then, when the demands were rejected, carrying out the threat to ‘veto the treaty’, they were able to claim that they had honoured their promise; and that although they had not been able to repatriate any powers, at least they had stymied any new treaty (and thus by implication prevented Brussels from snatching yet more powers).  This line has been triumphantly successful, at any rate in the short term, with Cameron hailed by the europhobes as a conquering hero on his return from Brussels and his government propelled by general patriotic pride in his supposedly Churchillian stance to a position some way ahead of Labour in the opinion polls.  But this line of defence also depended on a series of extraordinary misunderstandings or misrepresentations, deliberate or otherwise, of what had actually happened.  Read on.

2.  The second new source of information to have come to light in recent days is the publication by the Daily Telegraph of somewhat indistinct photocopies, possibly pictures taken with a mobile phone, of a two-page ‘annex’ listing in detail the specific demands made by Cameron and circulated to his astonished EU partners at around 2am on that fateful Friday morning.  These can be both seen and, with some difficulty, read, here.  It’s surprising that this spectacular Daily Telegraph scoop has received, as far as I know, almost no attention.  It certainly seems to deserve the description of “exclusive” (“this is the UK’s protocol demand to the EU – obtained exclusively by The Telegraph’s Bruno Waterfield in Brussels“).  Well done, Bruno!  What a pity that we still don’t have the document to which these two pages were an Annex, unless that too is buried somewhere on the Web or in some published government paper; if it is, I have failed to find and exhume it.

The UK demands, essentially Britain’s conditions for not vetoing a proposed treaty that had not yet been drafted and whose likely contents were known only in vague outline on the morning of 9 December, mainly comprised moving a number of subjects from the category of decisions currently made by ‘qualified majority voting’ (qmv), and so not subject to any member state’s veto, to the category of decisions requiring unanimous agreement, and thus susceptible of being vetoed or otherwise rejected (eg by a national parliament or referendum) by any one or more EU governments.  As you can see from the Daily Telegraph’s photocopies of the two pages, the whole Annex is headed “Financial Services” and the entire list of items proposed to become subject to the veto concerns aspects of the regulation of financial services.  Some of these are so technical and detailed as to appear almost comically trivial:  the “Location of the European Supervisory Authorities“, for example, and the “requirement for executive powers of ESAs to be clearly set out and not replace the exercise of discretion by member states’ competent authorities.“  No doubt such matters are significant in the eyes of those affected by them, but the other EU heads of state and government receiving their blurry photocopies of demands like these for the first time at 2 o’clock in the morning could be forgiven for exhibiting a certain impatience, especially when they were supposed to be staying up late to devise a rescue plan for the Eurozone which had nothing whatever to do with the location of  the European Supervisory Authorities, or even with the regulation of financial services.

This remarkable document prompts another question:  did Mr Cameron (or Mr Hague, or the LibDem leader and deputy prime minister Nick Clegg, who had approved Cameron’s strategy in advance without apparently imagining that Cameron would go ahead and use his veto that very night if his demands were rejected) really believe that unless vetoed in advance, the proposed EU treaty would include provisions that would damage the interests of the City of London or indeed that would be binding on the British government and on the City? (If so, on what evidence, available on the morning of 9 December, did they base that belief?) Or was this just a case of using any proposed new treaty, whatever its subject and however innocuous in terms of British interests, in order to try to wrest back powers from Brussels to Westminster? In the latter case, they must surely have foreseen that trying to exploit an emergency euro rescue meeting at the EU’s highest level, in the middle of the night, to indulge the neuroses of a handful of cranks and obsessives in the British parliament, was more likely to cause massive exasperation than to win friends and influence people.

3.  We now also have a third source of illumination, almost as difficult to track down as the Daily Telegraph’s Annex scoop and, as far as I can see, equally little noticed by our media: namely, the text of the first draft of the proposed agreement of the 26 EU members (i.e. all except the UK), a draft agreement outside the formal framework of the existing EU treaties (because of Mr Cameron’s ‘veto’) designed to impose such fiscal discipline on the 17 members of the eurozone as to reassure the all-powerful markets and ratings agencies that past misbehaviour by the more fiscally challenged members would not be repeated, and that if it was, the miscreant would be promptly summoned to Mrs Merkel’s study for a dose of traditional punishment, pour encourager les autres.  The first draft of the proposed agreement is published in full here.  The Reuters news agency has published a useful summary of its main provisions (here).  A few especially interesting features are also worth noticing, subject to the important caveat that this is only a first draft, not yet even discussed by the member states, and certain to differ substantially from whatever text may eventually be agreed.  But it can be assumed to correspond pretty closely with drafting instructions received from Mrs Merkel, President Sarkozy and perhaps others.

The proposed agreement was drafted only after the EU summit at which Mr Cameron has been assumed to have ‘vetoed’ it.  Questions:  Since no draft treaty was on the table at the summit on 8-9 December, what exactly was the document or proposal that Mr Cameron ‘vetoed’? If his was a true veto, it must have been the kind of document or proposal that could be adopted only by unanimity:  would that really have applied to a mere proposal to commission a draft treaty for future consideration and negotiation with just a rough indication of the kind of provisions it should contain?  What would have been the problem with his eurosceptic followers if the prime minister had returned to Westminster with the news that he had agreed to the drafting of a new EU treaty which he would have no hesitation in vetoing, much later when negotiations on a draft began, if it proved to constitute a threat to UK or City interests or to entail a fresh surrender of powers to Brussels, or if it failed to take into account safeguards that Britain would insist on including in the text in the course of the negotiations? In other words, did Mr Cameron spectacularly jump the gun?

Another question: If all that Mr Cameron did on 9 December was to promise that he would veto at the appropriate stage any new EU treaty to establish a eurozone fiscal union, regardless of its contents or implications for UK interests, purely because his 2am demands on financial services regulation had been rejected, why didn’t the other 26 merely tut-tut, take note, and express the hope that when he saw the terms of the new treaty Mr Cameron would find all his concerns satisfactorily addressed, and then proceed to instruct the Commission to produce a draft EU treaty for consideration by all 27 EU members some time in January? Such an outcome would have been approved by 26 votes to 1 and no question of a veto should have arisen.  I know of no explanation for this.

Immediately after the 26 EU summiteers had agreed to go ahead with an inter-governmental agreement outside the EU treaties’ framework (Cameron having refused to agree to an EU treaty) to form a eurozone fiscal union and define its rules and sanctions, David Cameron insisted publicly that he would not agree to any of the EU’s institutions or facilities being used by the 26 for drafting, negotiating, finalising or enforcing their proposed non-EU agreement.  He seems to have believed that he could prevent the Commission from drafting the new agreement and participating in discussion of it, EU conference facilities being used for the negotiations and, most serious of all, the European Court of Justice from enforcing compliance with the new eurozone fiscal rules, on the grounds that these institutions and facilities “belonged” to all 27 EU member states and could not therefore be used by a group within the 27 except with the consent of all 27;  and he made it clear that such consent by the UK was not forthcoming.   Such deliberate sabotage not only smelled nasty, disruptive and vindictive, but also looked unlikely to be achievable. It was immediately challenged by the Commission’s lawyers, although Cameron’s initial assertion of a legally water-tight ban was allegedly based on advice from the head of the legal service of the Council of Ministers, the splendidly named Mr Hubert Legal, who, however, appears to have changed his mind later.  Whatever the legal situation might have proved to be, the really significant thing is that Mr Cameron quickly dropped his wrecking tactics and has now agreed to the full use of all EU institutions and facilities for the working out and enforcement of the agreement of the 26, as explicitly confirmed by Nick Clegg in his Guardian interview published on 18 December — and indeed by the text of the draft agreement of the 26, itself apparently produced by the EU Commission and replete with references to the close involvement of the EU and its institutions. Moreover the preamble to the draft agreement actually has its eventual signatories

BEARING IN MIND that the objective of the Heads of State or Government of the euro area Member States and of other Member States of the European Union remains to incorporate the provisions of this Agreement as soon as possible into the Treaties on which the European Union is founded

– which is about as clear a rebuke to the UK coalition government in a draft legal instrument as can be imagined.

Questions:  What was the purpose of the prime minister’s doomed attempt to complicate the preparation, operation and enforcement of the agreement of the 26 by denying them access to EU institutions and facilities?  What possible UK interest did he hope to promote by this apparently vindictive strategy?  And in particular, what were his reasons for abandoning it within days — pressure from his LibDem coalition partners, legal advice from the legal advisers of the Commission, the European Council or the British government, or belated remorse?

I think we should be told.

Publication of the first draft of the agreement of the 26 answers a number of questions raised by the events of 9 December, including some questions that have surprisingly rarely troubled the commentariat.  For example, –

Question:  Will the disciplinary rules of the new eurozone fiscal union established by the agreement of the 26 apply to all signatories of the agreement, including the nine EU members which are still not members of the eurozone, or only to the 17 eurozone members?
Answer:  It won’t apply to non-eurozone members at all, until and unless they join the euro — and indeed it won’t necessarily be binding on eurozone members either, unless and until they ratify the agreement.  The agreement will come into effect only on “the deposit of the ninth instrument of ratification by a Contracting Party whose currency is the euro” (Art. 14.2).  In other words, the agreement comes into effect even if only nine of the 17 eurozone members have ratified it, and even then it won’t be binding on the eight eurozone members who haven’t ratified it, until they do (if at all), and however many of the 26 may ratify it, it will only be binding on those who both use the euro and have ratified the agreement.  But the agreement allows non-eurozone members who sign and ratify it to opt to be bound by its provisions in advance of joining the euro, if they wish.

Question:  Will the agreement interfere in any way with the operation of the EU single market?
Answer:  No.  The draft includes provision that everything in the agreement must be compatible with the single market and other EU law, and in the event of conflict between the provisions of the agreement of the 26 and those establishing the single market, the latter will prevail.  (This appears to demolish one of the alleged excuses for Mr Cameron’s ‘veto’.)

Question:  Will the signatories to the agreement of the 26 form a legally established separate and distinct bloc within the EU?
Answer:  Yes.  The draft agreement provides for regular meetings of the heads of state and government of the signatories of the agreement of the 26 along with the Presidents of the EU Commission and the European Central Bank, under a separate President whom they will themselves elect.  This has potentially dire implications for the UK, which could well find itself the only EU government not eligible to attend these important meetings, where matters other than those directly affecting the eurozone will almost inevitably be discussed and agreed.  At regular meetings of the European Council, Britain may in consequence regularly find itself confronted with faits accomplis negotiated and agreed in advance in a “Euro Summit meeting” of the kind established in Art. 13.1 of the draft agreement.

Many other questions remain unanswered:

Question: Will Britain have any say in the negotiation of the agreement of the 26 and any opportunity to ensure that there is nothing in it that could damage UK interests, including those of the City of London?
We don’t know.  Mr Cameron has (surprisingly?) accepted a conciliatory invitation to the UK to be represented as an observer at the forthcoming talks on the text of the agreement of the 26, but it’s not clear whether this will entitle the UK observer to propose amendments or additions to the draft text or even to speak at those meetings.  Obviously the UK will have no vote at the meetings.  In the words of the Reuters commentary,

“In the coming weeks, representatives from the 26 countries expected to take part in the pact will meet to refine the details, with a final agreement expected in January. European Council President Herman Van Rompuy, who chairs EU summits and has overseen efforts to get countries to commit to the new pact, has called another summit of all EU heads of state for late January or early February, by which time officials hope the compact will have been ratified by a quorum of states.”

Question: What was the basis for Mr Cameron’s fears, confirmed by Mr Clegg in his Guardian interview, that if he had consented to the proposal at Brussels to have a new EU treaty without getting compensatory concessions over repatriation of powers to Westminster, he would not have been able to get that consent approved by the parliament at Westminster?
Mr Clegg claims to foresee a situation in which a combination of Labour opportunism and Tory europhobia might make it impossible to get any UK agreement to the preparation of a new Treaty approved by the house of commons. This is utterly mystifying.  There would have been no requirement for Parliament to approve a decision merely to allow a new EU treaty to be drafted and then negotiated by all EU members, with the possibility of a UK veto if the treaty’s terms proved unacceptable or if it had not proved possible to satisfy any demands made by the UK in the course of the negotiations.  Nor could the question of a referendum on such a decision have arisen, until (a) a treaty had been finalised, (b) the British government had signed it and proposed to ratify it, and (c) ratification had been approved by parliament.

Question: If the only proposal on the table at the summit on 8-9 December was whether to commission a draft EU treaty designed to form a eurozone fiscal union with tight fiscal disciplines binding only on eurozone members, why did Mr Cameron not go along with it, reserving his decision whether to veto it until he knew what would be in it, preserving Britain’s right to take a full part in its negotiations, and presenting his demands regarding EU powers on regulation of financial services, if relevant, to a later stage when the contents of the draft treaty were known?

Perhaps Mr Cameron will tell us the answer to that question one day.

Question:  Is an agreement of the 26 that requires, e.g., the approval of a majority of other eurozone governments for every eurozone country’s budget, if any single eurozone government (think Germany) challenges it, likely to be approved by the parliaments of a minimum of nine eurozone states, and even if it is, how likely is such a requirement likely to be approved in a referendum in any of those nine states?
In other words, is it all likely to happen anyway?

Question:  Even if the whole thing can be approved and brought into operation within the next three or four months (which seems unlikely), will it be enough to satisfy the markets and the ratings agencies that the eurozone is restored to health and triple-A ratings can safely be given back to Greece and the other eurozone countries currently under siege?  Will the promise of a future eurozone fiscal union with draconian rules and subject to ferocious sanctions be enough without international funding on a massive scale to avert sovereign defaults within the eurozone?
What do you think?

And, finally,

Question: For $64,000:  Will the medicine of cuts and austerity, deflation and deregulation, which the proposed agreement of the 26 is designed to institutionalise and set in legal concrete, be likelier to cure the patient, or to kill him?
One irony among many is that Mr Cameron and Mrs Merkel are both committed to the kind of pre-Keynesian, neo-liberal hair-shirt remedies for the debt crisis that are so far failing spectacularly in Britain — and which indeed are at this point making a bad situation measurably worse.  But Mr Cameron believes that ‘there is no alternative’ to them, and that they need to be applied throughout Europe, exactly as Mrs Merkel’s EU treaty, or failing that the agreement of the 26, is designed to do.  And who has made it impossible for this to be accomplished in a binding EU treaty and for Britain to play any part in bringing it about, being relegated to the sidelines as a mere observer in splendid isolation from the rest of the EU?

There would have been one excellent reason for refusing to go along with the kind of treaty now actively in preparation, in the form of the agreement of the 26:  a fundamental disagreement with the kind of economic remedies, as proposed in the agreement, that brought about the recessions and eventual slump of the 1930s, culminating in uncontrollable social unrest and eventually a world war. But even if Mr Cameron had embarked on his campaign of veto and obstruction for that extremely cogent reason — which of course he did not — the time for obstruction would have been much later in the process.  The verdict must be a simple one:  he did what could turn out to have been the right thing but for utterly wrong reasons: and even then, he acted so prematurely that Britain’s influence on these great events is now likely to be close to zero.

Footnote:  You may well know of other evidence now available that will answer some of these unanswered questions but which, through lack of diligence or research staff or both, I have failed to track down.  If so, it would be a great kindness if you will append it to this as a comment, with chapter and verse as necessary.  These are matters with great potential consequences for us all, and the more we know about them, the better.

Brian

There’s no need to repeat here the most obvious paradoxes in these events. These have been extensively discussed in the media since the news of the disaster broke on Friday morning – how Cameron’s demands, crudely presented as his price for not vetoing what the rest of the EU wanted, were suddenly tabled in the early hours of the morning in Brussels on a take-it-or-leave-it basis, without the smallest attempt to forge alliances in advance to ensure that they would receive at least some support;  how our 26 EU partners were totally baffled by the apparent irrelevance and technical nature of our demands, for which they were completely unprepared – our diplomats were forbidden to distribute the texts in advance for fear of leaks;  how our veto achieves no possible purpose in promoting UK interests, since the remaining 26 EU members will go ahead anyway with an inter-governmental pact outside the Lisbon Treaty to forge a eurozone fiscal union, but the UK will now be excluded from the crucial meetings at which the terms of the pact will be hammered out; how LibDem ministers had succeeded in whittling down the UK demands to what they hoped were potentially negotiable, but were appalled to learn at 4am on Friday that because those demands had been virtually ignored, gaining support from not a single EU partner, the prime minister had actually carried out his self-harm threat to veto the eurozone rescue plan as an EU operation;  how the UK veto does precisely nothing to protect the interests of the City of London, but actually weakens the scope for protecting those interests in the coming months and perhaps years.

However, a few features of this sorry saga have not perhaps had the attention they deserve.  For example, –

• Most of the EU, including the German Chancellor, Angela Merkel, wanted a new EU treaty amendment to the Lisbon Treaty to provide for a new régime for the eurozone, imposing fiscal discipline enforceable by the EU’s institutions, including the European Court.  A minority, including the French President Sarkozy, would have preferred an inter-governmental pact outside the Lisbon Treaty, to avoid conferring new powers over member states on the EU Commission and other EU organs; but in a series of informal meetings in the days preceding the summit – meetings from which Britain was excluded because Cameron had pulled the UK Conservative party out of the powerful centre-right European Peoples’ Party grouping in deference to the views of his party Europhobes —  Sarkozy had eventually yielded to Mrs Merkel’s pressures and had agreed to go along with a formal amendment to Lisbon.  Assuming that Cameron and his Conservative colleagues (but probably not the coalition LibDems) would also have preferred the new measures to be installed outside the Lisbon treaties and the EU’s institutions, there should have been scope for a French-British alliance to press for this procedure against the preference of the Germans.  But because of UK failure to participate in the preliminary conversations before the summit, the opportunity for this potential collaboration was passed up.  The UK veto enabled Sarkozy to get what he wanted while enabling him to blame Britain for wrecking the plan in the form preferred by Germany, to which Sarkozy had reluctantly agreed.
• Cameron didn’t veto a new EU treaty.  There was not at this stage any treaty to veto: it remained to be negotiated.  What Britain vetoed early on Friday was the proposal to set up the new eurozone fiscal union and embody its rules in a new EU treaty.  This forces the rest of the EU, all 26 members, to proceed instead by way of an intergovernmental pact outside the EU treaties.  Britain is threatening to prevent the use of EU resources – the participation of the Commission, the European Central Bank or the European Court of Justice, and their extensive facilities, for the negotiation and establishment of the new eurozone agreement.  If Britain succeeds in this, it will hugely complicate the task of setting up the new fiscal union and establishing its enforcement powers and procedures.  It also greatly reduces the international credibility of the plans for the new régime and market confidence in its chances of success in staving off the collapse of the single currency.  Is that really what Britain wants?  How does it advance UK interests to make the rescue of the eurozone more difficult?
• Cameron’s demands for ‘safeguards’ to protect the interests of the City, as the price of Britain refraining from vetoing the eurozone rescue plan in an EU treaty, had no direct bearing on that plan.  The main demand was for a UK veto over future EU decisions (‘directives’) affecting the regulation of national financial institutions, directives which under existing EU law are decided by qualified majority voting and thus not subject to a veto.  Cameron was demanding a change in existing EU law, not protection against some hypothetical new provision in the proposed eurozone rescue treaty.  The idea that the 26 other EU governments could be bounced into such a change in existing EU law, irrelevant to the eurozone rescue plan, without prior notice and at 2.30 in the morning, purely to avoid a UK veto of what everyone in the room, ostensibly including Cameron, was there to do, was frankly fatuous.  It was a bizarre attempt at blackmail, in which the blackmailer, failing to get what he wanted by threatening his 26 victims with a blunderbuss, demonstrated that he had not been bluffing by pulling the trigger – and shooting himself in the foot.
• It has been widely assumed that the protection of City interests demanded by Cameron was intended to prevent the EU from imposing stricter regulation of the UK’s financial institutions than that proposed by the British government.  In fact in several respects, including the relationship between banks’ capitalisation and their loan liabilities, the regulatory measures proposed for UK financial institutions by the British government are stricter and more onerous than anything proposed by the EU.
• The banking crisis, credit crunch, sovereign debt crisis and threat of euro collapse are all attributable in large part to failings in regulation of financial institutions throughout the western world up to 2008.  That failure is in turn mainly attributable to the impossibility of any one government imposing stricter regulation than others, because of the globalised character of international capital, which can easily move its resources to whichever country has the lightest regulation.  Thus effective regulation can only be exercised by international agreement.  Long before 2008 Gordon Brown had sought to interest the Americans and our EU partners in the possibility of tightening bank regulation on an international basis, but had failed to elicit any response.  Now everyone recognises the need for international collaboration to impose tighter regulation on an international basis if it is to be effective in averting future crises; hence the moves for EU-wide regulations currently in preparation.  Cameron’s demand that these should be made subject to the veto of any one EU government is thus calculated to undermine  the effectiveness of one of the most important weapons in the global armoury against future financial crises.  No wonder he found no takers in Brussels at 2.30am on Friday morning.
• Tory media and parliamentary spokespersons since Friday, seeking to represent the Cameron veto as a triumph of the British bulldog approach to international diplomacy, have sought to imply, whether in deliberate obfuscation or out of ignorance, that the veto was necessary to prevent the EU from imposing a financial transaction tax (aka Robin Hood or Tobin tax) which would disadvantage the City of London more expensively than any other EU country’s interests, because of the disproportionately large size of the UK’s financial sector.  In fact this is wholly irrelevant to the eurozone rescue plan and the proposed new euro fiscal union which were the subject of the summit.  Taxes may be imposed by the EU on member states only on the basis of unanimity:  so we already have a veto over any proposal to impose a financial transaction tax on us, or on anyone else.
• Defenders of the Cameron veto have also tried to imply that the strict and enforceable disciplines intended to be imposed on eurozone members would also be imposed on any EU countries outside the eurozone if they signed up in Brussels last week to the proposal for a eurozone fiscal union.  This is simply not true.  It is however true that new rules for fiscal discipline binding on 17 eurozone members of the EU and supported by at least six of the others (and possibly by all nine of the others, excluding Britain) will inevitably have a powerful indirect effect on all future EU policy and decisions.  When the 23, or probably 26, EU members participating in the negotiation of the new eurozone fiscal union and its rules have acquired the habit of consulting and collaborating with each other for that purpose, nothing will stop them agreeing together on other EU matters.  The exclusion of Britain, and only Britain, from this vitally important operation is bound to result in Britain increasingly being presented in future with faits accomplis, done deals already discussed and agreed in other forums from which Mr Cameron has recklessly excluded himself and his country.
• Apologists for that veto have argued variously that if Cameron had agreed to participate in drawing up a new treaty creating a eurozone fiscal union with enforceable rules, he would have been forced to approve the resulting treaty but unable to get it through the House of Commons.  Alternatively, it is asserted, even if he managed to get it approved by parliament, he would not be able to avoid a referendum on it in which it would almost certainly be rejected, given the generally eurosceptic mood of the country and the power of the populist tabloids.  In fact, however, neither proposition holds water.  Cameron would have no difficulty in securing parliamentary approval for an EU treaty that would be supported by virtually all Labour and LibDem MPs as well as a respectable number of Conservatives.  Having to rely on Labour and LibDem votes for a treaty to which he had signed up would be represented as a humiliation, but so what?  Was it really worth incurring the resentment of virtually the whole of Europe and the silencing of Britain’s voice in the EU for the indefinite future just to avoid a momentary embarrassment in the House of Commons?  As for a referendum, none would have been necessary, since the new treaty would not have entailed any transfer of powers from Westminster to Brussels, Britain not being a eurozone member.  The head-banging Europhobes would have screamed blue murder if deprived of a referendum, but they are already doing that anyway, egged on by the eurosceptic action of the the prime minister and scenting the seductive prospect of a referendum, not just on a new treaty, but on UK membership of the EU — which they might actually win.

Such is the price we are all having to pay for a prime minister who lacks the cojones to face down his europhobic followers in parliament and the press.  Indeed, whether they are truly his ‘followers’ is a moot point.  Which are the followers and which the leader — Bill Cash?  Those who meekly tiptoe behind the focus groups, the opinion polls and the prejudices of foreign newspaper proprietors, instead of either leading or ignoring them, are liable to end up in a quicksand.  The missing ingedient in our present discontents is clear, cogent and determined leadership.  The besetting sin of our present political ‘leaders’ is cowardice.  Ed Miliband, are you listening?

Brian

Some of the comments on the Guardian editorial (“Sentencing: Bloodlust for life”) on the paper’s ‘Comment is Free’ website make sad reading, reflecting the fog of ignorance and prejudice that surrounds the whole issue of IPPs.  In reply to one of these, by no means the worst, I have added my own two-penn’orth of support for IPP abolition:

It’s sad to read the pedantic criticisms by the anonymous ‘syncretist’ of this powerful and cogent editorial, which makes an unanswerable case for abolishing IPPs. The ‘presumption of liberty’ is a pithy way of stating the principle that a person who has completed his punishment is entitled to be released unless there’s an overwhelming likelihood that he’ll be a danger to society if he is, whereas under the perverse logic of IPPs the onus is on the prisoner to prove that he won’t reoffend — an impossible requirement, as the editorial rightly points out.

‘Kafkaesque’ is an apt word for the dilemma described — where the IPP prisoner can’t convince the parole board that it’s safe to release him until he has taken a specified course, eg in anger management, but when he applies for a place on the course, he is turned down because he isn’t assessed as sufficiently dangerous to warrant a place on it! Kafkaesque indeed — and Helleresque too, as you say (a classic case of Catch 22). Also Alice in Wonderland. It accurately describes the nightmarish predicament that IPP prisoners who have paid their debt to society and completed the punishment imposed by the court are still likely to face — effectively a life sentence for an offence that no-one could possibly think deserves imprisonment for the rest of a person’s life.

Not a single penal reform organisation and not a single authority with experience of penal affairs, from former Inspectors of Prisons to the Chair of the Prison Governors Association, or from Liberty to the Prison Reform Trust, supports the retention of IPPs. Their continued use is an affront to justice and Labour’s opposition to their abolition is indeed shameful (and I write as a lifelong Labour supporter). Well said, Guardian (and also Simon Jenkins on the preceding page).

Brian Barder

IPPs are unjustifiably wrecking the lives of tens of thousands of people — nearly 7,000 IPP prisoners who have no way of knowing whether they will ever be released, and their families, partners and friends who dread the real possibility that they will never see their loved ones return to their homes again.  The system will be abolished if Parliament passes the relevant clauses of Ken Clarke’s reform Bill now going through its various stages.  Unfortunately the same Bill includes much more questionable provisions as well, including indefensible limits on legal aid and backward-looking proposals for new mandatory sentences for the most serious offences, in addition to those for murder.  Swallowing the latter may be the price that has to be paid for getting rid of IPPs, which must be the top priority.  If you care about justice and want to see the righting of a great wrong, please use every means open to you — blogging, Tweeting, Facebook, writing to your MP or a national newspaper — to urge everyone to read the two forceful pieces in today’s Guardian, and to use whatever influence you might have with the Labour Parliamentary leadership to shame it into supporting the abolition of IPPs, now at last in sight.

PS:  For more detail of the monstrous defects of IPPs, please see earlier posts on this website here, here, here, here and here — including the comments on them and links in them to yet more articles on the subject.  And having read all that, have a very happy Christmas.

Brian

Sure enough, that’s all the Chancellor of the Exchequer, George Osborne, can think of to get the economy moving.  Meanwhile the numbers of the unemployed, thanks to the remorseless cuts,  keeps growing, costing the government more and more in unemployment benefit, housing benefit for those who lose their homes as well as their jobs, and costs to the NHS, and reducing the government’s tax take, thus increasing the budget deficit and the need for more, not less, government borrowing.  Trouble at the Eurozone mill further aggravates the problem, although it manifestly didn’t cause it.

The truth, unpalatable as it may be to the Tories and embarrassing to their LibDem partners (some of whom may be presumed to know better: eh, Vince?), is that the root of the problem is lack of aggregate demand in the economy.  Too many people haven’t got enough money, and they are mostly getting worse off all the time. Not enough households or firms are spending or planning to spend enough money on goods and services to justify businesses in investing to produce more of either, or, therefore, to risk borrowing money for that investment.  Demand is so flat that business perfectly logically lays off its staff instead of recruiting new employees, thus further depressing demand as more of those made redundant join the dole queues.  The main reason for the banks’ failure to lend more for business expansion and start-ups is that business is unwilling, quite rationally, to risk taking out expensive or even cheap loans when there’s so little prospect of selling more goods and earning enough additional money to service and eventually repay the debt.  Pumping more and more money into the banks is not just irrelevant: it’s stupid, when the same money could be put to so much better use.

The government should be lavishing additional money on those who can be relied on to spend all of it, and at once.  These are not bankers and businessmen, who will save most of it, much of it in off-shore tax havens or on investments in the economically expanding countries of Asia and Latin America.  Those who would spend every extra penny here are the unemployed and the chronically sick, living on minimal and yet still shrinking benefits; pensioners whose pensions have been hit by the recession and cuts; those scraping by on the minimum wage;  and others on low incomes hit by 5% inflation and the savage increase in VAT: adding up to constant reductions in their living standards in real terms and the constant fear of redundancy which deters them from spending what money they have on anything but absolute essentials.   All these groups can be trusted to go out and spend every extra penny they get, thus raising levels of demand and restoring the confidence of business in the likely profitability of borrowing to invest and to employ more workers – giving a push to the now stalled virtuous circle.

So what does our dogged coalition government do to put more money in the pockets of the would-be spenders?  It raises VAT by a swingeing 2.5%;  it sacks huge numbers of public service workers, adding to unemployment and slashing their spending power (as well as ceasing to receive their taxes);  it systematically decimates social service benefits just when they are more than ever needed, and thus further flattens demand in the economy;  it sanctions more and more printing of money to bolster the banks (which don’t need it when demand is flat), thus adding to inflation and reducing the spending power of the whole population;  and it stubbornly goes on wasting billions of pounds on foreign military adventures and occupations in Afghanistan and Libya (and seemingly does some hopeful planning for more of the same in Iran).  It spends more billions on a nuclear weapon capability which is neither independent nor a deterrent and on ego trips such as the Olympic Games which will make whole areas of our country virtually uninhabitable by the natives for months at a time. It persists in wasting money on keeping tens of thousands of people in bursting prisons who ought not to be there and who could be more beneficially dealt with at a fraction of the cost in the community, all because of a cowardly terror of being labelled “soft on crime”.  All this squandered money could perfectly well be diverted into sharp reductions in taxation of the low-paid, in halving or even suspending VAT and employees’ National Insurance contributions, making special Recession Compensation payments of £200, £300 or more each to all unwaged with an income of less than (say) £15,000 a year, and just about any other kind of hand-out to the wannabe spenders in our unequal society.  It would actually be more sensible to drop bundles of five-pound notes from helicopters over the shopping malls and sink housing estates of our major cities than to go on shelling out millions a month on new unneeded aircraft carriers, drones, fighter-bombers and tank landing craft, and on generals, admirals and air marshals who in a sane world would have nothing to do, and who in most cases have nothing to do anyway, even in the insane world that we and they inhabit

The absurdity of loading the banks with money and then trying to bully them into lending it to those exalted ‘small businesses’ which were supposed to replace the public sector as the engine of expansion and growth is vividly illustrated by an inconspicuous article in the Financial Times of 26-27 November.  It begins:

Banks under constant fire for failing to lend to small business often complain that there are not enough suitable candidates, and a survey indicates they might have a point. The poll of 155 individuals taken during November’s Global Entrepreneurship week found a fifth of recent start-ups and 16 per cent of those aiming to launch a company did not intend to write a business plan and many did not understand basic concepts such as gross profit and turnover.

The poll shows that many would-be entrepreneurs had no understanding of such basic concepts as gross profit (47 per cent), turnover (31 per cent), margin (19 per cent) or even cash flow (16 per cent). Only 30 per cent could define all four.  Only just over half of those surveyed knew that the VAT threshold was £73,000, and 23 per cent couldn’t define VAT taxable turnover. (The article observes that failure to manage VAT, paid in arrears, is a big cause of cash flow problems and business failures.)  And these are the buffoons to whom Mr Osborne wants the banks to lend our money, or to lend the money we have given the banks with our guarantee, when not only a hefty minority of them are clearly incapable of setting up and managing a whelk stall, but also when there are so many people out there made unemployed by government policies that no-one can afford to buy whelks anyway, even from the most brilliantly funded and managed whelk stall.

The only possible explanation for this blindly obstinate pursuit of doomed, counter-productive and wrong-headed policies by the Tory-led coalition government is ideology. The global, or western world’s, financial crisis and credit crunch provide an unmissable opportunity to dismantle a welfare state that has never been loved by free market fundamentalists and apostles of unbridled capitalism.  For a Tory ideologue, anything smelling of redistribution is a no-no.  It goes against the grain to dish out money to the poor, beyond what is absolutely necessary to keep them from starving, on the principle that the only way to make the working class work is to force them into jobs by the threat of dismissal and penury, thus curing them of the deadly disease of ‘benefit dependency’, even when the jobs simply aren’t there. Conversely, in the traditional Tory book the best way to induce the bankers and the business-owning and  –managing classes to expand their activities is to bribe them with money from the taxes raised from those less fortunate than themselves, ‘subsidy dependency’ bearing no resemblance at all to dependence on state benefits.  Well, you’ve tried that now, George, and it’s only made matters worse.  Why not give the other thing a try?  You could start by suspending VAT, and call it Plan A+.

Brian

Letters:  Salmond’s ‘devo max’ option is a camouflage device

From Sir Brian Barder.

Sir, You are surely unnecessarily alarmed by the Scottish first minister’s “shrewd” decision to include “devo max” (full fiscal autonomy within the UK) as an alternative to full independence for Scotland in the forthcoming referendum (“The ties that bind”, editorial October 29). Far from that being a trap, as you warn, it’s likelier to reflect Alex Salmond’s judgment that he’s unlikely to get a majority for independence in 2014 or 2015, with the devo max option a device to camouflage a humiliating defeat for independence.

“Full fiscal autonomy” for Scotland could describe a multitude of possible arrangements, none of which needs to frighten those of us who hate the idea of the amputation of Scotland and the disintegration of our country. Why should Scotland have any less internal self-government than, say, California or New South Wales? If the completion of the stalled devolution process for Scotland prompted demands for similar benefits for England, Wales and Northern Ireland, so much the better: the UK could then establish the safeguards and institutions of a full federation.

Brian Barder, London SW18, UK

Copyright The Financial Times Limited 2011.

In addition to these palliatives I have decided to take a month off from the computer keyboard, to give the fingers and wrists a rest.  I’ll read my emails once a day, but not reply to them.  No more emails from me, no more blog posts or responses to your and others’ comments, until December at the earliest.  If you urgently need a reply from me on some immediate issue, let me know by email, text or telephone and I’ll use Skype either to telephone you back or, ideally, to Skype you (loud bangs and unprotected ears during my national service in the army half a century ago pretty much prevent me from hearing anything useful on my ordinary telephone now).  My Skype name is bbarder, but I shan’t be online much for the next month apart from reading emails and occasionally Skyping.

No doubt many of you will welcome a rest from my messages and posts as much as I’m looking forward to a chance to read some of the books long awaiting my attention on the bookshelves and in my Kindle.

I hope to be back in time to wish you a happy Christmas.  Meanwhile, as they say over the loudspeakers, thank you for your attention.  And please don’t respond to this with messages of sympathy:  I’ll take those as read, and anyway it’s not that bad!

All the best
Brian

“The most important of the new measures announced by the Justice Secretary is the welcome decision to replace Indeterminate Sentences for Public Protection (IPPs) by tough fixed-term sentences for the most serious offences.  This should help significantly to reduce the excessively large prison population, of which more than 6,000 are currently serving IPPs, over 3,500 of them having already served their tariffs (the part of their sentences set for punishment).  I welcome Ken Clarke’s assurance that only some 20 of those 6,000 IPPs would have qualified for the new mandatory life sentences for very serious sexual and violent crimes.  Labour has serious reservations about introducing mandatory life sentences for crimes other than murder, as the government now proposes: we think judges, not politicians, should decide each sentence in the light of the circumstances of each case;  but Ken Clarke has promised that ‘Judges would retain the discretion not to impose a mandatory sentence if it would be unjust to do so’, which should preserve reasonable flexibility.  Mandatory life sentences will apply only to cases where an offender has twice been convicted of a serious offence attracting a sentence of at least 10 years on each occasion, so in practice the addition to the prison population resulting from this measure should be small.

“We especially welcome the proposal for a four-month mandatory prison sentence for aggravated knife possession for 16 and 17-year-olds, but not for younger children. Those convicted of ‘using a knife or offensive weapon to threaten and endanger’ are to be given a four-month detention and training order, two months in a young offenders institution and the rest undergoing training in the community.  Adults will receive an automatic six-month sentence for the same offence.  This should help to meet widespread concern about the menace of knife crime.

“Our concern until now that if IPPs are abolished, prisoners will be released while still a threat to our security, is adequately allayed by the promise of longer sentences for the most serious offences, allowing more time for reform and rehabilitation, and by the decision that serious offenders will not become eligible to apply for release on licence or parole until they have served two-thirds of their sentences, instead of the current half-way mark.

“It is a sorry indictment of the coalition government that these generally positive reforms have been so long delayed by widely reported opposition to them within the Cabinet and no doubt also from the unregenerate ranks of reactionary Tory back benchers.  If the Liberal Democrats in the coalition, with their claims to be the champions of liberal reform, have been supporting the Justice Secretary against his right-wing critics in the long drawn-out argument over these reforms, we have yet to hear of it.  It is not only over Europe that both the Conservative party and the government are split from top to bottom, with their Lib Dem allies standing helplessly on the touchline.”

Unfortunately, however, I have little confidence that Ed Miliband or Sadiq Khan will take anything like such a positive line in response to Ken Clarke’s reform programme.  Labour is apparently still trapped in the retrograde, pathologically risk-averse mind-set of successive New Labour home secretaries on the subject of prisons, crime and punishment.  It’s time to return to Labour’s liberal reformist roots.  How bizarre that it’s a Tory Secretary of State for Justice who is blazing the trail!

Update (pm 27 Oct 11):  The Justice Secretary was quoted on the Daily Politics programme today as having said he would be consulting about the idea of making it easier for Parole Boards to “let out” those serving the Indeterminate Sentences that he’s getting rid of.  You can hear the relevant words here, beginning at 18’50″.  This is the first reference I have seen or heard in the interviews and media coverage since Mr Clarke’s proposals were published last night to their implications for existing IPP prisoners.  It’s encouraging, as far as it goes.  But it will be controversial.

Brian

David Hanson, Labour MP for Delyn, who was a minister of state for Justice in the Labour government, asked a question in today’s Prime Minister’s Questions demanding that the prime minister drop the Justice Secretary’s proposal to abolish “Labour’s” IPPS, on the grounds that they were necessary to keep dangerous criminals off the street.  David Cameron replied that there would shortly be an announcement by the Justice Secretary.  IPPs were a failed system which didn’t work and was not widely understood.  They would be replaced by tough determinate sentences which would keep dangerous criminals off the street; and the government would end the current system whereby dangerous criminals were being released half-way through their sentences. This would be generally welcomed.  (You can hear the question and answer at http://www.bbc.co.uk/iplayer/episode/b016lrw2/Prime_Ministers_Questions_26_10_2011/
– beginning at 21’36″.)

This seems to be the firmest commitment so far, given by the prime minister himself, to the ending of IPPs, and it must be irreversible.  There are other signs that the announcement by the MoJ is imminent.  I have commented on the Emmersons Solicitors IPP campaign Facebook page –

Let’s hope that the determinate sentences which are to replace IPPs won’t be mandatory, unduly savage, or applied to any but the most serious violent offences. But if IPPs are really to go, that will be a huge gain. I doubt if the MoJ announcement will deal with the question of existing IPPs, but it will be very surprising if there’s no action soon to simplify and speed up the procedures for dealing with post-tariff IPPs even if there’s no public announcement about it.

Tragically, the terms of the question to the prime minister by David Hanson (presumably inspired by the Labour leadership) and of the latest statement by the Labour shadow Justice Secretary, Sadiq Khan, appear to commit Labour pretty firmly to oppose the ending of IPPs.  This refusal, or inability, to acknowledge the injustice of IPPs, the misery they inflict on thousands of people who have either committed no offence or else have been punished for what they have done and paid their debt to society, the indefensible imposition of what amount to life sentences for offences for which a life sentence is manifestly and grotesquely excessive, and the disastrous practical effects of keeping thousands of IPP prisoners indefinitely in already over-crowded prisons, marks the definitive end of any hope of Labour abandoning the crudely illiberal attitude to penal policy reflected in the records of successive New Labour home secretaries.

In his first speech as Labour leader, Ed Miliband promised to change the Labour government’s often casual attitude to civil liberties.  That promise is now being spectacularly broken.  Labour MPs who obey their leaders’ instructions to vote against the ending of IPPs will bear a heavy responsibility.  How comfortable can they be with the company they will be keeping when they join forces with the most primitive of the hangers and floggers on the far right of the Conservative party in parliament and the country, and the most ignorant and unscrupulously populist of the tabloids and the reactionary broadsheets?  What a betrayal of the core principles of a once progressive and compassionate Labour party!

Let’s hope that the LibDems in parliament will steadfastly support this long overdue reform;  that there’ll be enough enlightened Labour rebels against their own front bench to ensure that the government’s proposals will be approved by parliament;  and that IPPs will soon be history.

Brian

For anyone who doesn’t read the Guardian, here’s my letter (printed exactly as submitted!):

Professor Curtice calls devolution “a one-way process that seemingly can have only one conclusion – breakup and separation” (Devolution’s slippery slope, 10 October). The first of your reports on Scotland (Scotland gets a choice of ‘independence lite’ in referendum, 10 October) similarly documents popular pressure for fuller autonomy for Wales and Northern Ireland and for full fiscal autonomy for Scotland, with the Scottish Lib Dems advocating “fiscal federalism for all parts of the UK”, not just Scotland; and you report UK MPs inexplicably alarmed by Alex Salmond‘s indications of willingness to consider full fiscal autonomy for Scotland within the UK as a possible referendum alternative to independence.

But it’s apparently taboo to mention either of the elephants in the room: how long England will passively watch the other three UK nations moving inexorably towards full internal self-government while England alone is denied its obvious benefits; and why those seeking a credible policy for saving the UK from disintegration still can’t see the obvious alternative to breakup, namely a full federation of the four UK nations – each eventually enjoying full internal self-government – with the Westminster parliament and government becoming the federal organs responsible for only those subjects that need to be managed on an all-UK basis. That, rather than disintegration, is the logical (and potentially most popular) culmination of the devolution process and, given some imaginative political leadership, one that could revolutionise the way we govern ourselves. There could be a rich reward for the first UK party leader to pick up this ball and run with it.
Brian Barder
London

In a typically shrewd commentary, the Guardian’s Michael White is one of very few commentators even to mention federation as a possible solution:

A federal British solution as part of a wider constitutional settlement including Lords, Commons and the voting system? That gets some Lib Dem support. But England’s dominance (52 million out of 62 million) makes it tricky.

But it’s precisely England’s dominance that makes a federal system necessary: full internal self-government plus equal representation in the federal second chamber (as in, for example, the US and Australia) would protect the three smaller UK nations from constant English interference in their affairs, a protection which partial and reluctant devolution fails to provide at present.

According to media reports, the Chancellor of the Exchequer, George Osborne, is intensely relaxed about the prospect of Scottish secession and the break-up of the UK, because it might mean a permanent Tory majority in what’s left of Britain.  There was a time when failure to defend one’s country’s integrity and survival constituted high treason, a capital crime.  In our more enlightened times, imprisonment for life without the possibility of parole would no doubt be a preferable alternative to beheading.  The prime minister, David Cameron, is said to be troubled by the threat of Scottish secession, not so much out of old-fashioned patriotism or concern for the welfare and interests of the people of the four UK nations, but because he doesn’t fancy going down in history as the prime minister who presided over the death of the United Kingdom.  Well, never mind his motives.  How is he going to head off Scottish secession?  None of our leaders seems to have a clue.  If Ed Miliband’s office doesn’t spot the opportunity, perhaps David Cameron’s press secretary will recommend that he has a look at today’s Guardian letters.  (Nick Clegg, too?)

Brian

So now is the moment for all liberal-minded people who recognise the indefensible injustice of IPPs to take urgent action to stiffen the government’s support for its own policy, and to encourage MPs to resist the inevitable clamour from the primitives on the Tory back benches and in the tabloids.  Please spare five or ten minutes to email or write a letter to your MP, especially if he or she is a LIbDem.  Here is a suggested form of words that you could either copy-and-paste into an email or letter, or else re-write in your own words:

IPPs: Suggested text of email or letter to your MP and other MPs

I am writing to you as my Member of Parliament to appeal for your support in Parliament for the earliest possible replacement of Indeterminate Sentences for Public Protection (IPPs), as envisaged by the Justice Secretary, the Rt Hon Kenneth Clarke QC MP.  There are well over six thousand people with IPPs locked up indefinitely in our badly overcrowded prisons who have no idea when, if ever, they can hope to be released. Of these, well over 3,500 have already served their ‘tariffs’ (the punishment part of their sentences), and their numbers are growing.  They remain incarcerated not as punishment for any offence they have committed but because the Parole Boards can’t be satisfied that if released they won’t reoffend, which is obviously impossible for a prisoner to prove.  Only a minuscule proportion of the thousands of offenders given IPP sentences have ever been released, even when the original offence may have been relatively minor.

This is a form of preventive detention such as we have never before seen in Britain in peace-time and rarely even in wartime.  It contributes significantly to over-crowding in our prisons and causes resentment of its obvious injustice which makes rehabilitation far more difficult.  The uncertainty over any hope of ever being released causes misery amounting almost to torture for the wives, husbands, partners, parents and children of those who have been subjected to this nightmarish punishment.  Replacing it with fairer determinate sentences would help to relieve prison over-crowding, greatly reduce the agonising uncertainties that inflict such misery and injustice on IPP prisoners and their families, save public money, reduce reoffending, and remove an ugly blot on our system of justice.

I would be grateful if you would pass this message to the Rt Hon Kenneth Clarke QC MP, Lord Chancellor and Secretary of State for Justice, for his comments, in the hope that he will take urgent action in accordance with his undertaking to include provision for the replacement of IPPs by determinate sentences in the Legal Aid, Sentencing and Punishment of Offenders Bill which is now going through Parliament.

_____________________

You can get the name and email and postal addresses of your MP by visiting http://www.theyworkforyou.com/mps/ or http://www.writetothem.com/, or very often by Googling the MP’s name.  Please remember to include your name and address so that your MP can see that you are one of his or her constituents.  Even if you have written to your MP in the past about this, please write again now, perhaps referring to your earlier message and any reply that you received then.

To make your appeal even more effective, please send a copy of it for information to The Rt Hon Nick Clegg MP – Leader of the Liberal Democrats, Deputy Prime Minister, Lord President of the Council and MP for Sheffield Hallam, email address:  leader@libdems.org.uk, or by post to The Rt Hon Nick Clegg MP, Leader of the Liberal Democrats, 4 Cowley Street, London SW1P 3NB.  In copying your message to Nick Clegg, please urge him to treat support for Kenneth Clarke’s proposal to replace IPPs as a non-negotiable condition for the LibDems remaining in the coalition government:  if the LibDems were to go along with a veto of this essential reform, they would lose all credibility as upholders of liberal principles.

You could also usefully copy your email or letter to the Labour Opposition’s shadow Justice Secretary, The Rt Hon Sadiq Khan MP, email address: sadiqkhanmp@parliament.uk, or by post to The Rt Hon Sadiq Khan MP, House of Commons, Westminster,  London SW1A 0AA. Alternatively email The Rt Hon Ed Miliband MP, milibande@parliament.uk, or write to The Rt Hon Ed Miliband MP, Leader of the Opposition, House of Commons, Westminster,  London SW1A 0AA. The Labour leadership has inexplicably been very lukewarm about Kenneth Clarke’s penal reform proposals, but you could point out to Ed Miliband or Sadiq Khan that there can be no possible justification for Labour not to support the replacement of IPPs against the likely opposition of illiberal right-wing elements with which Labour has nothing whatever in common.

If you have any doubts about the shocking injustice of indeterminate sentencess, please read the section on IPPs in an article by the barrister Philip Rule in the September issue of Inside Time, or any of the posts on the subject on this blog, such as here and here (including the comments appended to them, and my responses to the comments). There is also much useful information on the Facebook page of the Emmersons Solicitors’ campaign against IPPs, here.  (In response to recent comments on this blog I  suggested that it was a bad time to revive the campaign against IPPs at a time when Ken Clarke was embroiled in a controversy over the Human Rights Act and Theresa May’s cat, with the prime minister apparently backing Mrs May.  But the situation has changed completely in the last three or four days and it is absolutely essential to pile on the pressure now for IPPs to be replaced.)

Any day now the Justice Secretary, Kenneth Clarke, is expected to table an amendment to the Bill to include the replacement of IPPs along with his other sentencing reform proposals.  Here is an opportunity, not likely to be repeated, to do something concrete to influence events and to help to remove a monstrous blot on our criminal justice system.  Please take the time to act now, while there’s still time.

Update (14 Oct 2011): An MP who received a constituent’s letter based on the text suggested in my post (http://www.barder.com/3331) has replied rejecting two of its criticisms of IPPs as “false” (while accepting that there are other, legitimate, grounds for criticising IPPs such as failing to make available courses in prison whose completion is required before parole boards will consider release).

The MP’s first point of disagreement is that “The principle of detention until and unless the Parole Board is satisfied as to risk is not new and underpins the life tariff scheme that was introduced at the time of the abolition of the death penalty.” But it is no part of the case against IPPs that its tariff system is ‘new’, and its use with prisoners serving life sentences in no way justifies applying it to those who have by definition been sentenced for much less serious offences than those attracting a life sentence.  A life sentence is basically what it says: society’s judgement that the offence — such as murder, which carries a mandatory life sentence — is so grave that he who commits it must be imprisoned for the rest of his life.  In practice there may be varying numbers and kinds of extenuating circumstances surrounding each individual murder, and varying grounds for thinking the murderer likely or unlikely to commit another murder, and this is reflected in the tariff system which allows the offender, subject to certain conditions, to be released after a set number of years, although always subject to being recalled to prison if he breaches the terms of his release.  So for a lifer conditional release from prison before death is a privilege and an act of conditional clemency, not a right:  imprisonment for life remains the essence of the sentence.  (Whether it is right for parliament to force judges to impose a life sentence for every single murder, regardless of individual circumstances, is a completely different issue, unrelated to IPPs.)

IPP sentences are completely different.  The tariff set for an IPP represents the punishment element of the sentence.  Once the tariff (whose length reflects the degree of gravity of the original offence) has been served, the offender has been duly punished and has paid his debt to society.  The unique feature of the IPP is that even after having undergone his punishment, the IPP prisoner is still kept in prison, no longer as a punishment but because society is afraid that if released he might reoffend, and accordingly sets a series of quite unrealistic tests that have to be passed before the prisoner may be released.  He is no longer in prison as a punishment but purely in preventive detention.  What’s worse, the onus is on the prisoner to satisfy the parole board that if released, he won’t reoffend:  the parole board will automatically reject an application for release, even if there are no specific grounds for supposing that the prisoner will reoffend, unless the prisoner can satisfy the board that he won’t reoffend, which is an inherently impossible demand.  From the parole board’s point of view, agreeing to release an IPP prisoner is risky:  if they get it wrong, and the prisoner does reoffend after release, they will be blamed for their poor judgement;  whereas if they refuse to agree to his release, they can never be blamed, because no-one can ever know whether or not the prisoner would have reoffended if he had been released.  Hence the abnormally small number of IPP prisoners who have ever been released.  The presumption of innocence, even innocence of hypothetical future offences not yet committed, is denied to the IPP prisoner.  This is rank injustice, straight out of Alice in Wonderland, or Kafka, and it’s not in any way comparable with the tariff system for those serving life sentences.

The MP’s other criticism is to deny the assertion in the post’s draft letter that in some cases of IPPs “the original offence may have been relatively minor“. There’s one sure way to measure the seriousness of the offences that have attracted IPP sentences: namely, the length of the tariff.  The shorter the tariff, the less serious the offence in the eyes of the judge. According to Ministry of Justice figures, in March this year there were 1,550 IPP prisoners with tariffs of less than 2 years, and 3,200 equal to 4 years or less.  Only 50 — five zero — had tariffs of 10 years or more.  The average tariff length for IPPs imposed before the minimum tariff for an IPP was made longer (to stop IPPs being awarded for really trivial offences) was three years, and even after the change it was only four years.  Before the change in the law, people were being given IPPs with tariffs of just a few months, and nearly all of these are still in prison, in some cases three or more years after the end of their tariffs. As mentioned in my post, last March there were no fewer than 3,500 IPP prisoners who had served out their tariffs, having undergone their punishment, but were still in prison.  In the face of these figures, it’s impossible to deny that many IPPs are being awarded for “relatively minor” offences or to assert that IPPs are given only for really serious crimes.

As the MP’s reply acknowledges, the failure of the prison system to provide all IPP prisoners with rehabilitation courses whose completion parole boards demand as a condition for even considering an application for release is indeed one of the indictments of the whole IPP régime.  But it is by no means the most serious.  The whole thing is a denial of the most basic principles of justice.  It is intellectually and morally untenable.  It should go.

PS (24 Oct 2011): I have put some further relevant extracts from recent House of Commons notes and papers on my website: see http://bit.ly/nI572h.

Brian

His latest attack on Clarke and his reform programme appeared in Huffington Post Politics on 6 October.  Despairing of achieving anything by discreet private lobbying and argument, I finally went public with an exasperated comment on the Huffington website:

This is a seriously disappoint­ing article. Kenneth Clarke, the only establishe­d liberal Tory in the Cabinet, proposes reforms in penal policy that are urgently necessary, mostly to repair damage done by successive New Labour home secretarie­s, and which include sharply reducing prisoners’ numbers at a time when (as every penal reform expert agrees) up to half of the prison population shouldn’t be there; giving work to those who genuinely need to be imprisoned­; and replacing the monstrous system of Indetermin­ate Sentences for Public Protection (IPPs). Sadiq Khan, an excellent constituen­cy MP, opposes or carps at all these proposals. He misreprese­nts Clarke’s figure (3,000) for reducing the prison population as a target when it’s clearly an estimate, and attacks Clarke’s proposed abandonmen­t of the mindless New Labour plan to build yet more prisons. Sadiq denounces cuts in police numbers when he must know there’s no correlatio­n between front line police numbers and crime levels. He denounces Clarke’s acceptance of cuts in his department­al budget when he knows that such cuts would be unavoidabl­e under any government­, and many of them could be achieved by progressiv­e reforms.
At a time when Ken Clarke’s ministeria­l future is in jeopardy because of his public exposure of Theresa May’s dishonest demand for repeal of the Human Rights Act, Labour should be defending him and his liberal reform proposals against the assaults of reactionar­y Tory MPs and tabloids. If Clarke goes, all hope of progressiv­e penal reform goes with him. Please think again, Sadiq!

Progressive and humane penal reform policies were once a central element in Labour’s core values. A series of reactionary and illiberal New Labour home secretaries abandoned those principles, over-reacting to terrorism and tabloid demands for ever harsher punishments for offenders with a string of authoritarian measures that filled our prisons to bursting point, allowed re-offending to soar, and laid the foundations for authoritarian behaviour by the police and the security authorities, criminalising protest and introducing an indefensible (but little recognised) system of preventive detention that’s unprecedented in peacetime in the modern era.  Much of the present Justice Secretary’s reform programme is designed to repair some of this damage.  Sadiq Khan said, without a trace of irony, in his speech to the Labour party conference on 28 September this year:

I believe we should all worry that this Coalition Government threatens to undermine our hard work.

In his speech to the previous year’s Conference on 28 September 2010, immediately after his election to the Labour leadership, Ed Miliband famously promised to change the party’s direction, not only on Iraq but also on civil liberties and human rights:

[W]e must always remember that British liberties were hard fought and hard won over hundreds of years. We should always take the greatest care in protecting them. And too often we seemed casual about them.  Like the idea of locking someone away for 90 days – nearly three months in prison – without charging them with a crime.  Or the broad use of anti-terrorism measures for purposes for which they were not intended.  They just undermined the important things we did like CCTV and DNA testing [sic].  Protecting the public involves protecting all their freedoms.  I won’t let the Tories or the Liberals take ownership of the British tradition of liberty.  I want our party to reclaim that tradition.  …when Ken Clarke says we need to look at short sentences in prison because of high re-offending rates, I’m not going to say he’s soft on crime…

When is Ed Miliband going to remind his shadow Justice team of that seminal promise, which indeed Sadiq might well have drafted?  You will search Sadiq Khan’s Conference speech last month, and his Huffington Post article, in vain for any evidence that he remembers it.  Instead, in his own 2011 Conference speech, Sadiq saw fit to reopen the controversy over Clarke’s remarks about rape:

Remember his insensitive and offensive comments on rape?  On Radio 5Live, and in response to the statement “rape is rape, with respect?”  He said, and I quote: “No, it’s not”.  Mr Clarke, let me tell you rape is rape.

Ken Clarke’s ‘offence’ had been, you’ll remember, to point out the obvious truth that while all rapes are serious crimes, some are self-evidently more serious than others, a fact recognised in the wide variations in rape sentences as well as by common sense.  Either Sadiq doesn’t understand that, which seems unlikely in an experienced lawyer and former Chair of Liberty:  or he does, in which case….

By their unremitting and undiscriminating attacks on an enlightened and humane Tory Justice Secretary, the Labour front bench have made it easier for the prime minister to surrender to the cave-dwellers on the Tory back benches, to an unprincipled and populist home secretary, to the hangers-and-floggers in the country and their favourite tabloids, by sacking Clake from his job.  If the LibDems, both in and out of the coalition government, had been brave enough to make support for Clarke and his reform proposals a condition for continuing LibDem membership of the coalition, and if the Labour opposition had similarly been brave enough to honour Ed Miliband’s promise when he was elected leader, they would have hugely improved the chances of Ken Clarke surviving the current reactionary campaign against him and thus enhanced the chances of success for his reforms.  How sad and how ironical that in this major conflict, the shadow Justice Secretary has consistently positioned Labour well to the right of a Conservative minister and thus helped to jeopardise all hope of penal reform for a generation!

Full disclosure: Sadiq Khan is my MP, and one whom I both like and respect.  He’s an excellent, conscientious and hard-working constituency MP.  He has been patient with my stream of appeals and complaints and generous with his time in listening to them.  He knows, as I do, that my despair at the party leadership’s failure to abandon New Labour’s illiberal policies on law and order and civil liberties is widely shared  in the Labour party’s grass roots. As Ed Miliband’s leadership campaign manager and adviser, he will certainly not have forgotten that inspiring promise in Ed’s first speech as leader.  It’s hard to dismiss the suspicion that some of those who lumbered the party with such a dismal record on civil rights and liberty, the Straws and Blunketts and others, continue to exercise a baneful influence on the Labour front bench, mainly in a misguided attempt to defend their own records in office.  If so, it’s surely well beyond time for them to exercise restraint instead of influence.  Mr Miliband might usefully indicate to them that their time is past and that, in an echo of Attlee’s famous words to the then party Chairman, Harold Laski, a period of silence on their part would be welcome.

Brian

Last night’s Newsnight asked why “a single pound” of UK aid should go to an allegedly repressive Ethiopian régime which, it was claimed, manipulates our food aid for political advantage, won’t allow political opposition, crushes human rights, “hangs civilians”, commits “mass rapes”, and so forth.  The programme showed an interview recorded earlier in the day by Jeremy Paxman (for it was he) with the International Development Secretary, Andrew Mitchell, in New York, who very sensibly stressed the numbers of Ethiopian lives demonstrably saved by British aid and pointed out that none of our aid goes through the Ethiopian central government.  Mitchell said that the allegations of UK food aid being politically manipulated had been scrupulously investigated by British officials in Ethiopia but that they had found no evidence whatever of systemic food aid manipulation.  The effect of this was then ruined by Paxman’s gleeful announcement that after his interview with Mitchell, the Department for International Development (DfID, Mitchell’s own department) had issued “a clarification” to the effect that the British investigating officials had not gone out to visit the areas where the alleged manipulations were said to have taken place but had conducted their investigations from their desks in Addis Ababa.  Cue triumphant sneer on face of Paxman. [But now see update, dated 29 September, below.]

In both programmes Newsnight simply took it for granted that UK aid of any sort should be withheld from any country with an undemocratic government or a poor human rights record.  Perhaps regrettably, Mitchell didn’t challenge this disreputable implied proposition, repeatedly emphasising his insistence that all such serious allegations must be and were scrupulously investigated (thus implying acceptance of the feather-brained “no human rights, no aid” thesis), with the DfID ‘clarification’ used by Paxman to suggest that Mitchell’s officials’ ‘investigations’ were worthless.

Such unsubstantiated and misleading attacks on a major British country aid programme are bound to undermine public confidence in UK aid generally, as well as strengthening discontent about the ring-fencing of the aid programme from Coalition cuts. It would be nice to think that a suitably senior BBC executive could be challenged about this unbalanced, sub-standard, biliously anti-Ethiopian material, now broadcast on respected BBC channels on three separate occasions in just a few months, in which unsupported allegations are represented as ‘revelations’:  non-sequiturs are extrapolated from shaky or unsubstantiated evidence:  there is no discussion or even recognition of the potential consequences of the implied and profoundly mistaken doctrine that aid should be denied to countries with repressive or illiberal governments:  aggressive interrogation never allows the other side to have a fair chance to state its case:  and the implications for public support of overseas development aid are potentially so dire.  That such wretched stuff should go out with the cachet of the BBC’s reputation for fairness, balance and reliability is a mystery that surely calls for enquiry and explanation.

Post-script: the ‘Bureau of Investigative Journalism’ , which produced the film with and for Newsnight, has posted on its website a predictably tendentious account of its ‘investigation’ and of the Paxman interview with Andrew Mitchell.  This, unsurprisingly, is just as fundamentally flawed as the material broadcast in Newsnight, and in my view it’s open to the same criticisms.

Update (29 September 2011):  An important clarification and correction of the position of the Department for International Development (DfID) was broadcast by the BBC’s flagship Newsnight at the end of its programme on 23 September.  The DfID statement read:

The Department for International Development has confirmed that, as Secretary of State Andrew Mitchell made clear on Wednesday’s programme, DFID officials in Ethiopia did make regular field visits to look into the allegations of aid distortion.
“Those field visits — and dozens of similar visits by other donor agencies — made clear that there was no systemic distortion for political reasons in the distribution of aid.

It’s good to have this on the record.  The earlier DfID statement, read out with such relish by Jeremy Paxman at the end of the Newsnight programme two nights earlier, on 21 September, had left viewers with the unfortunate impression, not only that DfID aid and development staff based in Addis Ababa never ventured outside the walls of the safe and comfortable British Embassy compound there, but also that, in consequence, their ‘investigation’ of allegations of political distortion by the Ethiopian government of the distribution of UK food aid in remote areas of Ethiopia far from Addis Ababa can’t have been worth much.  It’s not clear, anyway to me, why DfID’s earlier statement gave such a damaging and inaccurate impression — unless Jeremy Paxman’s summary of it on 21 September was a distortion of what the full DfID text had said. If so, DfID has a strong case for complaint.

The sad truth is, however, that few Newsnight viewers hearing the subsequent DfID clarification (quoted above) will have remembered the Ethiopia segment in the programme of two nights earlier in enough detail to realise its significance.  The entirely false impression of DfID bureaucrats ‘investigating’ the misuse of UK aid out in the countryside from the comfort of their offices in Addis Ababa will inevitably, like the melody, linger on, as will all the other unsupported allegations against the Ethiopian government, cheerfully represented as established fact by Newsnight and the makers of its film.

Brian

Professor Bogdanor, our leading constitutional expert, has recently dismembered Mr Clegg’s proposals for reform of the Lords in an article in The Times (protected by a paywall), but concluded that the present House of Lords was doing little harm and might do some good, so it was best to leave it alone — an argument against reform of any kind used by conservatives down the ages.  I offered my federal-type alternative in a letter published in The Times on 29 August 2011:

Sir, Professor Bogdanor (“100 years on, the Lords is doing fine as it is”, Opinion, Aug 18) is surely wrong to argue from the obvious unacceptability of the government’s proposals for House of Lords reform that we’re therefore permanently stuck with this anachronistic, undemocratic body.  The Professor asks how, “in a non-federal state”, voters can be represented in two differently elected chambers. But in a recent book he has himself described our post-devolution constitution as “quasi-federal”, and the experience of many federal democracies suggests a valuable role for an elected second chamber representing the UK’s four nations.

As in, for example,  the US and Australia, each nation should have equal representation in a federal-style Senate, with (say) 20 Senators elected from each: 80 in total should be quite enough — the Americans manage with 100 — compared with the present 831 members of the Lords.  House of Commons primacy would be safeguarded by the Senate’s strictly limited powers (as now) and by the Commons’ role as the sole maker of governments and home of ministers. Equal Senate representation would help to limit England’s predominance, long a source of anomalies and discontent.  A federal-type Senate would encourage resumed progress towards the inevitable, and highly desirable, eventual destination of a fully federal UK, providing the only durable answer to the West Lothian Question and other anomalies arising from half-completed devolution, and the best chance of saving our country from disintegration as a result of Scottish secession.

I had offered the same proposal in a letter in the Guardian only two months or so earlier, and reproduced it in a blog post at the time (“The need for a federal senate instead of the house of lords“, 7 June).  In that post, and in responses to some of the comments appended to it, I argued the case both for a federal-style Senate instead of the House of Lords and also for a federal United Kingdom as the logical destination of the process of devolution on which we have embarked, but which is now stalled, despite the serious challenge to the status quo posed by the demand of the SNP government and parliamentary majority in Scotland for independence and the disintegration of the United Kingdom.  There’s no need to spell all that out again here now.

I should however issue just one clarification:  some of the comments on that earlier post, and two or three messages that I have received since the publication of my letters in the Guardian and The Times, have mistakenly supposed me to be recommending that the existing House of Commons should be converted into an English parliament, equivalent to the Scottish parliament, the Welsh Assembly, etc., while the House of Lords should become a single-chamber federal parliament, both bodies presumably continuing to sit in the Palace of Westminster.  This would in my view solve almost nothing and indeed would create new problems and fresh confusion.  The concept of a federal parliament in the whole of which all four UK nations would have equal numbers of representatives, irrespective of population size, would be obviously absurd:  it makes sense only in the context of a second chamber (like the US Senate) where the other chamber is elected on the basis of population size, either more or less exactly as under Proportional Representation (PR), or roughly as in the UK House of Commons and the US House of Representatives.

A UK federation certainly does require an English parliament:  we can’t go on indefinitely with the nonsense of a Westminster parliament elected (or, in the case of the House of Lords, appointed, God help us) and constituted as a parliament for the whole of the United Kingdom, but simultaneously functioning in its spare time as a parliament for England (without anything remotely resembling an English government to accompany it).  The fact that most English people blithely assume that the parliament at Westminster, with members elected to it from Scotland, Wales and Northern Ireland, is nevertheless at heart an English parliament, only adds further confusion and resentment to the hopeless muddle we are currently in.  If and when we wake up to the need for a proper federal system, a new parliament — and, just as important, a new government — will have to be established in and for England, concerned purely with English internal affairs.  It’s unlikely to be situated in London, for that would risk continuing confusion between the English parliament and government on the one hand, and their federal all-UK counterparts at Westminster on the other.  It would also fail to satisfy the strong feelings in some regions of England that London is too far away and too London-centric to understand or cater for their needs.   The Westminster parliament and government would continue to be responsible for those all-UK matters which the four nations will have agreed should be handled centrally and uniformly – principally foreign affairs, defence, external trade, and some (but not all) kinds of taxation.

But there’s no reason for us to have to wait for these changes to be agreed and brought into operation — that will take many years.  We can replace the obviously undesirable House of Lords with a federal-type Senate, if not tomorrow, then as soon as the necessary legislation can be prepared and passed, if necessary using the Parliament Act to force it through a probably recalcitrant House of Lords.  It would be a huge improvement in our constitutional arrangements: it would signal a willingness on the part of England not to use its disproportionate size and wealth to the detriment of the three smaller nations or in a way that involves constantly interfering in their internal affairs:  it would improve the ability of the second chamber, with its new democratic credentials as an elected House, to hold the government to account, despite its iron control of the House of Commons:  and it would symbolise our country’s quasi-federal status, reminding Professor Bogdanor and others that the devolution process is only half completed.  There’s more work to be done.

Post-script:  Ephems is going on holiday now for the next three weeks or so, with only sporadic and partial access to the internet.  So there will be no responses to comments for a while.  Some of the questions and objections that this post is likely to prompt are already answered, e.g. in the June post mentioned earlier, especially in responses to comments there.  These still hold good, in my opinion anyway.  Others will just have to hang in the ether:  I don’t promise, or even intend, to deal with them all, or any of them, on my return.  Those posting comments in Ephems for the first time, or the first time for a year or two, may have to wait longer than usual for their comments to be ‘approved’ for publication in this blog.  For any such delays I apologise.

And now to finish the packing.

Brian

It is a relief that the present Government has been far more robust in its approach to Libya. David Cameron, in particular, is entitled to credit for taking the lead in calling for international action and ensuring that the RAF has been one of the lead participants in the successful Nato action. Nato forces will be needed for a few more days but it is certain that they will be able to declare their mission accomplished in the near future.

Whichever sub-editor on the London Evening Standard wrote the heading of another article, by the American academic historian and diplomat Professor Philip Bobbitt, went one better, with the chilling words:

Libya shows the way the West can now intervene

– although Bobbitt’s enthusiasm for western intervention in the affairs of second and  third world states was somewhat more tempered than his sub-editor’s effort suggested:

Above all, will the publics of the Nato countries see events in Libya as validating preclusive interventions, when the experience in Iraq has convinced them that intervention is too costly, too bloody, and too lawless?

Still, Bobbitt’s article celebrated what he portrayed as an exciting new precedent for the UN Security Council to authorise western military action anywhere in the world where some disaster seemed likely to happen unless action was taken to stop it, a hair-raising doctrine that the professor christened ‘precursive intervention’ (a wonderful example of a scholarly high-falutin’ term designed to sterilise a brutal and bloody reality).

Dismayed by these arguments for repeating the Libyan adventure all over the place in the future, I wrote a dissenting letter to the Evening Standard, which duly published most of the first part of it on 24 August.  I had written:

Sir, In 2004 I was one of 52 former British ambassadors and high commissioners who signed a letter to the then prime minister strongly criticising many aspects of our government’s role in Iraq. The Iraq and Libyan situations are different in many ways but similar in others, such as the West’s reckless defiance, in both cases, of the UN Charter. The attack on Iraq was never authorised by the UN Security Council. Our initial military intervention in Libya was authorised by UN resolution 1973, but we ignored that resolution’s primary demand for an immediate cease-fire, and its requirement that outside military force should be used only to protect civilians.  After intervening to protect Benghazi, we brazenly supported the rebels militarily to bring about régime change, contrary to resolution 1973 and international law.

As in Iraq, by our intervention in Libya we have assumed a potentially expensive responsibility to help sort out the post-civil-war mess, probably including sending ground troops to maintain security.  Any Libyan government we help to create will risk being regarded throughout the middle east as a western puppet.  Even if western military intervention for a limited purpose was justified, Britain had no obligation to participate, given our disproportionate role in Afghanistan and our parlous budgetary situation.  We can’t afford our libraries but apparently we can afford to spend millions on bombing and rocketing a small country in the middle east which posed no threat to us.  A former Foreign Secretary, Sir Malcolm Rifkind’s, praise of David Cameron for rushing us into this costly and unnecessary adventure is incomprehensible.

Professor Bobbitt sees the NATO action as setting a useful precedent under a new doctrine of ‘preclusive intervention’, asserting that the Security Council broke new ground by authorising force when no other state was threatened by Libya: but that overlooks the Security Council’s formal finding that the Libyan situation constituted “a threat to international peace and security”, and the Charter recognises no such thing as a right of preclusive intervention.  Our involvement is by no means over and we shall come to regret ever taking on this open-ended commitment.

I wonder when our senior civil servants and diplomats, our air marshals and generals, will discover the intestinal fortitude to say to their naïve glory-seeking ministers:

“Sir, There are persuasive arguments for a western military operation to forestall the human catastrophe which you foresee, but there is nothing in the UN Charter (which constitutes international law on the use of force in international affairs and with which we are legally required to comply) that would permit the Security Council to authorise a military attack of the kind you envisage:  so anyone who launched such an attack in the circumstances and for the purposes that you describe would be committing the crime of aggression, and liable to prosecution in the International Criminal Court.

“Furthermore, even if the Security Council were to authorise such military action, there is no reason why Britain should take part in it, and many compelling reasons why we should not.  We have played a major role in Iraq and Afghanistan, second only to the Americans, and unmatched by any of our EU or other partners.  We are imposing on our own population unprecedented cuts in vital social services on which the poorest and most vulnerable in our society depend, in order to reduce a budget deficit for which ordinary British people are not responsible:  to embark now on a military adventure certain to cost many millions of pounds would be wildly irresponsible in present financial circumstances.

“It’s anyway far from certain that the political and social objectives for Tsetseland which you wish to achieve can be achieved by military force: and even if they were, our participation in the attack would impose on us an obligation to help financially and in other ways with a costly process of post-war reconstruction which could go on for decades, over which we would have no control and which we could not afford.

“Finally, you, the relevant government ministers, have very sensibly approved cuts in the UK defence budget which reflect a more realistic appreciation of Britain’s place in the world but which will make it impossible for us to arm and equip our soldiers, seamen and airmen adequately for an operation on the scale that would be required, to reinforce them if necessary, to rotate them to allow adequate rest and recovery, to take care of the wounded and of the families of those who may be killed, and at the same time to continue to fulfil our military commitments elsewhere in the world, including at home.  Against this background, we are bound to tell you that our armed forces are in no position to undertake the kind of military action which you envisage.  If you want a purely symbolic British contribution to this operation, and provided that it is properly and unambiguously authorised by the UN in accordance with our Charter obligations, we could probably find the money for a small team of communications experts and an ambulance unit.”

Brian

It’s worth noting that the original article in New York Magazine (of which Rich is now Editor-at-large) is headed “Obama’s Original Sin”, which seems a poor summary of the article’s thrust, while the Observer has seen fit to re-title it “Obama: the betrayal”, which in my view badly misrepresents it.  Rich’s concluding paragraphs give something of the flavour:

“A nation cannot prosper long when it favors only the prosperous,” Obama declared at his inauguration. What he said on that bright January morning is no less true or stirring now. For all his failings since, he is the only one who can make this case. There’s nothing but his own passivity to stop him from doing so—and from shaking up the administration team that, well beyond the halfway-out-the-door Geithner and his Treasury Department, has showered too many favors on the prosperous. This will mean turning on his own cadre of the liberal elite. But it’s essential if he is to call the bluff of a fake man-of-the-people like Romney. To differentiate himself from the discredited Establishment, he will have to mount the fight he has ducked for the past three years.

The alternative is a failure of historic proportions. Those who gamed the economy to near devastation—so much so that the nation turned to an untried young leader in desperation and in hope—would once again inherit the Earth. Unless and until there’s a purging of the crimes that brought our president to his unlikely Inauguration Day, much more in America than the second term of his administration will be at stake.

There are of course many significant differences between the problems facing the US and those facing the UK.  One is that the US administration is headed by a liberal Democrat who came to power on a tide of reformist enthusiasm but whose performance in office has disappointed many of the voters who helped to sweep him into the White House, whereas the British government is headed by a Conservative prime minister and chancellor of the exchequer whose positions towards the far right-hand end of the political spectrum are increasingly apparent.  Another major difference is that the President’s ability to carry out the policies he himself favours is gravely circumscribed by a majority in the lower House of the Congress largely composed of economically illiterate and politically irresponsible Republicans, whereas our prime minister’s power to impose whatever policies he likes is virtually unlimited (his junior coalition partner can block him only by committing political suicide, and he has almost total control of parliament).  As a result, potentially disastrous policies are being imposed on both countries by a right wing party in hock to big business and the bankers, fixated on deficit reduction at whatever cost, despite the appalling risk of a second and even deeper recession.  In both countries a desperately needed policy of renewed stimulus by central government to revive aggregate demand in the economy, to tackle unemployment and accelerate growth, is blocked in Washington by ideologically blinded Republicans and rejected in Britain by the governing party in its historic role as the political wing of the City, beholden to the bankers, the company directors and the retired army Majors, most of whom seem to think that Keynes was Milton’s surname and rhymes with beans.  Our situation in the UK is perhaps marginally even worse than that in the US:  until and unless Ed Miliband grows into the role that history demands of him, we don’t even have a Barack Obama, warts and all.

Brian

A more general consequence will be the huge cost of financial and other support for those who have lost their livelihoods, been made homeless, or been injured, by the indiscriminate violence and the looting and torching of shops, businesses and homes.  Huge insurance pay-outs will lead to overall increases in premiums, which will necessarily be passed on eventually in higher prices for everyone. Inescapable government expenditure on sustaining the homeless and those whose jobs have been destroyed, as well as contributing to the cost of re-building gutted premises, will inevitably add to the budget deficit, paid for ultimately from increased taxation or, more likely, yet more cuts in other social services.  The level of household demand in the economy, already so low that it’s paralysing the country’s recovery from recession, will be further reduced by the loss of people’s livelihoods and resulting destruction of their spending power.  The off-setting stimulus provided by rebuilding activity and the jobs it will create will be temporary and short-lived, as the Japanese experience after the floods and tsunami has demonstrated.  On the plus side, the manifest need for generous government support of the victims of the looting and destruction may help to discredit once again the neo-liberal lie that central government expenditure is the problem, not the solution.  The further stimulus to the recovery of demand and return to growth in the economy that only fresh medium- and long-term government spending can provide might even gain general support, now that ministers are forced to acknowledge the government’s responsibility for helping the victims of the riots.  Even our pig-headed Chancellor will be hard put to it to avoid some bumping up of public expenditure in these saddest of circumstances.

Analysis of the underlying causes of the riots in the left-of-centre media has been generally predictable.  What many commentators have described as the root causes of the class conflict (I use the term advisedly) that we have been witnessing in this past week are mostly so obvious as hardly to be worth stating.  It’s hard to restrain one’s anger with a governing class that has ruled us for the last three decades largely in the interests of the rich and privileged, imposing on us an economic and financial system based on a self-interested, intellectually disreputable, discredited and indefensible ideology, recklessly dismantling, step by step, the unifying social contract, evolved during the second world war and the first few decades after it, which during all that time was almost universally accepted at all levels of society as palpably fair.  It was Mrs Thatcher, with her simple-minded dogmas and petty provincial values, who began the work of destruction – to the despair not only of Labour and Liberal progressives but also of committed Conservatives like Edward Heath, Michael Heseltine, Lord Carrington and Harold Macmillan.

After the Thatcher-Major years, the Blair-Brown government had notable achievements to its credit in rescuing large parts of the welfare state and social services from the depredations and neglect of its Tory predecessors, but in other areas it continued Thatcherite policies of neoliberalism, further dismantling almost all democratic restraints on the financial and business sectors, ignoring the growing mountain of private debt, continuing to privatise essential public utilities, relying increasingly for government revenue on the grotesque profits of the financial sector at the expense of declining industry, and explicitly indifferent to the resulting increase in gross inequality in society and the social consequences that have increasingly flowed from it.  A succession of reactionary New Labour and Tory home secretaries have exploited international terrorism in order to justify more and more draconian measures of repression designed to keep the lid on the inevitable anger and frustration of a larger and larger under-class, augmented by immigration, degraded by the breakdown of the family and of enlightened education and by unscrupulous profit-driven tabloids, and ruthlessly exploited by a greedy and unprincipled private sector indifferent to the public interest and focused exclusively on short-term shareholder value. The international banking failure and resulting global recession have given our current political masters a further pretext for winding down what remain of our social services, making the poorest and most vulnerable of our citizens pay the price of the greed and antisocial antics of the investment bankers and businessmen.  The justified sense of injustice has been sharply aggravated by the recent evidence of the continuing antisocial greed of the bankers and other rich tax-dodgers, the scandal of MPs’ expenses, the revelation of industrial-scale law-breaking by the media and the collusive bribery of the police.

I’m not suggesting that every thief or thug out on our streets on recent nights has been acting in protest or even in knowledge of these scandals: only that the discrediting of such a broad swath of the ruling classes has created a palpable atmosphere in which even once respected members of society have been shown to be shamelessly grabbing what they can for themselves, inevitably prompting the question: if they can do it, why can’t I?  Now the riots, looting and arson of the last few days are providing yet another pretext for still more repressive measures against the victims of the crude class warfare which has been shamelessly waged against them throughout the time in which most of them have been alive.

Yesterday I spent some hours listening appalled to the debate on the riots in the house of commons, specially recalled for the purpose from its holidays on the Mediterranean beaches and in the North American mountains.  Tory after Tory, including David Cameron with reckless clarity, declared that poverty, unemployment, the abolition or curtailment of even basic welfare payments, rotten and inadequate housing and schools, the lack of hope or opportunity, or any of the other desperate deprivations that we, the rich, have visited on our fellow-citizens, couldn’t “excuse” the criminality that we have been experiencing on our streets.  It shouldn’t need saying that absolutely no-one, not even the most rabid letter-writer to the Guardian, has suggested for a moment that these grim conditions “excuse” crime.  Deliberately confusing the definition of contributory causes with ‘excuses’ is a cheap and discreditable trick.  But those who see only criminality in what has been happening, and who can’t imagine doing anything about it beyond increased savagery in sentencing and punishment, should have no place in public life.  Unfortunately that applies to a sizeable number of those who govern us, on both sides of the political fence.

Rioting and criminality by some members of an oppressed and neglected under-class are nothing new.  I was living and working in New York at the time of the riots that followed the assassinations of Martin Luther King and Robert Kennedy, both justly regarded as champions and eloquent voices for the dispossessed (it’s still legitimate to ask oneself cui bono?  who benefited from silencing them?).  I remember the great satirist Mort Sahl remarking with brutal irony at that time on the spectacle of thousands of poor Americans expressing their grief and anger over the murders of their champions by breaking into stores and stealing refrigerators.  Again and again in continent after continent resentment against authority manifests itself in attacks on the nearest available target, usually the police.  It doesn’t require any expertise in Keynesian theory to recognise rank injustice and grotesque inequality in a consumer society and a celebrity culture where people experience acute poverty in the midst of blatant and extravagant luxury enjoyed, often, by those who have seemingly done nothing to earn it.  As every parent and teacher knows, one of the first moral judgements pronounced by small children is invariably “That’s not fair.”  There comes a point when those who know that their treatment by society is not fair but who feel helpless to do anything about it feel justified — wrongly according to the social code by which we have to live — in taking the only action open to them to gain some control of their own lives.  That’s inexcusable;  but then so is the condition to which we have reduced our society.  Many of those who took to the streets last week will end up in an over-crowded prison, abandoned in their cells for perhaps 22 hours a day, depersonalised and in many cases criminalised for life by the experience.  The ‘remedy’, being essentially irrelevant, will be worse than the disease — not only for the teen-age looters and arsonists, but for all of us.

Update, 2300hrs 12 Aug 2011: Those who, like me, are disturbed by the sentence of six months’ imprisonment passed on 23-year-old Nicholas Robinson, an electrical engineering student, for stealing bottles of water worth £3.50 from a branch of Lidl in Brixton, are urged to read a sober and scrupulous analysis of the sentence in MTPT’s blog, here (hat-tip: Tony Hatfield on Facebook).  The only possible conclusion from this analysis is that the sentence was a travesty of justice and that it ought to be immediately reduced on appeal to a community service order asnd curfew.  It will be worrying if the atmosphere of fear and vindictiveness generated by the riots is allowed to result in excessively harsh sentences being passed on those who in many cases don’t deserve the sympathy that such injustice will evoke.  The same applies to whole families now being evicted from their council flats or houses on the basis that one family member has been charged — but not yet even convicted — of participation in looting or other riot-associated offences.  This reeks of both collective punishment and blatant disregard of the principle of entitlement to the presumption of innocence until convicted in a court of law.  We are seeing evidence of fear and panic on the part of our governing class:  not a pretty sight.

Brian

Mr Moraes argues that

… far-right violence is more commonplace in the form of racist attacks and intimidation than is reported, and it is … on the increase… such violence is seen as unpalatable but often carried out by thugs and loners, and is too often subtly excused ‘as a cry for help’…  far-right extremism is so accepted in some European countries, that the extremes incited by elected politicians no longer attract surprise or condemnation…  governments, police and intelligence services must also take far-right hate sites much more seriously…  we should be aware that in the past two years there have been compelling international intelligence warnings of potential far-right atrocities…

concluding that

It is essential that Europe learns lessons as a result of this tragedy. It will be a mistake simply to see this as the act of an ‘insane fundamentalist loner’. Instead, far-right extremism, including the growth of violent organisations like the EDL here in the UK, has a disproportionate effect on many European societies, in Scandinavia, Western, Central and Eastern Europe alike. And it is likely the assorted groups on the extreme right in Europe will condemn this atrocity. It is up to us to understand how violence, on whatever scale, is at the heart of these far-right groups.

I have offered the following comment in reply:

I’m afraid that I don’t agree. I don’t believe that there are any useful or practical lessons to be learned from the Norwegian tragedy. The murderer is pretty clearly unhinged and out of touch with reality. It’s really nothing to do with his right-wing political views, whatever he might say to the contrary. He might just as well have excused his violent behaviour by reference to his membership of some left-wing Maoist revolutionary group. If the murders had turned out to be the work of a crazed Muslim fundamentalist from Bangladesh, would Claude Moraes now be writing that we should treat the episode as a wake-up call and a warning to take the threat of violence by Muslims far more seriously? I take leave to doubt it.

In any case, what precisely is the lesson that Mr Moraes thinks we should learn from the actions of Anders Behring Breivik?  We already know about the violent proclivities of far right groups, without the need for Mr Breivik to tell us about them. Our security services already monitor them, to the extent that resources allow, for signs of criminal behaviour. Are we to ban these groups, or criminalise the expression of unpalatable political opinions? Advocating or practising violence is already a crime. The legacy of New Labour’s record on anti-terrorism legislation is already a threat to our civil liberties, urgently in need of radical revision and reduction. We should not be stampeded by the actions of a lone madman in Norway into making yet more inroads into our freedoms of expression and association.

In the end there’s no way to provide 100% protection against the risk of a deranged individual running amok with a gun or a bomb. The Norwegians may decide to tighten up their gun control laws, but ours are already pretty tight. The security services can’t keep a 24-hour watch on every eccentric or weirdo with barmy political views who might quite possibly snap one day and go out and murder a few dozen school-children. It’s just one of numerous risks we simply have to live with.

Brian

For example, I predict that splitting England into regions, even if only for the purpose of equal representation in the federal upper house, would be fiercely resisted, to the point where any such proposal would probably wreck the federal project for good.  The predominance of England is a reason for equal representation of the four UK nations in the federal Senate, not an obstacle to it.  The object would be to prevent English representatives at the federal level being able to ram legislation through parliament against the opposition of any two of the other UK nations, a necessary safeguard against the domination of the federation by England.  (In the American federal Senate, little Rhode Island has the same number of Senators as California or New York State, for the same reasons.)  Remember that the only legislative subjects that would be affected by this would be the limited range of subjects, such as foreign affairs and defence, that would be assigned under the constitution to the federal level, and that very few of these would directly impinge on the ordinary lives of UK citizens — and that in addition, the powers of the Senate to amend or delay legislation coming to it from the federal House of Commons would anyway be very limited.

Once again I would stress the need to give adequate recognition to the reality that the UK is already a semi-federation, with actively functioning legislatures and governments in three of the four nations, all three with extensive powers.  The parliament at Westminster already functions for much of the time as a federal legislature for the whole UK, just as the Westminster government functions as a federal government most of the time.  It is the absurd and unsustainable paradox that both also have to function simultaneously as the legislature and government of England, with theoretically unlimited powers in England only, that makes it essential to move eventually to a full federal system, including an English parliament and government separate from those at Westminster.

The idea of an English Grand Committee of those House of Commons MPs who have been elected in England acting as a substitute for an English parliament, suggested in an earlier comment on your blog (and official Conservative Party policy!), is a non-starter, for many reasons, not the least of which is that such a ‘parliament’ could not function in a recognisably democratic manner unless accompanied by a separate English government.  It would perpetuate, instead of solving, the existing problem of dual-purpose MPs.  Moreover almost all legislation by the Westminster parliament on behalf of the whole UK inevitably impinges on England’s interests:  how would a conflict between the policies of the English Grand Committee and those of the whole House of Commons be resolved?

Some of the subjects that would normally be allocated to the federal level are already within the competence of the EU, so the new federal government and parliament at Westminster would exercise only very limited functions in respect of them — exactly as is already the case.

Several of the problems that people raise as objections to a fully federal system already exist — most obviously the massive disparity in population size, area and wealth between England and the other three nations — and are arguments in favour of federalism, not obstacles to it.  A full federal system would provide safeguards against English dominance over the other nations, mainly by giving the four nations full self-government, thus preventing England from interfering in the internal affairs of the other three nations.  At present there are few such safeguards against English dominance apart from those provided by devolution, itself a diluted and still inadequaten form of federalism.

In UK circumstances I envisage that under the constitution the (limited) subjects assigned to the federal level would be listed and defined, whereas everything else (“residual powers”) would rest with the four nations’ parliaments and governments, and these would not need to be specified, apart from a few shared subjects on which the federal organs would prevail in the event of conflict.   Thus almost every kind of law affecting the daily lives of citizens, from education and health to crime and local government, would fall within the competence of the Northern Irish, Welsh, Scottish and English parliaments and governments. The main provisions of the federal constitution would be ‘entrenched’, e.g. amendable only by a special majority (perhaps two-thirds) in the federal parliament and with the approval of two-thirds of the members of each of the parliaments of three out of the four nations.  Some constitutional changes might also need to be approved in a national referendum or in three out of four separate referendums at the four-nations level.

Much of this would need to be worked out during the process of drawing up the detailed federal constitution following, probably, a Royal Commission, a Constitutional Convention, elections to the new English parliament and government, endorsement by the Westminster and all four devolved parliaments, and at least one national referendum.

All this would have to be preceded by a consensus between all the main UK political parties on the ultimate objective of a full federation.  I doubt if this could all be accomplished in less than 20 years.  It’s pointless to get into debates now on the details of the new régime when there isn’t even any sign of agreement among the main parties on a full federation as the long-term objective.  The first and overriding task is to try to create a national consensus in favour of federalism to which all the major parties could sign up, leaving the small print to be settled after exhaustive debate at all the many later stages.  Our present hybrid constitution with all its glaring anomalies (the West Lothian Question being only one of them) is deeply unsatisfactory and almost certainly unsustainable, as the SNP victory in Scotland has demonstrated: we have been warned, although our political leaders seem so far to have ignored the warning.  No other remotely defensible solution to our current constitutional problems has ever been proposed.  It’s really a case now of federate or bust.

Having written in more detail than I originally intended, I am posting a copy of this piece on my own blog as well as submitting it as a comment to your own admirable blog, at http://did101.wordpress.com/2011/06/11/salmond-cameroon-british-constitution/.  Comments in either or both locations will be welcome — except that demands for separate membership of a UK federation for Cornwall may be taken as read, despite it being my favourite English county.

Brian

Meanwhile, serious crises are erupting in the real world out there, almost unnoticed by our media in their preoccupation with the examination of their own and the politicians’ navels.  The giant US economy’s recovery is stalling, with almost no progress in reducing the fearsome level of unemployment, while reactionary Republicans in the Congress, demanding yet more growth-stifling cuts in public services, block the belated efforts of Obama and the Democrats to try once again to stimulate demand and resuscitate the recovery on which Americans and much of the rest of the world depend.  In another part of the forest, the European Central Bank and the national leaders of the Eurozone countries squabble over how best to disguise the reality that Greece is on the point of defaulting on its mammoth debt, hampered in its efforts to avoid default by the imposition on its ordinary people of extreme measures of austerity, punishment for crimes committed mainly by others.  Western economies are the submissive slaves of unaccountable ratings agencies, run by and committed to the interests of the bankers, whose actions and threats of actions to downgrade the credit ratings of sovereign governments determine whether those governments can afford to borrow to keep their economies afloat.  Now Italy, with the third biggest economy in the EU, teeters on the brink of insolvency, with the cost of further essential borrowing soaring as bond yields are driven up by the ratings agencies, and a debt mountain too big, according to the FT, to permit an EU bail-out of the kind that might yet rescue Greece, Ireland and Portugal from collapse.  (The chief contribution to a resolution of this crisis made by the Italian prime minister, Signor Berlusconi, is apparently to try, unsuccessfully, to insert in the budget a provision that would protect the profits of one of his own companies.)

There’s additional bad news.  When the EU’s overall recovery from recession is threatened by the spreading contagion of sovereign defaults, with private sector demand failing disastrously to replace the collapse of demand generated by the public sector (precipitated by swingeing cuts in public borrowing and spending), the ECB’s response is actually to raise interest rates, thus further throttling overall demand, as if the main threat to EU economies was inflation caused by excess demand and excessive wage rises when the precise opposite is the case.

If all these impending calamities – the end of the US, Greek and Italian  governments’ ability to borrow so as to sustain even minimal levels of demand and economic activity – materialise, perhaps almost simultaneously and within a few weeks, we may see the collapse of the Eurozone, a threat to the future of the EU, and a world banking crisis that will dwarf that of 2008.  Worse still, western governments no longer have the resources to save the world banking system in the way they were able to do in 2008, thanks in large part to the economic and political skills of Gordon Brown (remember him?).  Which of our leaders has begun to prepare us for the day when the shops will no longer accept credit cards or cheques, satisfied only by cash, and when cash is no longer available from the bank counter or the hole in the wall?

On the domestic front, a brilliantly led separatist party wins an overall majority in the latest election to the Scottish parliament, and promises a referendum on Scottish secession from the United Kingdom within the next three to four years.  Not one all-UK political party has come up with any proposals for saving our country from disintegration, perhaps within the lifetime of the present semi-federal parliament at Westminster.  The UK’s own economy shows little sign of vigorous recovery in demand and spending that would lead to renewed investment and economic activity, or revival in availability of jobs, almost certainly the only sure path to recovery from recession and steady reduction in the budget deficit.  Instead, our ideology-driven Tory-led government actually increases VAT, continues to cut benefits for the poorest and most vulnerable,  and stands idly by while the bankers and financiers cheerfully resume the bad practices which brought us to the verge of ruin – grotesque salaries and bonuses, dodgy loans, bad debts bundled up in opaque derivatives that are then sold on in a steadily expanding bubble.  Banks saved from collapse by taxpayers’ money and by inescapable public borrowing are being sold back to the private sector as if nothing had happened that might call for reform.  Libraries, theatre companies and orchestras, Sure Start, the NHS and state education – all are being laid waste by the most doctrinaire and reactionary government in living memory, under cover of the need to cut the deficit in a wholly unrealistic time-frame.  Macmillan, Butler, Home, Heath, even Churchill must be revolving in their graves like gyros.

Yet amid the doom and gloom, all we read about or view in the media is acres and hours of excited, obsessive debate about whether Rebekah Brooks knew or should have known about industrial-scale phone hacking by her minions and if so whether she should resign:  whether the mighty powers of Mr Murdoch snr. have really been definitively skewered beyond recovery; who authorised News Corp’s massive payments to its hacking victims to keep them quiet; and which coppers pocketed equally large sums of Murdoch devil’s gold in return for illicit information.  None of these questions is unimportant.  All of them deserve and need scrutiny and remedial action – especially the corruption of our politics by the self-serving, blackmailing, bullying and favour-dispensing culture of the Murdoch empire and its politician toadies.  Better late than never!

But we deceive ourselves if we think that all this is going to change overnight, just because of the popular revulsion at the discovery that a nasty newspaper hacked into poor murdered Milly Dowler’s mobile.  There’s too much mutual interest in the relationship between politicians and the media moguls for it ever to be wholly free from corruption.  The impossibility and undesirability of the state assuming direct control over the media in an even partially free democracy preclude completely effective prevention of media excess and misbehaviour in pursuit of advertising, circulation, profit and power, the price we pay for “a free press”.  Even the Sun is better than the old Pravda.  The prurient appetite of a sizeable number of our fellow-citizens for celebrity gossip and dirt, for information about the sex-lives of the famous, the infamous and the insignificant, will always be fed by those who see profit and power in feeding it.  Old Mr Murdoch will be succeeded by equally unsavoury young Mr Murdochs and their strange, dead-eyed favourites.

As the judge-led, police, and other inquiries drag on and economic crises remorselessly succeed one another, how much of today’s attention to the details of phone hacking and the News of the World will survive in, say, a year’s time?  The brutal closure of the News of the Screws will doubtless achieve its main purpose, namely preventing the police and the judges from digging up too many five-year-old skeletons in the NewsCorp garden.  The inquiries will be denounced for failing to come up with definitive durable solutions to inherently insoluble problems.  Far more ordinary people’s lives will be far more directly affected by continuing or rising unemployment, ejection from their homes, and the steady erosion of their living standards, perhaps even by the collapse of the banking system and the disintegration of the United Kingdom,  than by the disappearance of a squalid scandal sheet from the newsagents on Sundays.  Of course the phone hacking affair raises important questions that require attention and action.  But let’s try to preserve some sense of proportion.  Far more important and threatening things are going on in the world around us than the future of  Rebekah Brooks’s job.

Brian

So there’s an urgent need for everyone who recognises the case for ending the cruel and unjust system of IPPs to email or write to their MPs or Ed Miliband, or Sadiq Khan MP (the Labour shadow Justice secretary) or David Cameron, or as many as possible of them, urging them to put their principles before their fear of being labelled ‘soft on crime’ and to support the replacement of IPPs by fixed sentences for the most serious crimes. Please also consider writing about it to a national or, failing that, your local newspaper.  There’s an increasingly urgent need to do everything possible to stimulate support for the replacement of IPPs in the imminent Justice Bill, and in particular to try to shame the Labour leadership in the House of Commons into dropping its shocking support for the most reactionary elements in UK politics who are campaigning to keep IPPs.  If you have influence with MPs, ministers or shadow ministers, or with civil rights groups such as Liberty, Justice, the Howard League, or the Prison Reform Trust, please go into top gear and do everything possible to mobilise vocal public support for ending indeterminate sentences, as currently proposed in Ken Clarke’s reform programme (what’s left of it).

Some of the arguments against IPPs are deployed at, for example, –

http://www.liberty-human-rights.org.uk/media/press/2011/liberty-welcomes-review-of-dishonest-indeterminate-sente.php

and

http://www.barder.com/2625 and http://www.barder.com/696, including especially the numerous ‘comments’ appended to these, many of them from the families, children, parents and lovers of the more than 3,000 prisoners serving indeterminate sentences who have served the punishment element of their sentences but see no hope of ever being released.

Time is running out.  Please do whatever you can, and urge your friends, colleagues and contacts to take action too.

Brian

an urgent review of sentencing for serious sexual and violent offenders. Consultation highlighted numerous weaknesses with the indeterminate sentence of Imprisonment for Public Protection. It has never worked as Parliament intended, creating instead a flawed system, which is not well understood by the public. We will conduct an urgent review with a view to replacing the current IPP regime with a much tougher determinate sentencing framework – which would be better understood by the public, and command greater confidence.

(For ease of reference, I have put the main passages in the government’s document relevant to IPPs on my website, here.)

Predictably, the potentially controversial decision to scrap this poisonous and indefensible system is offset by ‘tough’ promises to impose longer sentences for the most serious crimes (defined as serious sexual and violent offences), extending the point at which serious offenders become eligible for release on licence or parole, and so forth.  Some serious offences, if repeated, are to attract automatic life sentences –  because “the public like them”, according to the prime minister at his press conference to unveil the new policies.  Life sentences, with their tariffs or minimum periods of imprisonment imposed by the sentencing judge, resemble IPPs in some respects; but there is clearly a place for such sentences in the judges’ armoury.  The proposal to maintain the mandatory sentence of life imprisonment for murder, regardless of the circumstances of each individual case, is disappointing and retrograde, as are the other proposed new restrictions on judges’ discretion.  Various new offences are to be created, on generally unconvincing and suspect grounds.

Clarke’s enlightened hopes of sharply reducing the grossly bloated prison population, thereby enabling the prison and probation services to focus more intensively on rehabilitation and thus bringing down currently intolerable levels of reoffending, have been ruined by David Cameron’s panicky intervention.  Once again, as in New Labour’s worst excesses of illiberal populism, penal policy has been dictated and progressive measures vetoed by the Daily Mail, the Murdoch rags and the primitives on the Tory back benches.  The hysteria whipped up by a single over-casual and wilfully misrepresented radio interview has hi-jacked the entire debate on general prison and penal policy, with almost the entire media from left to right frantically arguing the pros and cons of increasing the sentence discount from the present 33% to a maximum of 50% for rapists (and incidentally all other offenders) if they plead guilty at the outset.  As Richard Garside, the director of the Centre for Crime and Justice Studies at King’s College London, acidly observed in a penetrating commentary,

That so many reformists invested so much in defending and championing a minor and uninspiring bureaucratic tweak to sentencing policy says much about the state of the current debate, and signals how much needs to change.

There was a solid case for the proposed increase in the sentence discount up to 50%, but let’s remember that it’s a form of plea bargaining, liable to place the innocent who fear a likely conviction in an intolerable dilemma, and eroding the principle of a fair trial. Its demise falls some way short of tragedy, even though the motives for its destruction were patently disreputable, a compound of populism and timidity.

Dr Marion Fitzgerald, of the School of Social Policy, Sociology &. Social Research. University of Kent, and specialist adviser to the Home Office Select Committee, speaking on the BBC television news channel on 21 June, welcomed many of the progressive features and aspirations of the Clarke policy document, even after its savaging by the cowards at No 10 Downing Street.  Dr Fitzgerald even speculated that the 50% discount proposal might have been included with the intention of sacrificing it if necessary to the reactionary jackals so as to improve the chances of salvaging some of the document’s more significant reforms.

Like several other liberal commentators, Dr Fitzgerald lamented the dismal failure of the Labour opposition leadership to give Clarke’s progressive proposals the sturdy and principled support they deserved.  Instead, the shadow justice secretary and the Labour leader proved unable to rise above petty point-scoring, at one low point actually calling for the resignation or dismissal of Ken Clarke.  So much for Ed Miliband’s inspiring promise, in his speech after being elected party leader, to acknowledge the shortcomings in New Labour’s record on civil rights and to chart a new course in this area under his leadership.  Can he really be so intimidated by yesterday’s men such as Messrs Blunkett, Straw and Reid, with their ancient shabby records to defend?

But let us accentuate the positive, for once, even if Labour’s front bench can’t see it (and Mr Cameron presumably hasn’t noticed it).  Indeterminate Sentences for Public Protection have inflicted, still inflict, massive injustice, hardship and suffering on many thousands of people, including men and women who have completed their punishment but are kept indefinitely in prison in preventive detention, not knowing when or even whether they will ever be released; tortured by Kafkaesque conditions for possible release which can never be satisfied, frustrated by gross and inhumane maladministration of the whole system by officials who are pathologically risk-averse, more concerned to safeguard their own reputations for prudence than to act fairly and humanely in the name of justice.  The torment inflicted by this nightmarish régime on the partners, wives and husbands, children and lovers of the victims of IPPs is almost impossible to imagine.  Now at last it is to be swept away.  Many questions remain to be answered:  what is to be the fate of those currently incarcerated under IPPs?  will the parole boards be instructed to apply completely new criteria in considering applications for release after the prisoner has served his or her tariff?  will the onus for demonstrating that there is solid justification for refusing release be transferred to the parole boards, or will the prisoner still be required to prove that he won’t reoffend, an obvious logical impossibility?  will prison governors be severely penalised if they fail to make available the courses which IPP prisoners are required to attend as a de facto condition for consideration for release?  will judges be allowed to continue to impose wildly inappropriate IPPs for relatively minor offences, or for notionally serious offences even where there are manifestly extenuating circumstances?  Let’s hope that all these questions will be discreetly answered in a spirit of reform and justice, preferably without arousing a fresh storm of irrational hysteria on the part of the hangers and floggers in the murkier reaches of the media and the reactionary elements in both the main political parties.  Which reminds me:  where were the LibDem coalitioners when an embattled Ken Clarke badly needed them?  Nowhere to be seen; silent, invisible.

Amid the wreckage of an enlightened justice secretary’s aspirations for radical reform of a seriously defective penal system, it’s just possible to discern at least one flickering flame of hope.  IPPs are to be a thing of the past.  As Mrs Thatcher would probably not have said, Rejoice!

Brian

Martin Kettle is right to dismiss Nick Clegg‘s hotchpotch of proposals for reforming the House of Lords (Nick Clegg’s House of Lords reform is folly. Abolition would be a better option, 3 June), but surprisingly omits to consider another option besides abolition: a second chamber on the pattern of the Senates of such successful federations as the US and Australia, with equal representation for each of the UK’s four nations.  With devolution to three of our four constituent nations, we have become a semi-federation, but we still lack most of the safeguards offered by a fully-fledged federal system.  A UK Senate with, say, 20 members elected by PR in each of the four nations would give Scotland, Wales and Northern Ireland much needed protection against the constant threat of being outvoted by the English members, just as the smaller Australian states such as Tasmania are protected by equal representation in the federal Senate against domination by New South Wales and Victoria.

Full federalism would entail other safeguards against English domination too, but this would be a vital one.  The UK Senate could have much the same limited functions as the present House of Lords and since it would not produce the government, nor include ministers, it could never threaten the primacy of the House of Commons. If the United States can manage with 100 Senators, two from each state, we could surely get by with 80, instead of the 831 members of the present House of Lords (!).  There’s no need to wait for the completion of the federal project (i.e. a parliament and government for England):  a federal-type Senate could be established within three or four years, given the will.

I try not to miss any opportunity to point out the huge advantages that a fully federal system would bring to all the UK’s four nations, and the fact that once our political leaders pluck up the courage to recognise the logical conclusion of the half-completed devolution process by instituting a separate parliament and government for England — and sharply reducing the powers and functions of the Westminster parliament accordingly — we shall have a de facto federation on our hands, whether we like it or not.

Our present semi-federal system (devolution to Scotland, Wales and Northern Ireland) has come about primarily to satisfy the legitimate demands of the Scots for more power over their own internal affairs and much less meddling and interference from the over-centralist government and parliament at Westminster.  Because England, with some 84% of the population of the UK, is so much bigger than the other three nations put together, there is a natural tendency for England to dominate the affairs of all four nations.  Devolution, by transferring powers in domestic matters from Westminster to three of the four nations, does offer those three a degree of protection from being dominated by England, as well as the obvious benefits of bringing decision-making closer to the people whose lives are affected by those decisions.  But Westminster still retains sweeping powers in all four nations, and Scottish resentment of this is clearly one of the factors in the victory of the Scottish National Party’s achievement of an overall majority at the elections of May 2011 — a convincing victory by a party committed to full independence for Scotland even while a majority of Scots, according to all the opinion polls, still prefer increased autonomy for Scotland to full independence and secession from the UK.

So further safeguards against the dominating power and wealth of England are required if relations between the four nations are to be placed on a sound, fair, democratic and durable footing and the integrity of the United Kingdom preserved from disintegration.  Further devolution of powers in all domestic matters is certainly one ingredient in this.  But the now near-universal support for reform of the second chamber offers a golden opportunity for another.  A federal-style second chamber at Westminster, with equal representation for each of the four nations regardless of population but with the limited powers of the present House of Lords, would provide an important further safeguard against the dominance of England.  As I argued in my Guardian letter, a UK senate could well be no bigger than 80 members, 20 from each of the four nations, compared with the 831 members of the present House of Lords.  Even if there were to be a new separate (but small) parliament for England, there would still be fewer parliamentarians in the UK as a whole than we have at the moment: so the argument that no-one wants even more politicians does not apply.

There remains one argument for the existing House of (unelected) Lords: that the presence in the so-called Upper House of eminent and acknowledged experts in their field, from retired army generals to gynaecologists, adds value to the debate on legislation as it passes through parliament.  Lord Winston, for example, is a great expert in human fertility with experience in other medical fields, and undoubtedly speaks (and votes) with special authority on such matters when they come before Their Lordships.  But it’s not easy to see why he should be given the privilege of speaking and voting in our national law-making body on such matters as, for example, defence or foreign affairs, on which his opinion is doubtless as good as anyone else’s, but not necessarily any better.  The same thing applies to other Lordships appointed for their expertise in specialised fields.  Such experts could easily be invited to participate in debates on questions within their field of specialised knowledge, both in parliamentary committees and indeed in plenary debates on the floor of the second chamber (why not?), but there is no reason for them to be appointed as members of the chamber or for them to have the right to vote in it.  That should be reserved to those who have been directly elected, either by First Past the Post in the case of members of the House of Commons (until the people, in their wisdom, decide to change the electoral system), or else by proportional representation in the case of a new federal-type senate.  The senate could best be elected for longer terms than the House of Commons, with a third or a quarter retiring every so many years, as in the case of the US Senate, so there would be no question of the two chambers duplicating each other;  and the senate, although directly elected, could never challenge the primacy of the Commons, since it would not produce the government, ministers would not be eligible to sit in it (although they could be required to participate in its debates and to answer its questions), and above all it would no more be able to nullify the decisions of the Commons than the present House of Lords:  only to delay them, as now.

(There should be no need to set out here the arguments against granting representation in either chamber of the national parliament to priests, mullahs, rabbis, or other representatives of any religion or sect, unless they are prepared to submit themselves successfully for election like anyone else. )

The benefits of a federal-style senate, which could be introduced forthwith, followed over the next several years by a gradual move to a fully federated United Kingdom, are so obvious that it’s mystifying that no major (or indeed minor) party has spotted the opportunity to pick them up and run with them.  With all our politicians mesmerised by the pursuit of the middle ground, it seems that we are condemned to mediocrity and a failure of imaginative, progressive or radical thinking, for all time.  How can we wake them up?  Perhaps the Scots will do us all a favour by giving the Westminster mafia a terrible fright, and forcing them at last to think the currently unthinkable.  But time is running out!

Brian

The charge against Clarke by such authorities on social policy as the Sun newspaper and the right-wing Tory cave-dwellers is that by acknowledging the obvious truth that some rape cases are more serious than others, he implied that some rapes are not serious at all.  In fact he implied nothing of the sort, and if he initially expressed himself clumsily, he made ample amends subsequently by stressing, as anyone of sound mind must, that rape is serious in any circumstances.  The proposition that all rapes are equally serious is however plainly ridiculous.

On his policy suggestions (which is all they are at this stage), Ken Clarke made it amply clear that the purpose of increasing the sentence discount for pleading guilty at the first stage of a rape charge would be to give an incentive to defendants to plead guilty and thus spare victims the added trauma of questioning and cross-examination both during the investigations and often eventually in court.  Whether the increase in the discount from one-third to a half, where the guilty plea is entered at the earliest stage, is too great is a subjective matter on which decent people may legitimately disagree.  But it’s clearly not an idea whose airing could possibly justify dismissing the relevant minister.

By attacking Clarke and calling for his dismissal, Sadiq Khan and Ed Miliband made several significant errors.  They gave the impression that they thought Clarke had said things about rape which he had neither said nor implied.  They themselves gave the impression of opposing a possible policy change, designed to spare rape victims unnecessary further trauma, without even considering its possible benefits, purely to curry favour with the most reactionary of the feral tabloids and to score points against the government.  They denounced Clarke for seeking to reduce the numbers of people in prison by increasing the sentencing discount for pleading guilty, thereby strongly implying that Labour is against any reduction in the shamefully excessive prison population, and thus putting the party once again at odds with all right-minded people with a social conscience, with every authority on penal policy and with every civil rights organisation.  And they accused Clarke of being motivated purely by a desire to save public money by sending fewer people to prison — as if saving public money by a patently desirable liberalisation of prison policy was a crime.  This is a charge that Labour needs to abandon once and for all.

But worst of all, Messrs Miliband and Khan have failed to recognise that the best hope of long overdue penal reform in this country lies squarely in Ken Clarke remaining in office as Justice Secretary, with sufficient all-party backing to enable him to carry through the reform proposals in his Green Paper on sentencing policy issued a few months ago.  These include sensible practical changes designed to reduce the numbers of people unnecessarily sent to prison and above all to bring down the present horrifically high rates of reoffending.  They also include measures to reduce sharply the numbers of sentences of indefinite imprisonment — actually an indefensible system of preventive detention — and to reform the unjust, incompetent and repressive ways in which such sentences are administered.  If Ken Clarke is forced out of his job, it’s almost inconceivable that his successor would have the liberal instincts and political weight to get these desperately needed reforms past the reactionaries in the Tory party and the media.

For all these reasons, the action of the leader of the opposition and the shadow justice secretary in actually increasing the pressure on Clarke to resign (or on the prime minister to sack him) was wrong on every possible count.  Most of the reforms espoused by Clarke have been made urgently necessary by ill-conceived and illiberal measures for which a succession of disastrous New Labour home secretaries and a justice secretary were responsible.  By seeming to oppose their reform, the Labour front bench is giving the impression that the party leadership has learned nothing from the Labour government’s dreadful record on human rights and civil liberties, and will oppose any attempt to reverse it.

It’s time now for Labour to issue a ringing endorsement of Clarke’s reform proposals and to promise the beleaguered Justice Secretary full support against the right-wing enemies of reform.  Labour needs to acknowledge unambiguously that there are far too many people in prison who ought not to be there, that reoffending rates can and should be brought down and that there is no place in a decent democratic society for preventive detention.  In doing so, the party would be fulfilling the explicit promise in Ed Miliband’s acceptance speech at the party conference immediately after he was elected leader.  He knows, as we all do, that by returning to its historic commitment to justice, civil rights and enlightened penal policies, Labour will be accused by the Tories and probably the LibDems of doing a U-turn and admitting that Labour in government committed serious errors that now have to be put right.  We all know that Labour’s former home secretaries will fight tooth and nail to defend their shoddy records and avert any implied or explicit repudiation by Labour’s new leaders of the harm they did.  But we also know that when you have dug yourself into a hole, the best thing to do is to climb out of it, not to keep on digging.  In this context, that’s not only the best practical course:  above all, it’s the right one.

By their actions yesterday Ed Miliband and Sadiq Khan have aroused the suspicion that they are once again heading down the wrong path on penal policy and reform.  If this continues, it will be a disaster for the party, and potentially also for the country and for justice.  Fiat justitia, ruat caelum!

Update (20 May 2011): I have now listened carefully to the whole of the Radio 5 Live interview of Ken Clarke by Victoria Derbyshire (http://www.bbc.co.uk/podcasts/series/victoriad, victoriad_20110518-1416a.mp3) and I have to say that I found nothing remotely objectionable in anything whatever that Clarke either said or implied.  The accusation that he said or even hinted that he regarded some kinds of rape as not serious is absolutely unfounded: indeed he said with emphasis at least twice that all rape is a serious crime deserving severe punishment.  He drew a distinction between different kinds of rape, some aggravated by violence and lack of consent and others not, as the explanation for sentences for the crime of rape varying in severity.  Anyone who professes to be offended by that must be living on another planet.

Brian

Madeleine Bunting’s wake-up call about the implications for England of Scottish secession from the UK (If Scotland goes, all we’ll have left is the Englishness we so despise, May 16) is timely and rings many bells, but she needn’t dismiss “the unappealing option of an English parliament” as part of a federal Britain, which would be greatly preferable to dismembering the UK through Scottish independence and good in itself for the whole country.  Devolution of all internal powers to the parliaments and governments of all four UK nations, with minimal functions left to the federal government and parliament at Westminster and safeguards against English dominance, would solve many problems besides Scotland’s demand for full self-government, including our besetting sin of over-centralisation, the West Lothian Question and the other anomalies created by incomplete devolution.

Nor need Ms Bunting fear that an English parliament “spells the (Labour) party’s demise”:  according to an expert comment on my blog, there have been only two UK Labour governments which didn’t have a majority of members in England, in 1950 and for a few months after February 1974. (After the October 1974 election there was the Lib-Lab pact in which no party had a majority in either the UK or in England.) All other Labour governments have had majorities in England.   Labour would need to adapt radically to an internally self-governing England within a federal UK, but that might be no bad thing; the other parties would have to adapt and change too.  Given leadership and a national consensus on the objective, it could all be accomplished in under 20 years.  Better than Scotland breaking up the UK!

Brian