The Act of Parliament which has at long last swept away future IPPs, the Legal Aid, Sentencing & Punishment of Offenders Act 2012, or “LASPO”, deals with a wide range of topics in addition to the abolition of IPPs. Many of its provisions are controversial, and some are certainly objectionable. It seems clear that some of the more draconian provisions of the Act have been included as the price that Ken Clarke, the Justice Secretary, and the government’s house liberal, has been forced to pay for the abolition of IPPs, a measure that goes against the grain of much Tory backbench opinion and the reactionary policies of the feral tabloids. The Labour frontbench, much to its discredit, has dismally failed to give even lukewarm support to Clarke’s efforts to rid us of IPPs: indeed, there have been moments when shadow ministers have come close to opposing abolition, whether from fear of the tabloids or because of pressure on them from the succession of illiberal Labour home secretaries responsible not only for IPPs but also for numerous other indefensible laws on crime and punishment and under cover of the so-called war on terror. So the abolition of IPPs owes nothing whatever to the Labour opposition in Parliament or to the massed ranks of retired colonels on the Tory back-benches.

However, it’s too soon to say ‘Mission Accomplished’. Thankfully, no more IPP sentences can now be passed. But all those handed down before 1 May 2012 remain in force, and those thousands of prisoners who have paid their debt to society, but still see no hope of ever being released, still face the same impossible requirements for regaining their freedom as if LASPO had not been passed into law. The gleam of hope for them lies in the power given by LASPO to the Justice Secretary to set new criteria to be used by the parole boards in deciding whether an IPP prisoner can safely be released. It’s clear from earlier Justice Ministry documents that the intention will be to remove the onus for demonstrating that the prisoner will not reoffend from the prisoner, requiring instead that the parole boards must order the prisoner’s release unless there are solid and specific grounds for believing that he will reoffend if released. This change can’t happen too soon if a huge weight of fear and uncertainty is to be lifted, not only from the prisoners concerned, but also from their families and other loved ones. Now is the moment, not only to liberalise the criteria for releasing IPP prisoners, but also greatly to accelerate the processing of all those who have served their minimum sentences (‘tariffs’) but who still languish in jail under what can only be described as preventive detention.

Ken Clarke and his Justice Ministry deserve congratulations and thanks for steadfastly sticking to their guns and getting this significant reform through Parliament and onto the statute book, in the face of widespread timorous doubts and much outright hostility, some of it from powerful quarters. They need no reminding that the task is not completed until the last post-tariff IPP prisoner walks through the prison gates to freedom.

As a postscript, this blog is glad to have played a part, however small, in the campaign for the abolition of IPPs, including the provision of a space on the Web in which literally hundreds of relatives of IPP prisoners have been able to appeal for advice and support, as well as expressing their anguish and fear at the appalling uncertainty facing them and their loved ones, never able to be sure that the person concerned will ever be released. Many have written in comments on blog posts here about the disgraceful games of cat and mouse played with IPP prisoners by parole boards and the prison authorities in the effort to postpone indefinitely a decision on whether a prisoner has demonstrated that he will not reoffend if released. This cruel behaviour by an effectively unaccountable authority should now be ended by an entirely new regime, to be installed by the Ministry of Justice, to ensure that the great majority of IPP prisoners are systematically, but rapidly, processed and released without further delay.

Historians of penal reform by a right-of-centre government, sulkily opposed by a supposedly left-of-centre opposition, may care to read through some of the posts on this blog over the past several years, including especially the hundreds of comments appended to them by others: http://www.barder.com/3419, /3372, /3355, /3350, /3331, /3326,   http://www.barder.com/politics/liberty/ipps-extracts-from-parliamentary-papers-october-2011, and many, many more.

So: three cheers for May Day, 2012 and the end of IPPs.  By all means open the bubbly!  But tomorrow there’s more work to be done before those infamous IPPs can be said to have been consigned to where they belong: the dustbin of history.

Brian

The obsession with preserving the primacy of the House of Commons, and avoiding conflict between the Commons and an elected second chamber, is misconceived.  The Commons’ primacy is already guaranteed by its function as the creator and home of governments – the prime minister and all senior ministers must nowadays be MPs, not peers, and the government derives its legitimacy from having the confidence of the majority in the House of Commons, not the House of Lords.  (It would be wise to provide that after any reform of the second chamber all ministers must be MPs, not members of the second chamber: there could be provision for ministers to appear in the second chamber to answer questions.)

The primacy of the house of commons is further secured  by the strict limits on the powers of the Lords, including provision to ensure that in the event of deadlock the Commons always prevail: the second chamber can delay legislation sent to it from the Commons, but can’t veto it.   These safeguards should remain after the second chamber at last becomes an elected body.

We need to remember that we don’t need to invent the wheel.  The vast majority of western democracies have two wholly elected legislative chambers without suffering the kind of constant conflict or  paralysis that our rulers fear (the coup d’état mounted by the Governor-General of Australia and the then leader of the federal opposition against the prime minister, Gough Whitlam, in November 1975 following a deadlock between the two Houses was a function of a bizarre anachronism in the Australian constitution).   Moreover a degree of constructive conflict between the two chambers can be good for accountability and transparency, especially if both have a plausible claim to democratic legitimacy through being elected.  The fear of an elected second chamber sometimes challenging the house of commons reflects the control freakery and over-centralism that are the bane of our politics.

The alleged benefits of the expertise contributed by members of the House of Lords, cited as justification for retaining an unelected, appointed element in a reformed second chamber, are wildly exaggerated.  A distinguished ex-gynaecologist has no more credentials for contributing to a debate on Trident than an equally distinguished retired admiral has for speaking on abortions (and the bishops have no obvious expertise on anything relevant to law-making).   An elected second chamber could call on expertise ad hoc, even allowing experts to participate in debates, as required: but unelected experts should have no claim on seats in our legislature just because they are experts.  What’s more, the great majority of members of the House of Lords have no particular expertise anyway: many are just superannuated ex-MPs, ‘elevated’ to the Upper House purely because their seats in the commons were needed for someone else, or alternatively as a reward for a lifetime of sheep-like obedience to the party whips in the house of commons  In any case, the wisdom and profundity of House of Lords debates are more often admired than experienced:  as our sharpest constitutional commentator, Walter Bagehot, sagely remarked, “A severe though not unfriendly critic of our institutions said that the cure for admiring the House of Lords was to go and look at it,” an observation as accurate now as when it was written (in 1867!).

As to the timing and purpose of the reform, and as a brave minority of the Joint Committee have pointed out, it’s absurdly premature to design a new second chamber before Scotland has decided at the referendum on independence scheduled for autumn 2014 whether to secede.  Following devolution the UK is now a quasi-federation, or ‘semi-federation’, as acknowledged by the constitutional guru Professor Vernon Bogdanor.  If the Scots choose to stay in the Union, as most sensible people hope, the need for a federal Senate on the Australian and US patterns will become increasingly obvious.  Each of the four UK nations should elect an equal number of Senators — perhaps 20 each, giving us a Senate representing the four nations with 80 elected members, almost exactly a tenth of the present grotesqely swollen House of Lords.  If the US, with a population five times ours, can manage with 100 Senators, surely we can make do with 80.  Equal representation for each of the four UK nations (like equal representation for each of the Australian and US states in their respective federal Senates) would provide a vital safeguard  for the UK’s three smaller nations against continuing domination and interference by England, by far the biggest of the four.

As a footnote on the preferred size of a reformed second chamber, it should be noted that the government’s draft Bill envisages a chamber of 300 members, while the Joint Committee says this is far too few, and goes for 450.  Well, both are better than the present 800 plus, which is manifestly crazy;  but 300 and 450 are both still ridiculous.  80 would be quite enough.  The fewer the Senators, the better the research staff and facilities we can afford to provide them with.

There are other nonsenses in the draft Bill and the Joint Committee report.  Both the government and the majority of the Joint Committee favour 15-year terms (non-renewable, mercifully) for all second chamber members, with no requirement to face the electorate, once elected, ever again – a reliable recipe for sloth, complacency and lack of accountability, far longer than in almost any comparable parliament.  The proposal that 20% of the membership should be appointed, not elected, soldiers relentlessly on, impervious to intellectual demolition and to the impossibility of inoculating it against corrupt political patronage, despite fantastic attempts to devise ever more indirect controls:  ” Appointments would be made by a statutory Appointments Commission, which for certain purposes would be overseen by a Statutory Joint Committee…”  – the latter to be a joint committee of both houses of parliament!  There is still to be a bench of unelected Church of England bishops, in reduced numbers to be sure, as if a mere dozen of them would be too few to raise any question of justification for having any at all, quite apart from the implied insult to Catholics, Jews, Muslims, flat-earthers and the sizeable majority of us who rarely give religion a thought.  Elections to the new second chamber are to be held at the same time as general elections to the house of commons, although how this is to be squared with the proposal that one-third of the second chamber’s members should be elected to 15-year terms every five years is unclear.  Some of the Joint Committee’s conclusions are simply unintelligible: “The Committee considers that a more assertive [second chamber] would not enhance Parliament’s overall role in relation to the activities of the executive” – which I find more obscure each time I read it.  There is almost no evidence that either the government or the Joint Committee have studied the experience of other bicameral legislatures, or sought to learn from it, presumably out of a settled conviction that the British have nothing to learn from Johnny Foreigner.

Nearly half the members of the Joint Committee disagree with a sizeable number of the recommendations of the majority.  All three major parties are deeply divided on nearly all the principal questions arising from the reform project.  Right-wing Europhobic Tories are insisting that if the eventual proposals for House of Lords reform are to be put to the people in a referendum, there must also be a referendum on UK membership of the EU, although the reasoning behind this proposition is obscure.  Leading LibDems, the most ardent reformers, argue that since all three major parties are committed to Lords reform, there is no need for a referendum on the matter – whereas in fact that makes a referendum all the more necessary, since the electorate has no means of registering opposition to any change by voting for a serious party which favours the status quo.

There could scarcely be a less promising prelude to carefully thought-out and coherent, purposeful reform than this chaotic medley of irreconcilable differences and often ludicrous proposals, many of them based on demonstrably unsustainable premisses.   A sane consensus is most unlikely to emerge from the dissonant clamour, and the likeliest destination of the volumes of solemn argument is surely the Too Difficult Tray (known to cliché-addicted hacks as the Long Grass).  It’s hard to resist the conclusion that this is probably the least bad of possible outcomes of the current exercise.   Steadily growing interest in a federal future for the UK will be reinforced if Scotland votes to stay in the Union with devo max, and a federal system absolutely requires a full written constitution, justiciable by a Supreme Court and defining in detail the respective powers and functions of the constituent parts of the federation and their organs.  A separate parliament and government for England, among many other controversial matters, will be essential features of a federal system.  The preparation of such a constitution will have to be preceded by at least one Royal Commission and at least one constitutional convention, followed by exhaustive scrutiny in parliament and a number of referendums, in a process likely to stretch over 20 years or more.  The nature and purpose of the federal parliament’s second chamber are just one piece that will have to fit precisely into the enormous jigsaw.  To attempt to create it now, in isolation from its almost certain future context, is surely the biggest exercise in futility since King Canute’s courtiers tried to persuade him to make the sea recede.

Brian

• “[The World Bank's] most recent reforms of voting rights were remarkable only for their temerity.”
  The glimmer of a possibility of change at the World Bank, Peter Chowla, Guardian, 14 April 2012.
  Who has the temerity to suggest that it might have been timidity that characterised the reforms?

• “I doubt [sc. 'if'] you will ever find a politician more desperate to believe Nietzsche’s aphorism that whatever doesn’t kill us makes us stronger than Mitt Romney.”
  Mitt Romney’s erratic judgment is already undermining his candidacy, Michael Cohen, The Observer, 15 April 2012 (opening sentence!).
  Amazing prescience on Nietzsche’s part.

And from a little longer ago on the Web:

• “I also recall an interesting essay, More than one English question, … which reveals the diverse political and cultural drivers underpinning the rising tide of English self-consciousness over the last 20 years or so.”
  http://www.opendemocracy.net/ourkingdom/nick-pearce/this-enchanted-isle-place-politics-and-england
  Please draw a picture of a driver underpinning a rising tide.

• “The initially small but revolutionary collection literally explodes.”
  About Olaf Benz – Men’s Swimwear …  www.olaf-benz.net/?menu_id=4
  Blowing the unfortunate swimmer out of the water, I suppose.

And a late addition from an email circular from Cunard:

• “We wanted to remind you that as a loyal Cunarder our exciting new 2013 voyages are available for you to book from 8am on 24 April. “

Brian

A new, youngish (well, 41), attractive, independent candidate is suddenly and belatedly beginning to attract more interest.  Siobhan Benita is a former civil servant who has left a quite impressive career to run for mayor of London.  Her only backer of any note is Sir Gus (now Lord) O’Donnell, former head of the civil service and cabinet secretary, with whom she worked during her civil service career.  She is due to release her manifesto tomorrow; so far the only elements in it that we know about are worthy but unexciting.  Nevertheless, such is their widely shared dislike of Messrs Johnson and (especially) Livingstone that already several of my politically savvy friends and family have announced that they intend to give her their first preference votes.

The yearning for a fresh face at Greater London’s City Hall is totally understandable, and the general mistrust of professional politicians feeds it.  But a first preference vote for Siobhan Benita is not so much a political act as a gesture, which has political consequences that may not be what her supporters intend.  It’s virtually inconceivable that she can win, having no party label, no organisation to fund and master-mind her campaign, and no record of having run an enormous and complex institution comparable with London.  She has no experience of any kind of elected office. Very few Londoners know anything about her.  No-one can tell how she would cope with the huge pressures of the job, managing a multi-million pound budget and having to stand up to extremely powerful vested interests.  In truth her candidature is not completely serious, attractive though she is in almost every sense of the word.  She may well have a future in UK politics, for which her London mayoral campaign could be a useful preparation, but unless there’s a political earthquake in London of unprecedented magnitude, she’s not going to win.

At present Boris Johnson has a significant lead over Livingstone and seems extremely likely to win, despite representing the party of an unpopular, deeply reactionary, incompetent and manifestly failing Conservative-led national government.  In this situation, every vote for Siobhan Benita that might otherwise have gone to Labour improves Boris Johnson’s chances. I just hope that those on the liberal-left side of politics who are currently determined to make the essentially futile gesture of voting for Benita will at least give their second preferences to Labour, if only as a penance; but that should salve no consciences, since if Boris Johnson wins an outright majority in the first round, Benita’s second preferences will never be redistributed and those giving her their first preferences will have contributed to a famous and wholly undeserved Tory victory.  However flawed, Livingstone is the Labour candidate. He is more concerned about London’s have-nots than Boris, who seemingly couldn’t care less about anything except Boris and his career.  A Labour defeat in London will badly damage Labour morale nationally and give a big fillip to Cameron and Osborne, which must be the last thing most of us want.  Conversely, if Boris were to be defeated, he would quite likely find his way back into the house of commons and become a threat to Cameron, which could usefully shake up the Tory party and British politics with it.

London is a deeply unequal city, with a huge gap between the enormously rich and privileged and the increasingly hard-pressed poor, victims of national Tory policies that place the main burden of deficit and debt reduction on those least able to bear it.  A progressive mayor can do a certain amount to protect London’s most vulnerable citizens, including those who commute in and out of London to work.  Whatever his failings, Ken Livingstone is much likelier than Johnson to work to reduce poverty and inequality in London.  It’s still possible that he could win.  But a surge of protest gesture votes for Siobhan Benita could make a Johnson victory virtually certain.  If you’re a Londoner, hold your nose if you must, but Vote for Ken with your first (and only[1]) preference on Thursday May the 3rd!

Update (10 April):  I owe Ms Benita [sic] an apology for misspelling her name throughout the first edition of this post, and in the notification emails.  Mea maxima culpa.

Second Update (10 April):  A friend has commented privately that even for those who on balance, even unenthusiastically, prefer Labour’s Livingstone to the Tories’ Johnson, it can do Livingstone no harm to give a first preference to Siobhan Benita as a gesture of support, so long as the second preference goes to Ken Livingstone if and when Ms Benita is eliminated.  My initial reaction was that such a failure to give a first preference vote to Livingstone from the start would risk allowing Johnson to cross the 50%+1 line and win the election before Ms Benita has been eliminated, so that her second preferences, including those for Livingstone, would never be redistributed.  However, my unpaid numeracy adviser has persuaded me of the counter-intuitive mathematical fact that if Boris wins enough first, second and if necessary third preferences eventually to win the 50%+1 of the votes to get himself elected, it won’t make any difference whether those who preferred Livingstone have given their first preferences to Siobhan Benita or to Ken Livingstone.  The only scenario in which failure to give a first preference vote to Livingstone could damage his chances of beating Boris is the unlikely situation in which Ken is himself in danger of being eliminated before the final round.  In that case, a first preference for him could keep him in ahead of someone else (say, the Green), and then he could go on to win it with everyone else’s second preferences.   Apart from that, there is no way that you can harm Ken’s chances by putting your favoured candidate (such as Ms Benita) first, so long as you put Ken Livingstone second.  Assuming that Ken is not going to be eliminated (except in the last round if Boris then crosses the 50%+1 line to win), then it should make no difference to his chances of being elected whether you put a minority candidate such as Siobhan first, and him second, or whether you give him your first preference.   So Labour-inclined voters can reasonably safely vote 1. Benita, 2. Livingstone, if that makes them feel better.

That is the electoral arithmetic.  The political case against voting 1. Benita, 2. Livingstone is that there is an inherent futility in casting one’s first preference vote, in an election for mayor of London, for a candidate who you know can’t win, and who would be unlikely to be capable of governing London successfully even if she did.  To do so would be pure, or impure, gesture politics.  It risks deluding oneself that it’s possible to evade the only real choice, namely that between Ken and Boris.  Politics is very often a matter of identifying and then accepting the lesser of two evils.  As the great Saul Bellow remarked, quoting T S Eliot, ‘Perhaps humankind can’t bear too much reality, but neither can it bear too much unreality, too much abuse of the truth.’   The grown-up thing to do is to decide which of the two candidates with a serious chance of winning is less unsatisfactory than the other, and give him your first and only preference.  By all means also send a donation to Ms Benita’s campaign fund, just to encourage her to stick at it and try again for elected office later, even if she persists in pretending that a person who actively practises politics can somehow not be or become a politician.  She might even eventually grasp the reality that if she’s going to make a difference, she’ll need to join an existing party — in her case presumably Labour or the Greens — and work to change and reform it from within.  It will be a pity if she wastes her talents on being a permanent lone voice.  Meanwhile, I can only repeat:  Vote 1. Livingstone, and no-one else.  It may not taste nice, but you’ll get over it.

[1] If you give your first preference to either Livingstone or Johnson, it’s a waste of time to cast your second or other preferences for anyone else, because it’s highly unlikely that either Livingstone or Johnson will be eliminated until the final round — which means that their second, third and lower preferences will never be redistributed.

Brian

In the first place, the problem is inherently insoluble, so any measures proposed as Labour policy are doomed to be seen as failures, even if some of them achieve occasional partial success.

Secondly, this is preeminently a problem to be tackled in local communities, not by a novelty silver bullet (‘restorative justice’) fired by swingeing legislation from the centre. To mix the metaphor, one size will never fit all.

Thirdly, and perhaps most importantly, putting top emphasis on antisocial behaviour is fatally reminiscent of the Blair years, giving the impression that Labour is more concerned to sound tough than to promote progressive reform, uphold civil liberties and defend human rights. It should increasingly obviously be an urgent priority for the Labour leadership to mark a sharp break with New Labour: to make the fresh start promised by Ed Miliband in his speech at the party conference immediately after the leadership election.

On far too many subjects Labour under Mr Miliband sounds like a continuation of Blairism. Some of the old stagers of the Blair and Brown governments need to be pensioned off, or at any rate invited to keep quiet: above all, not to complain if some of the more glaring deficiencies, errors and indeed crimes of the Blair years are now explicitly disowned by the party he led. For evidence of this pressing need, you only need to look at Bradford West.  Whatever people might think of George Galloway as a politician and a person, thousands of us have been yearning to hear our Labour leaders talking pretty much the same language as Gorgeous George – so far, in vain.

There’s also the question of priorities. When we have the most reactionary government in living memory systematically dismantling the welfare state; enriching the bankers at the expense of the unemployed, the homeless and the disabled;  squandering millions on pointless and unwinnable foreign wars; maintaining an ‘independent British nuclear deterrent’ which is not independent, which is not British, and which deters no one;  selling off the NHS to private interests;  privatising state education and removing it from local authority control; tackling an economy in depression through lack of aggregate demand by slashing the disposable incomes of working people and throwing millions of public servants out of work, thus throttling such demand as still survives – when a Tory-led government is doing all these appalling things, it beggars the imagination that a Labour leader and Leader of the Opposition can be seriously proposing that the main focus of the party’s national policy should be antisocial behaviour.

I’m not saying that antosocial behaviour doesn’t matter: obviously it is the bane of very many people’s lives.  But so are aeroplane noise, inefficient public transport, travelling conditions in the rush hour, bullying and sadistic bosses, interminable road works, customer service call centres, criminally over-priced restaurants and petrol pumps, rotten standards of nursing in hospitals and Mr Nick Clegg.  National politics can do something about some, but not all, of these familiar pestilences.  None of them, though, not even antisocial behaviour, qualifies for the top billing in the national policies of a great political party, at a time when our whole liberal democracy is under active threat (not to mention such issues as climate change and global poverty).  Right now the worst and most damaging kind of antisocial behaviour is that of Messrs Cameron, Osborne and Clegg.  First things first, please, Mr Miliband.

[This is an edited and expanded version of a comment on an article about Labour policy on antisocial behaviour in LabourList, here.]

Brian

David Cameron has made no serious attempt to defend Mr Cruddas’s performance, calling it “completely unacceptable”. And clearly there were aspects of the Tory treasurer’s offer that were indefensible: the expressed willingness to use underhand devices to circumvent the legal ban on donations to UK political parties by foreign companies or persons, and the sheer crudity of the suggested deal. But a good deal of the hoo-ha has been synthetic, ignoring or misrepresenting at least two aspects of the affair.

First, the British – or at any rate the English – are absurdly squeamish about the realities of politics. It is in the nature of political activity both to seek to influence the policies of political parties and the government, and to give various kinds of support, including money, to the party which comes nearest to reflecting the interests, aims and values of the individual citizen or his company, union or other group. The key word here, apart from ‘money’, is ‘interests’. The essence of politics is the attempt to promote the interests of the numerous groups that make up society, and especially those of the main social and economic classes. Sometimes this effort is a zero-sum game, in which the aim is to promote the interests of one class at the expense of another. In its more palatable form, politics is about trying to reconcile partially conflicting interests so that there are no outright winners and no outright losers. For some reason English political commentators tend to be mealy-mouthed about the reality that in this battle of class interests, and occasional attempts to mediate it, the moneyed classes – property owners, employers, managers, the City – are mainly represented by the Conservative party, while the poor and the less well-off, the employed and unemployed, the ethnic minorities and the most vulnerable in society, are generally speaking represented by the Labour Party. Of course there are numerous exceptions to this generalisation: well-off middle class liberal intellectuals supporting Labour, and working-class men and women afraid of change, naturally deferential, or just reactionary or xenophobic, supporting either the Conservative party or other parties even further to the right of it. But it is impossible to understand the working of the British political system without recognising that the two major political parties exist primarily to promote the interests of the two fundamental social classes in society, the haves and the have-nots, or however you choose to define them.

It follows from this that the Conservative party will basically be funded by donations from the relatively or absolutely rich, both individuals and institutions; and the Labour Party by contributions from ordinary working people, liberal intellectuals, and the organisations to which such people belong, predominantly of course the trade unions. Everyone knows that this is so. Not everyone seems to realise that it is also inevitable, and in many ways quite healthy. Both the main parties are forced by the sheer need for funding to cultivate their natural supporters, to identify their interests and aspirations as well as their problems and grievances, and to formulate their policies in ways which will maintain that support, both on the doorsteps and at the ballot box — and by donations of money. It is this, more than any other factor, which drives the parties and keeps their feet broadly on the ground.

The second aspect of the Cruddas affair which is widely misrepresented or ignored is the nature of the relationship between the Labour Party and the trade unions affiliated to it. That relationship differs crucially from that between the Conservative party and the big financial interests which support and fund it. The affiliated trade unions are an intrinsic part of the Labour Party and of the wider labour movement. It was principally the trade unions that founded the Labour Party to represent their interests in Parliament. They have a significant voice – some mistakenly say too loud a voice – in the election of the party’s leader, and in the development of party policy; they often sponsor its MPs. The connection is not just one of convenience: it is institutional and organic. To demand that the unions should be banned from providing the bulk of the Labour Party’s funding, or to express outrage at the extent of trade union influence on Labour party policies, is to misunderstand the nature of the party itself: a form of party point-scoring that merely exposes the ignorance of the critics. It is also, of course, in effect to demand the demise of the Labour Party, which could not operate effectively as the principal representative of the have-nots in society without trade union financial support.  The fracturing of the structure of the present political parties which would result would be deeply damaging to our democracy, substituting horse-trading among numerous party leaders for the will of the electorate in determining who governs us and how we are governed.  The outcome of the 2010 election should serve as a terrible warning.

The Cruddas scandal has predictably prompted another round of interparty talks designed to ‘reform’ the way our political parties are funded. The Lib Dems, who no longer represent any recognisable class or other sectional interest, naturally favour a system that would guarantee their financial future – which can only mean public funding out of general taxation, although their leader (Nick Clegg) is reported to have ruled this out.  There are many obvious objections of principle and practice to public funding of political parties. However small the contribution from each individual taxpayer to the political parties support fund might be, I for one would have the strongest objection of principle to a single penny of my taxes going to the Conservative party, and an even stronger objection to other pennies going to UKIP or the British National Party. No doubt most hedge fund managers and industrialists would object equally to any funding for the Labour party out of  their taxes, if they have failed to find a way to avoid paying them.

But there is an even stronger objection. The need to raise money and other forms of support from their natural constituencies imposes an indispensable discipline on the parties. A guaranteed handout from the taxpayers, however modest, would encourage them to be even more indolent, complacent and out of touch than they are already. We should not forget that there is already some support for the parties from public funds in various forms; there is no case for increasing it.

There is however a strong case for imposing much lower limits on the amounts of money that the parties are allowed to spend both at election time and between elections. Much of the electioneering undertaken by all the parties prompts more general contempt and irritation than loyal support. It is probably largely counter-productive; we could do without it. If the parties were forbidden by law to spend as much as some of them do at present, it would tend to free them in part at least from the tedious necessity of constant fundraising, and enable them to spend more time maintaining contact with the electorate and developing and refining their policies. It would also reduce the unfairness implicit in the much greater wealth of the supporters of the Conservative party than that of the supporters of any other parties, including Labour. We don’t want to get into the situation in the United States where only the mega-rich can afford to run for national office and where in effect elections can be bought.

So poor boastful doomed Peter Cruddas was essentially doing what the treasurers of all political parties in the UK have to do: they offer influence on party policy in return for money. All political activists seek to influence the policies of the parties they support. Some of us do it by blogging and writing to the newspapers, badgering our constituency MPs, devising and voting for resolutions in dusty committee rooms, marching in demonstrations and delivering leaflets. Others do it by giving money, thereby enabling their chosen party to function. There is nothing inherently sleazy or corrupt about it. It is when it happens in secret that it becomes morally and politically unacceptable. As so often, the key to reform, to the extent that reform is needed, is transparency. We probably don’t need to know which company directors and bankers have been sharing roast pheasant and vintage claret with Mr Cameron: nor which trade union leaders have been having a pint and a packet of crisps (or a bottle of champagne with caviar nibbles) with the Milibands or with Yvette and the other Ed. Politicians naturally socialise with their supporters and those with similar class tastes and interests, and are influenced by them on policy issues. But we need complete openness about who gives how much money to which political party, and as far as possible what policies the bigger donors, whether billionaires, chairmen of FTSE 100 companies or trade union bosses, are pressing on their politician friends.  Daylight is a great cleanser.

Brian

The European Court of Human Rights is preventing Britain from deporting the radical Moslem preacher, Abu Qatada, to his native Jordan on the grounds that he would not get a fair trial there if, as is likely, much of the evidence against him would have been obtained by torture. Instead of joining the clamour for the public to be protected by ever more draconian and illiberal measures from the threat posed by this pantomime villain, Yvette Cooper, Labour’s shadow Home Secretary, would be better advised to attack the coalition government from a liberal and enlightened position, perhaps using the following script:

“The Home Secretary, Theresa May, and her illiberal right-wing supporters in this House, should be ashamed of themselves for their reckless and populist attacks, not only on the European Court of Human Rights for preventing the government from deporting Abu Qatada to be tried in Jordan and probably convicted there on evidence likely to be tainted by torture, but also for attacking our own judge, the chairman of the Special Immigration Appeals Commission (SIAC), who has rightly ordered that Abu Qatada should be released on bail, subject to extremely stringent conditions, since he clearly cannot and should not be kept indefinitely behind bars any longer when apparently — and inexplicably — our police and prosecuting authorities can’t find any evidence on which to charge and try him, and under the ruling of the European Court, there’s no prospect that we shall be able to deport him any time soon.

“It is a sad reflection on British justice that we have kept this man in prison in England for a total of 8-1/2 years — the equivalent of a 17 year prison sentence — without having charged him with any offence, still less having put him on trial. Half a dozen countries around the world reckon that they have enough evidence to put him on trial, if they can get their hands on him. Apparently we are the only one that can’t. One of our oldest and most jealously guarded liberties is the right not to be deprived of our liberty except after a fair trial by our peers. How can the Home Secretary demand that this individual, however evil he might be, should be kept in prison even longer when we aren’t prepared to charge or try him, and we can’t legally deport him? Does Mrs May want to sentence him to another eight or nine years behind bars when he is entitled to the presumption of innocence until a court of law convicts him of an offence?  If we can’t put him on trial and we can’t deport him, he is absolutely entitled to his liberty. Once he is free, he can be subjected to intense surveillance by the police and the security services, so that the moment he steps out of line the evidence will be there for him to be tried, convicted and given an appropriate sentence, not by a government minister, not by the bellowing colonels on the back benches opposite, and not by the tabloids, but by an impartial judge.

“The Home Secretary says ‘it is simply not acceptable that Britain cannot deport a radical Moslem cleric who poses a serious risk to our national security.’ Does Mrs May not understand the basis on which the European court has ruled that to deport Abu Qatada to Jordan where he is unlikely to get a fair trial would be a breach of his fundamental human rights, as defined in the European Declaration of Human Rights to which this country has subscribed, in accordance with the ruling of a European court whose jurisdiction we have accepted? Does the Home Secretary, of all government ministers, not subscribe to the rule of law? If she can’t grasp the importance of respecting the legal rights of everyone in this country, however vile they might be, perhaps she should have a talk with her colleague, the attorney general, who understands these things so much better.  (I hope I won’t get him into trouble by saying that.)

“The government says it is considering the possibility of an appeal against the decision of the European court, presumably welcoming the likelihood of further humiliation. It is also continuing to pursue the possibility of deporting Abu Qatada to Jordan. I suppose they hope to extract from the Jordanian government a document that will say: ‘Normally we do like to torture a few witnesses in terrorism cases to make sure they will give the evidence we want, but since you have asked us to make sure that we don’t use torture to convict Abu Qatada, we will do what we can to comply, although we aren’t sure that we have total control of our prosecutors, who do seem to have potentially controversial ways of making people talk. We have deliberately qualified this promise a little, because we are not really that keen to have this man back in Jordan: we would much sooner he was kept in Britain for another decade or so. After all, he’s your problem, not ours.’

“The Home Secretary and some of the retired colonels on the benches behind her have lost no time in seeking to exploit the case of Abu Qatada in support of their campaign against the European court of human rights, a body which Britain took a leading part in establishing and whose decisions we are  bound to respect and obey as a treaty obligation under international law. The Prime Minister is taking  the lead in accusing the court of interfering in the rights of national governments and parliaments to make their own policies and carry them out. Sir Nicolas Bratza, the distinguished British judge, appointed by Britain to represent us on the European court and currently the president of the court, has taken the unusual step of publicly reprimanding our Prime Minister for misrepresenting what the court does and for failing to understand its history and role. Yet again the Prime Minister brings Britain into disrepute. Predictably, the right-wing tabloids and other chauvinistic voices have set up a clamour about the ruling of the European court and the decision of our own British SIAC that Abu Qatada must be released on bail. Do the Prime Minister and the Home Secretary do their duty by defending the role and decisions of the judges against ignorant, prejudiced criticism, and pledge to act in accordance with the law, however unpalatable its requirements might be? On the contrary: they join in the clamour, ensuring by their example that it becomes yet more subversive of the rule of law, more disrespectful of Britain’s international and domestic obligations, more shrill.

“Those of us who served in the New Labour governments of Tony Blair and Gordon Brown are justifiably proud of their many achievements. But as Ed Miliband said in his speech to the Labour Party conference immediately after his election as party leader, Labour’s attitude in office too often seemed casual about British liberties. Too often we sponsored legislation to enable us to imprison without trial people who had not been convicted of any offence, but who were thought likely to commit an offence if they were left at liberty. People given Indeterminate Sentences for Public Protection (IPPs) are still behind bars in punitive conditions after having served the punishment part of their sentences, sometimes years ago. They go on being punished, no longer for what they have done, but for crimes that someone thinks they might possibly commit if they are let out of jail. Other people have been placed under control orders which make it impossible for them to lead ordinary lives, earn their living and socialise with their friends, deprived of most of their liberty without ever having been  charged or convicted of breaking the law. The present government, to its credit, has abolished control orders, but it has replaced them by something very similar – T-PIMs, control orders lite. The Justice Secretary, Ken Clarke, also to his credit, is taking steps to abolish IPPs — but introducing new mandatory prison sentences which eat into the discretion of the judges.  Now the Home Secretary and her supporters are damning the  Special Immigration Appeals Commission for ordering the release of Abu Qatada on bail conditions similar to those imposed by the old control orders, not because these are too severe but because they think Abu Qatada should not be let out at all but should be kept in prison indefinitely, even if this would be against the law.

“When the coalition government was formed, we were promised that its junior partners, the Liberal Democrats, would be able to restrain the authoritarian and illiberal tendencies which are the traditional mark of the Conservative Party. Yet the voice of the LibDem members of the coalition is silent while the Prime Minister and the Home Secretary flout and vilify every principle of a civilised society which respects the rule of law. I have to confess that until now what should be the liberal voice of the historic values of the Labour Party on the opposition front bench on our fundamental human rights and liberties has also been either muffled or silent. I now pledge that this will change.  We should no longer have to rely on the government’s two token small-l liberals, the Secretary of State for Justice and the Attorney General, to uphold our traditional British values. We claim to be a law-abiding people. It’s time we had a law-abiding government.”

Come on, Yvette: you can do it!

Brian

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