Sunday, 20 December 2009

Warming to the argument, Part 2

So the Copenhagen climate change conference is over, with some good news as well as bad news.

Copenhagen

On the good news side, China and the US have actually managed to agree something. On the bad news side, it was not enough to meet UN targets of limiting rises in global temperatures to 2C above pre-industrial levels, and most of the other countries there might as well not have turned up. The other countries and in particular the EU could have failed to "take note of" the US/China accord, which was supported by Brazil and India, as a protest, but since the accord was not approved at the conference - unanimity would have been required for approval and that was not available from those countries who stand to be flooded by it - that would only have been symbolic. Also on the good side, it looks as if some concerted action will be taken on deforestation, which as I mentioned in Part 1 has a significant impact on the earth's carbon sink.

On limiting temperature rises, the accord stated that "We shall, recognising the scientific view that the increase in global temperature should be below 2C, on the basis of equity and in the context of sustainable development, enhance our long-term co-operative action to combat climate change." The accord did not in fact on its words adopt 2C as a target, even as a non-binding one, but instead "recognised" it as "the scientific view". The Intergovernmental Panel on Climate Change which is the author of this scientific view recommends that to meet a 2C target, developed countries must cut emissions by at least 25% from 1990 levels by 2020, and that global emissions must peak and begin to decline by 2020 at the latest. The accord came up with no collective target to cut emissions to achieve this and it did not specify a year at which emissions are to peak.

Because of the weak formulation of the agreement between the US and China, the EU did not offer, as it was prepared to do, to move its current target of a 20% cut in emissions by 2020 to 30%, and Australia and Japan stuck to their minimum offers. These offers will now be considered at the next round of discussions in Mexico next year, but China, India and Brazil will not it appears accept independent verification of whether they will meet whatever is agreed because of concerns about national sovereignty (or, put more succinctly, they do not like being pushed around by the west given that the west is still the largest global producer of human induced carbon dioxide).

The IPCC view is that what looks to be on offer for Mexico will cause global temperatures to rise by around 3C, but this seems to be about the best that can be achieved at the moment. As I mentioned in Part 1, feedback effects make it difficult to say for sure what the final result of the expected levels of carbon dioxide to be put into the atmosphere will be, because how the oceans will react to these rises is still subject to research.

Subsidiary issues

I have three other subsidiary thoughts. First, some of the remarks made about China: if I were in the Chinese government I would be somewhat annoyed about these. China may by now be putting into the atmosphere about the same amount, or slightly more, carbon dioxide than the US, but if so it is still way behind in emissions per head. China has a population of around 1,300 million, and the US around 310 million. There seems to me to be some hypocrisy at work here in order to force China to a (necessary) deal.

Secondly, despite forcing China into a deal it is not a foregone conclusion that President Obama will get the modest commitments made by him for the US through Congress, and in particular the Senate. The US is a wonderful but strange country (I was partly educated there and I like the place), but part of its strangeness is the anti-science views held by some of the right wing in the Republican party, where science sometimes seems to be viewed as a test of one's faith rather than representing any objective reality, supported in part also by the view that concessions are for wimps and inconsistent with the country's national prestige. I have noticed that this tinge of irrationality seems to be affecting some of the right wing political blogs in the UK now also (we have sites referring to the IPCC as "climate cooling deniers"), but this seems partly for the fun of having a good argument, partly a dislike of Gordon Brown and partly because those interested in politics tend not to know much about science.

Thirdly then, Gordon Brown. Readers of this blog will know I do not like the Gordon Brown/Ed Balls/Charlie Whelan axis of fixers which now charts the direction of the Labour Party in the lead up to next year's election, and which I happen to think the Labour party will end up regretting and find quite damaging to them. I also happen to think that Gordon Brown is unelectable. And I think his major role, with Donald Dewar, in bringing forward devolution for Scotland in a way which is seriously unfair to people in England, in order to retain electoral advantages for the Labour party in forming a UK government, is to be seriously deprecated. And I think he is now being reckless with the public finances (and also that his agreement with the French to tax the City to produce money for the global warming fund for developing nations shows an astonishing lack of grasp of the national interest1).

However, on climate change the fact of the matter is that he has been putting in significant good work, and I do not think this was just political posturing with an eye to next year's election. I must give some credit where it is due.

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1 This fund is one of the good news parts of the accord. But putting a specific tax on the City is madness.

Thursday, 17 December 2009

Warming to the argument

As it has been snowing today, I thought I would turn to global warming, which has been the subject of debate since internal e-mails within the Climate Research Unit of the University of East Anglia were hacked into and published.

Those involved in climate research have been "revising" or "weighting" old data, and it so happens that this revising has emphasised warming in the last two decades as against temperatures experienced during a warm period between around 1000 and 1350 AD and in the 1930s. The issue is whether this revising was for objective scientific reasons - to account for example for a better understanding of differences in measuring techniques applicable to estimating temperatures at different times in the past (eg from tree rings) - or whether the hacked e-mails show that there has been an illegitimate manipulation of data done because those who did it thought it was "in a good cause", namely to strengthen the case for the saving of the planet. A sub-issue is the extent to which the collected data is still objectively reliable given this revision.

The background

Some facts are a matter of accepted science by all those on both sides of the debate. It is indisputable that human activity has affected and will continue to affect the global climate. Everyone accepts that carbon dioxide at trace levels is a greenhouse gas, the release of which into the atmosphere by the burning of fossil fuels will increase global temperatures. The question is to what extent and whether it matters.

The problem here is that the impact of increases of carbon dioxide in the atmosphere creates instabilities: every mole of carbon dioxide that is released into the atmosphere causes through warming approximately an additional two moles of water vapour to be released, which has a more potent greenhouse effect than does carbon dioxide. In addition, as polar ice melts, the heat absorption of the earth increases (less solar radiation is reflected back into space) thus also increasing temperatures, and the methane trapped in frozen northern latitudes is also released to the atmosphere, which is itself a very potent greenhouse gas. Against that there are balancing factors the other way, namely that both the oceans and natural plant growth (and plant growth increases as levels of carbon dioxide increase) form carbon dioxide sinks; and increased cloud formation increases the reflection of solar radiation from earth. It is indisputable that a point would be reached at which the second will not be capable of accommodating the first and some form of runaway would take place. This tipping point would come at lower levels of fossil fuel consumption if we continue to cut down the rain forests, as the rain forests form a significant proportion of the earth's current carbon sink. There are other natural processes, in particular rock (silicate) weathering, which decrease levels of carbon dioxide, but the time scales for this are much too long to operate in the period we are concerned with.

All climate scientists agree that the ultimate fate of the earth will be thermal runaway, and the climate will become similar to that of Venus - temperatures well beyond 100C and so hot as to incapable of sustaining any form of conventional life. This will occur irrespective of the effects of mankind on the environment because the luminosity of the sun is increasing at a rate of about 8% per 1 billion years as it expends its nuclear fuel. The earth is now approximately 4.5 billion years old, and plant life in one form or another has existed for about 500 million years. In approximately 100 million years the indirect effects of rising temperatures on photosynthesis from increased solar radiation will cause most of today's plant life to die out (perversely perhaps, this will arise because silicate weathering from increased temperatures will by then have reduced levels of carbon dioxide to below those necessary for the main form of photosynthesis to take place). In 1 billion years' time the oceans will have evaporated and earth will begin losing some of its atmosphere; and by about 4 billion years' time complete thermal runaway will have taken place. Such life destroying thermal runaway will be later followed by the sun turning into a red giant in its final period of nuclear fusion about 7 billion years from now, during which the earth will be burnt to a crisp. The sun will then collapse and be extinguished (it will become a black dwarf).

Such extinction of life is a long way ahead viewed from our perspective (although a short time ahead in terms of the evolution of life on earth), and I entirely accept the argument that we do not want to hasten our demise, but as Private Fraser would have said, as a species "we're all doomed I tell ye"1.

Moving back to the present, it should also be noted that the earth has already experienced wide climate variation. We are at present in an ice age, that is a time when there are permanent ice sheets on both poles. To be more exact we are in an inter-glacial period of an ice age. There have been times (in fact the majority of time in the history of animal life on earth) when there have been no permanent ice caps. There have been other times when the ice sheets have nearly extended to the equator - the "snowball earth". This climate variation has been caused by variations in the luminosity of the sun (which as mentioned increases over time), the position of the earth and its orbit in relation to the sun and most particularly by the effect of the movements of the continents through plate tectonics on ocean currents.

Where we are


For the reasons mentioned above, in planning for the future we are looking at around the next 50 to 100 million years (a long time by human standards). After that, the bets are off from natural causes which we cannot avert. As I say, the question is whether human induced global warming (as opposed to long term solar induced global warming) matters when looking at that period. The problem we have is that we don't know for sure how serious those effects will be, but there certainly will be effects.

The two possible effects from increasing levels of carbon dioxide deposition in the atmosphere are:
  • Warming that does not reach the point of causing a runway effect: this would involve melting of the polar ice caps causing a significant rise in sea levels, so flooding a substantial proportion of present land masses, and significant changes in rainfall and weather patterns in relation to the land which remains.
  • Warming that gives rise to thermal runaway.
The second is clearly undesirable as it would involve the early extinction of mankind as a species. The first would be likely to cause major population relocations, mass starvation and war. In short, it would give rise a very unpleasant existence indeed for those subjected to it, but probably not extinction of the human species.

The current furore about whether global temperatures have decreased over the past decade is really a side issue, since short-term climatic variation is quite normal: there was a warm period about a thousand years ago, and a cold period about 600 years ago. The fact of the matter is that viewed from a longer term perspective, releasing carbon dioxide into the atmosphere will cause long-term rises in global temperatures, some polar melting and some changes in weather patterns. The latter two are being observed now. (Although global temperatures may not have been rising over the past decade, polar temperatures certainly have.) The question is how much of this will be caused and to what extent we can take it as a global society.

To give complete balance, the interglacial period we are now in will also at some point end. This will likely cause some re-glaciation of northern areas, and thus also population relocations and possibly war. But the time scales for that are much less pressing than those caused by global warming through consumption of fossil fuels and deforestation.

The fact of the matter is that levels of carbon dioxide in the atmosphere are increasing and this will have an effect. Future generations will rightly curse us if we fail to deal with it now; and it is getting urgent. It would be a great shame if any unscientific activities by those at the Climate Research Unit that may have taken place because they "thought it was in a good cause" - and we won't know whether there were or not until the inquiry at present under way reports - serves to cloud this truth.


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1 Even if the human species escapes thermal runaway on the earth by establishing a human-friendly atmosphere on Mars and moving there, life on Mars would also be made unsustainable when the sun enters its red giant phase. Even if that is avoided by moving to another solar system, if one wants to be particularly morbid it should be noted that the second law of thermodynamics and the unavoidable increase in entropy over time give us a one-way ticket to nothingness, albeit in a very, very, very long time, even if other unpleasant events do not intervene before then such as the decay of fundamental particles, a big crunch or a big rip.

Friday, 11 December 2009

Keeping confidences

Most readers will by now know that Jack Straw issued a certificate yesterday under section 53 of the Freedom of Information Act 2000 overriding a decision made by the Information Commissioner under Part 4 of that Act that the 1997 minutes of the Cabinet Ministerial Committee on Devolution to Scotland and Wales and the English Regions should be released in response to an information request under the 2000 Act. It was this Cabinet committee which had the task of establishing how the devolution commitments in the Labour party's 1997 election manifesto (which were in rather vague terms) should be implemented.

The retention of information

The Cabinet Office had refused the information request for these minutes on the grounds (a) that they fall within the exemption in sections 35 (information relating to the formulation of government policy) and 36 (information which would be likely to prejudice the maintenance of the convention of the collective responsibility of Ministers of the Crown or be likely to inhibit the free and frank provision of advice, or the free and frank exchange of views for the purposes of deliberation), and (b) that by virtue of this prejudice the public interest in maintaining the exemption outweighs the public interest in disclosing the information. Both limbs needed to be fulfilled for the minutes to be withheld, because the section 35 and 36 exemptions are not absolute exemptions. To withhold them the "balance of the public interest" test also has to be applied and met. The Cabinet Office thought it was, but the Information Commissioner disagreed.

Section 53 of the 2000 Act gives the relevant Minister of the Crown power to override decisions of the Information Commissioner or Information Tribunal on the public interest test where the decision relates to amongst others a government department, by issuing a certificate under that section. This power has only been used once before.

I have to say that, contrary to received opinion in the blogosphere, I have very little argument with Jack Straw's decision. In my view it would result in worse government, not better, if ministers or their advisers could not say what their real views were on a matter before the Cabinet because of fears that those views may subsequently come out within a period which is still politically active, particularly if those ministers are still in government, as some still are - including in particular Jack Straw. One would expect there to have been differences of opinion on how devolution was to be implemented to give effect to the manifesto commitment - on a point of such constitutional significance it would be disappointing if there were not. Nor do I have a problem with the government having the reserve power to override the Information Commissioner. At the end of the day I think matters of constitutional importance should be decided by our elected representatives, who can take their chances at the ballot box.

As one could predict, those with strong views about devolution are now bringing up their own theories about what the government is trying to hide. The SNP have issued a statement indicating that the minutes will show that there were some in the cabinet unpersuaded by the case for the granting of wide legislative powers under the devolution arrangements and that the government are trying to hide this. The Scotsman newspaper in an editorial seems offended that the Cabinet may have discussed knock-on effects such as whether it should result in review of the Barnett formula and whether Scottish over-representation at Westminster should be reduced to bring it to the level of representation applying in England. The former has not yet happened, the second in the end did. (The Scotsman editorial writer also appears to think that the Information Tribunal can override the section 53 certificate - it can't.)

As I say, there ought to have been and quite probably was robust discussion about the extent to which devolution was to go and about its knock-on effects elsewhere, during the course of which those in the Donald Dewar camp (probably including Gordon Brown), who wanted a wide range of powers to be devolved including legislative competence, won the argument. As I have commented before in this blog, many seem to underestimate the amount of autonomy given by the Scotland Act 1998 to the Scottish government and Parliament, including legislative and executive autonomy in the fields of health (there no longer is a "National Health Service" in the UK sense), education, housing, local government, transport (other than air transport) and most of the justice system. Unlike the proposals of a decade earlier, the 1998 Act works on the principle that everything is devolved unless it is explicitly stated in the Act to be a reserved matter. It did so so successfully, that 80% of the business as Westminster now relates to England and Wales, or England only.

Those who want a Parliament for England have put forward the opposite hypothesis, that what the government is trying to hide is its indifference to the unfairness for those in England of the current devolution arrangements, and/or that in Labour's own self-interest it never seriously intended meaningful devolution for England. The latter may well be true because as I have previously commented the regional devolution proposals brought forward by John Prescott were weak in the extreme, to the point of showing bad faith. However I doubt very much that the government were in 1997 indifferent to unfairness to people in England - unfairness is not the business of those having to face an electorate at 5 yearly intervals. Probably they just felt they could "face it out" in the short term and that something would turn up in the medium to long term.

The future

So, although withholding the Cabinet minutes may avoid annoying people in England and Scotland who are sensitive to annoyance about devolution in more or less equal measures, the decision seems to me to be right insofar as it relates to Cabinet government and collective responsibility.

An interesting point arises about the future however. Whether or not the Tories end up with a majority in the next Parliament, and I still think they will, they are almost certain to form the largest party and in the event of a hung Parliament either form a minority administration or form a pact with the Liberals. If in a year's time another information request arrives, one can predict that the Information Commissioner will remain of his present view.

Will the then Minister of Justice want to renew the section 53 certificate, or would he or she quite like Labour to be discomforted by the Information Commissioner? And how does this relate to the convention that a government does not get to see the previous government's confidential cabinet papers? The then Minister of Justice (or however else he/she chooses to style the name of the office) will have to see the minutes to reach a view on whether to renew the certificate. A tricky issue - one which quite probably an incoming Tory government will choose to let lie. After all, it would have plenty of other things to worry about. In any event, the present government announced in the summer that it was reducing the then-applicable 30 year period for release of Cabinet papers as public records to 20 years, and many on the Tory side thought this was a weak attempt to relight feelings of antipathy concerning Margaret Thatcher in advance of the pending election. The Tories could just wait another 8 years and allow Labour to embarrass itself with its own policy (in good time for the election after next).

Saturday, 5 December 2009

Digital Economy Bill

The Digital Economy Bill was introduced into the House of Lords by Lord Mandleson shortly after the Queen's Speech and received its Second Reading last week. Clauses 4 to 17 of this Bill give effect to the so-called "three strikes and out" proposals, under which repeated downloading of material in breach of copyright will cause an internet subscriber to be disconnected from the internet or otherwise restricted in some way (what the Bill refers to as "technical measures").

Breach of copyright is breach of copyright, and although many think that attempting to prevent unlawful sharing of copyrighted material over the internet is a fruitless exercise which is bound to fail in the end, a few countries have been persuaded by the international media corporations (mainly those making and selling CDs and DVDs) to attempt legislation in the area. These include France and now the United Kingdom, but this approach is not yet widespread. To that extent the UK and France will be something of a test bed.

These proposals have to be viewed against the background that for many access to the internet has become essential to leading a normal life - a point the government itself made when promulgating its proposals for broadband to be made available compulsorily over the whole of the UK, including rural areas, to be paid for by current telephone subscribers. For many, probably most, it has become as important to everyday life as did the provision of electricity supplies in the last century.

One feature of the Bill is that practically everything of substance, including the procedures for giving warnings (and indeed even the number of warnings - there is no mention in the Bill of "three strikes") is to be fleshed out in codes of practice. The Bill requires the provisions of the codes to be objectively justifiable, non-discriminatory, proportionate and transparent, and to provide rights of appeal ("subscriber appeals") to an independent technical panel and thence (if a subscriber has been cut off or had internet access restricted) on grounds to be specified in the code to an Appeals Tribunal, but this is a poor substitute for spelling out more of the detail and the subscriber protections in the Bill itself, particularly as these codes will only be subject to the most limited Parliamentary examination - some require approval by statutory instrument subject to annulment procedure, which is cursory enough given that Parliamentary time is rarely given to annulment motions, and some are not even subject to that. The Data Protection Act 1998 for example sets out considerably more detail on the information which is protected by it, and on enforcement and appeals.

There is a good analysis of the Bill produced by the UK's Open Rights Group so I will not go into more detail about it here: those interested can read that article. I should say though that I do not agree with the Group's contention that the appeal procedures are defective because it would not be open to an internet subscriber to appeal a proposal that he or she should be cut off on the grounds that what was done was not in fact in breach of copyright. The Group reason that the "copyright infringement disputes" subject to appeal comprise a dispute which "relates to an act or omission in relation to a technical obligation or the technical obligations code" and that this does not go to whether there was a breach of copyright in the first place. However it seems to me that what would be appealed would be the cutting-off of the internet supply or the placing of restrictions on the internet supply to the subscriber - that would be the "act in relation to ... the technical obligations code" and that would allow the subscriber to raise the issue of whether the rights of the copyright owner have in fact been infringed, and not just whether in fact file sharing took place. The Bill provides for two levels of appeals. For cases only involving the "initial obligations code" (mainly involving preparation of copyright infringement lists) there will be no second right of appeal from the technical panel to the Appeals Tribunal, but there will be once the possibility of being cut off or having internet access restrictions imposed comes into play through the "technical obligations code".

Nonetheless I think the Bill is subject to criticism on the grounds that these essential protections are left to the codes rather than set out in the Bill itself.

Leaving aside the detail set out in the Open Rights Group analysis, there are four other overview points I would make about the Bill. First we (the internet subscribers) are going to pay for this. The Bill provides for copyright owners wanting to invoke the procedures to contribute to the costs of internet service providers in operating the code, but these are not required by the Bill to be pound for pound. In addition, internet service providers as well as copyright owners can be required to contribute to OFCOM's costs in drawing up the codes, and in preparing reports, which it would have to do both quarterly and annually, about copyright infringement by internet subscribers. This is a form of taxation, to be met in the end by internet subscribers, rather nicely described as a "sharing of costs".

Secondly, although the Bill enables (but does not require) the code to compel a copyright owner to enter into arrangements with an internet service provider regarding the number of copyright infringements the owner can allege against the provider's subscribers within a particular period, there are no sanctions for repeated incorrect or inaccurate claims of infringement leading subscribers to be cut off when they should not be, or to spend the time and effort in appealing when they should not have to do so. In particular, no protection is offered for subscribers against those alleging infringement other than that of appeal. The omens are not good on this: a number of claims of illegal file sharing have been made by media company representatives against people in the United States under different (US federal) legislation where the evidence for this has been shown to be simply wrong or technically deficient, but I also make the more general observation that human nature is such that if overly broad powers are given they will in the end be abused. Even the police are prone to that, as witness the improper use they have been making of sections 44 and 58 of the Terrorism Act 2000 to prevent people taking photographs in public places in a way we would not have thought possible in this ostensibly free country only three or four years ago. If the police feel able to do this, what about distant media companies with zealous middle managers wanting to meet their quota for catching "those criminal file sharing commies", companies which probably aren't even in a UK legal jurisdiction to begin with.

The potential for abuse is further widened by the fact that the Bill provides that the codes may provide that "the number and nature of copyright infringement reports relating to the subscriber may be taken into account for the purposes of any technical measures" (that is, a cutting-off), and that there can be a minimum threshold number of reports before an internet service provider is required to take action as well as a maximum number of infringements that a copyright owner can make. These "copyright infringement reports" are the copyright owner's allegations of infringement, not proven infringements. And any warning to a subscriber sent by virtue of an infringement report does not even need to be sent by post - according to proposed new section 124A(7) of the Communications Act 2003 as inserted by clause 4 of the Bill it would be sufficient if it is sent by e-mail, even though e-mail is known not to be a reliable means of delivery. Within the first year or two of a scheme of this kind coming into force, we will be having our first horror stories of people being cut off the internet where they should not be as a result of the poor practices of those operating the scheme and in particular of the media companies, poor practices which will quite probably be strenuously denied until someone does the public service of leaking some internal documents demonstrating it. I do not think the Bill as yet requires the codes to be robust enough to deal with this.

Thirdly, the cutting-off of a subscriber, or other technical measures, are not necessarily the end of the matter. The internet service provider could be required on application to a court to reveal the name of a subscriber equating to a particular internet address (the numerical internet address given to a computer or router when connecting to the provider's internet service). I do not have a problem with that provided that data protection safeguards are met (and they should be if application has to be made to a court), but it demonstrates that there are other remedies available to an infringed copyright owner apart from cutting a subscriber off. To the credit of the Bill, it does provide in clause 5 a "subscriber identity firewall" which requires an order of the court before actual names can be revealed.

Fourthly, clause 17 of the Bill enables amendment of Parts 1 and 7 of the Copyright, Designs and Patents Act 1988 by order made by statutory instrument subject to affirmative procedure just on the grounds that it is "for the purpose of preventing or reducing the infringement of copyright by means of the internet, if it appears to the Secretary of State appropriate to do so having regard to technological developments that have occurred or are likely to occur". Apart from the fact that this is a grossly excessive power to confer - to change the fundamentals of copyright law as set out in Part 1 of the 1988 Act - it is difficult to see how this could be necessary to give effect to the intentions of clauses 4 to 16 of the Bill. The government's explanation for this extraordinary provision at Second Reading was completely unconvincing and it would be very alarming if this clause were to survive into the Bill as enacted. Let's hope it does not do so.

Tuesday, 1 December 2009

The long game

The Scottish government published its white paper on proposals for a referendum on Scottish independence yesterday. Since its publication, most of the political commentariat appear to think that Alex Salmond is on the run, with the recent Labour by-election win in Glasgow (albeit in one of their safest seats in the UK), and with polls showing a small decrease in the amount of enthusiasm in Scotland for independence.

I think this is a misjudgement. Alex Salmond is in this for the long game, and it is significant that the white paper yesterday proposed that only three of the four main options available for the future should be put to the Scottish electorate in a referendum. These three options are:
  • no change
  • "devolution max" within the UK (what the white paper refers to as "Full Devolution")
  • independence from the UK
Alex Salmond is clever as well as charismatic, and he has sensed as well as anyone else that people in Scotland have an inchoate wish for "something more" but do not appear to have the stomach for independence. Whilst the white paper is opaque in many of its parts (and a remarkable proportion of it is taken up by pictures of Scottish ministers and happy smiling faces), it is significant that the fourth main option, namely implementation of proposals similar to those of the Calman Commission, does not feature for inclusion in the referendum: the white paper considers these to fall short of what Scotland needs. His short to medium term objective appears to be that the wish in Scotland for "something more" will turn into a majority at a referendum for "devolution max", which will create such constitutional instability within the UK as to result, over the course of time, in independence by the back door. Certainly that would be my tactic if I were a Scot and keen on independence.

He probably realises that he is not going to be able to get a Bill with a referendum offering these three options through the Scottish Parliament as at present constituted, but he is no doubt looking beyond that to the Parliament as constituted after the next Scottish elections. No doubt he would be willing, if he had to, to reach "devolution max" and subsequently independence after a period of "Calmanisation", but the clear preference coming from the white paper is to avoid that detour and go straight to "devolution max" where he would be well placed to create severe difficulties for unionist government within the UK leading ultimately to independence.

Devolution max

This option involves remaining within the UK but having control of a wide range of things which are currently reserved matters. People in Scotland would continue to have British nationality and to participate in UK affairs within the realms of defence and foreign affairs, to the budget for which they would presumably contribute, together with what the white papers refers to as "macroeconomic policy" and possibly some social protection and pensions, but aside from that they would set all of their own social priorities and most particularly determine most of their own taxation. On this the opaqueness of the white paper is most marked - one of the main levers of macroeconomic policy for the UK government is taxation. If that is taken away through devolution, the main macroeconomic lever left is the fixing of the Bank of England repo rate (sometimes called the bank rate); but this could not be devolved anyway without Scotland adopting its own currency, or acceding to the Euro (in which case the Scottish government would be subject to the rate fixed by the European Central Bank).

Let us then carry out a thought experiment with a system of "devolution max" of this kind in force which goes down the road that the SNP are charting. Were the Scottish government to become financially autonomous, responsible for raising its own taxation to meet its own expenditure, the UK parliament would only set taxation for the rump of the UK - England, Wales and Northern Ireland. It seems inevitable that members of the UK parliament elected for Scottish constituencies would no longer be able to vote in connection with the fixing of rates of taxes such as income tax and corporation tax applying outside Scotland, to which their constituents would not be subject: were they to do so, it would fly against the constitutional links between taxation and representation (in fact as I have mentioned even the much more modest Calman proposals raise issues concerning this constitutional link), and be grossly unfair to people in the remainder of the UK.

However, if there were to be a UK government dependent on its Scottish members for its majority, we could then be left with a UK government which could only wield a majority on matters of defence and foreign affairs but not on taxation. It could therefore be left unable to progress its policies on anything. It would probably be forced to march its Scottish members through the lobbies to force through taxation measures, and policies in all areas except defence and foreign affairs, which could not apply in Scotland. People in the remainder of the UK, and particularly in England, would probably not stand for it. Constitutional mayhem would result: and the pressure points leading to break-up could well come from England rather than Scotland.

The unionist parties

It is probably for this reason that only the Scottish Liberal Democrats have come out in favour of "devolution max" - or at any rate, Tavish Scott their leader has. Such is the chaotic state of Liberal Democrat policy making that, akin to the debacle over Vince Cable's mansion tax, no attempt has been made by them to address the wider issue of how the remainder of the UK could be governed in a way which would actually work in the event of "devolution max". Thankfully we do not need to spend too much time wringing our hands over this at the UK level as the Liberal Democrats are never going to be elected to government at Westminster to give effect to their policy. However, if they hold the balance of power in the Scottish parliament after the next Scottish elections they may turn out to be the SNP's version of the Bolsheviks' "useful idiots" in terms of assisting in passing a referendum Bill in the Scottish parliament. This surely must be one of Alex Salmond's hopes.

How the Tories would take this on depends on their leader at the time (which might not be David Cameron if the party fails to secure a working majority at the next election). David Cameron is wedded to the union but support for the union amongst the Tories cannot necessarily be assured in the future. A different leader might be open to the siren calls of Scottish fiscal autonomy notwithstanding the constitutional instabilities this would create. The post-Thatcher era has left the Tories as, in effect, an English party, so in that sense they do not have a great deal to lose.

The Labour party have the most at risk from "devolution max". They tread a delicate path requiring them to keep their Labour bases in Scotland and to a lesser extent Wales adequately rewarded on the one hand, and not being seen as an anti-English party on the other hand. "Devolution max" would mean they could stop worrying about dissatisfaction with the Barnett formula, but they show no signs at all of thinking about how to resolve the present constitutional anomalies arising from asymmetrical devolution, which would not leave them well prepared if faced with a situation where they had to deal with the problem of a successful "devolution max" referendum. Electoral dynamics also mean that it is only they (either with a small UK majority on their own part or in a Lib/Lab pact) who could end up in government faced with the constitutional dilemma to which I have referred, and one fears that their first and maybe last reaction would be to put their heads in the sand.

In consequence, neither the Labour party nor (in the short term) the Tories are going to go down the "devolution max" road. Were they to be manoeuvred by Alex Salmond into it, say via the Liberal Democrats in the Scottish parliament, I would not give the union more than a few years to survive. For Alex Salmond, job done.

Monday, 2 November 2009

More constitutional introspection

Scottish nationalist (with a small 'n') Gerry Hassan has another interesting article on England in his blog, and it seems to me to be one of the best analyses of the position that I have seen in a while. Whether he belongs to the party which would require "nationalist" to have a capital 'n' I don't know, but sometimes things are best done looking in from the outside, and this is a case in point.

I think the article speaks for itself but I would just make two points on it. First, I don't think that regional government within England is necessarily as he supposes a dead duck from the point of view of whether people in England would be willing to vote in favour of it (although it may well be a dead duck because of our political class at Westminster). The Prescott regional proposals offered virtually no meaningful devolution at all. A few highways functions would have moved from the government offices for the regions, but in the main what few functions the regional assemblies would have had (mainly transport and planning functions) came by lifting them from the county councils. It was pretend-devolution, and its overwhelming rejection in the North East region in 2004 resulted largely from the fact that local people saw through it. The other problem with the current regions is that they are formed from lines drawn on a map by civil servants with a view to making the numbers work out, rather than to reflect local identities or aspirations.

I may be unduly influenced by the fact that genuine regional government is my favoured solution (from that point of view I declare an interest), but I think that if a regional parliament and government were offered to three regions in England, namely the North, the Midlands and the South, with people having an opportunity to indicate which region they think they are in, and with powers at least as great as those available to the Welsh Assembly and government, I think there could well be support amongst the public at large. The sticking point in all this is the politicians. Try as they might (and they try very little), they are simply unwilling to give up power. Career Westminster politicians and Whitehall civil servants are just not willing to divest themselves of control over health, education, the justice system, local government, planning and the like in England (all devolved in Scotland and, apart from the justice system, in Wales and Northern Ireland also), and so leave themselves only with macro economics, immigration, the benefits system and foreign affairs as toys to play with.

Secondly, he suggests one tipping point for sentiment in England may arise if the next general election were to result in a hung Parliament with a UK government (say a Lib-Lab coalition) not formed of the party having a majority in England (the Tories), which would result in most contentious laws in England on devolved matters in effect being passed by virtue only of the votes of members outside England. I don't think in practice this is going to happen. I think by far the most likely outcome is that the Tories will have a working majority and will pass laws (possibly in conjunction with legislation to give effect to the Calman Commission recommendations) implementing Ken Clark's proposed solution to the West Lothian question.

I think the tipping point will happen further down the line. Let's say in an election in 5 or 10 years' time, we have a small Labour majority, or Lib-Lab coalition, forming a UK government but with a Tory majority in England. The temptation for a latter-day Gordon Brown to dismantle any provision for those in England introduced earlier by the Tories in order to get through his or her legislative programme so as to avoid having to reach compromises on devolved matters with a Tory opposition having a majority in England may prove irresistible. Whether the UK constitution could survive this strain on it is a matter for speculation; but I have little doubt that someone like Ed Balls would not let that dissuade him. Power easily goes to people's heads, and to some more than others.

Some may think I am unduly pessimistic about our political class. I hope that is true, but I doubt it (I remain even more shocked by the goings-on in 10 Downing Street revealed by the Damian McBride affair than I am by the Commons' expenses scandal, which has been well known for some time). Politicians are just like everyone else, with the same vices and virtues. An unwillingness to give up power which has been hard gained is one commonly shared human vice. For that reason I doubt that much will come of ventures such as Power 2010, chaired by Helena Kennedy who is a working peer in the House of Lords taking the Labour whip.

If one has to be a realist and therefore must abandon ideas of meaningful regional devolution in England, as I suppose one must do (and no regional devolution is certainly better than pretend regional devolution), we are therefore left with Gerry Hassan's thesis of there being a need to forge some form of English identity with progressive values. Whatever the outcome of all this, I suspect that in 20 or 30 years' time, Vernon Bogdanor's defence of the status quo will be looked on as laughable.

Forever young

I went to a concert last night which featured all of Focus, the Strawbs and Wishbone Ash. All were good, but Focus remained the most innovative with Thijs van Leer on Hammond (what bands still play a Hammond organ?) - and after seeing Pierre van der Linden I now know that I want to be a drummer when I grow up.

It is a reminder that like it or not (and many don't), those born in the late 40s and the 50s still set the agenda for much in the social, political and cultural scene. Isn't our likely next Prime Minister, David Cameron, a timid and air-brushed version of what we might have been heard 20 years ago, albeit still trapped by the right wing of his own party into insipid ineffectiveness?

But what of young people in Britain today? Very often marginalised, victimised and disposable. The UK was recently criticised by the UN's Committee on the Rights of the Child for its retrogressive (and ultimately self-defeating) approach to the young, and in particular in relation to the demonisation of teenagers. Treat young people as criminals and they will become criminals: yes, binge drinking by teenagers is problematic, but it is not answered by forever bringing in new criminal sanctions. Much of the blame probably lies in the anti-risk culture that has developed, which leaves the young deprived of all meaningful energetic interaction with the world around them, and results in the only release remaining to them being the creation of mayhem on Friday and Saturday nights when they reach an age to tell their elders to get lost. Policies need to be developed not to deprive the young of all creative physical and other impulses, but to channel them into socially acceptable forms free of the excessive regulation encouraged by well intended but socially destructive one-issue pressure groups. Perhaps we also have to be mature enough to realise that in life bad things sometimes happen, to the young as well as to the old, and it doesn't always mean that someone is to blame: but the unfortunate truth may be that we are some way from that.

Maybe a mature public debate is required about the role of risk in society, and how the balance is to be struck between attempts to eliminate all risk on the one hand (it can't be done, and were all risk to be eliminated then life would not be worth living), and the inevitable accidents and misfortunes which are going to happen on the other hand. Perhaps the judiciary need to be involved in this, with their propensity when faced with a hard case to find negligence in any situation.

And surely the use by some Councils and others of so-called "Mosquitos" - devices which emit unpleasantly loud high-pitched sound audible only to those under about 20 in order to drive them from city centres - comprises the most gross and improper interference with the human rights of the young? I challenge any reader and ask them, if your local authority had tried to oust you from town centres with these kind of techniques when you were in your teens, how would you have reacted? If your local council or other local organisations have installed them, why not start a local campaign against this disgraceful practice; all the better if some public spirited individual with the money to spare could combine this with the bringing of proceedings for public nuisance or judicial review against the bodies concerned. It might well lose, but the publicity might be worth the price, and it could just win.

David Cameron should get back to hugging a hoodie, not as a gimmick but by way of starting public debate on how the opportunities and challenges necessary for the healthy development of young people into productive adults is to be accomplished. That will mean listening and thinking, and admitting that it will be difficult to find the correct answer, and not marching into office with an "I'll fix it" attitude. Probably that is more than we can expect from any politician, but just as we cannot live without risk, so we cannot live without hope.

Saturday, 17 October 2009

Trafigura: The Sequel

I commented on the Trafigura affair in my earlier article Trafigura: Oil and law don't mix.

According to BBC reports, Trafigura through their solicitors Carter Ruck have released the Guardian from the injunction precluding them reporting on the preliminary report into the disposal of oil residues around the Ivory Coast which had apparently been procured by Trafigura from a technical adviser. A number of copies of the report (the "Minton report") are now on the web. Now that the preliminary report is open to the public, I can see that I was wrong to refer to disposal at sea. The residues referred to in the report and about which a dispute about responsibility arises were disposed of to coastal landfill sites around the Ivory Coast.

I have also now dug out a copy of the Parliamentary question against which the High Court issued a secret gagging injunction. It was thus:
Paul Farrelly (Newcastle-under-Lyme): To ask the Secretary of State for Justice, what assessment he has made of the effectiveness of legislation to protect (a) whistleblowers and (b) press freedom following the injunctions obtained in the High Court by (i) Barclays and Freshfields solicitors on 19 March 2009 on the publication of internal Barclays reports documenting alleged tax avoidance schemes and (ii) Trafigura and Carter-Ruck solicitors on 11 September 2009 on the publication of the Minton report on the alleged dumping of toxic waste in the Ivory Coast, commissioned by Trafigura.
Possibly one could just about take the view that releasing the Minton report might be prejudicial to the legal action they are thought to have brought for defamation against a broadcaster (although I doubt it - see further below), but it is astonishing that a judge of the High Court thought this innocuous PQ was such a threat to the judicial process that he or she needed to gag it, and gag it secretly. Probably not only astonishing, but also an outrage, given the public interest in openness in the administration of justice.

As I mentioned in my earlier article, the sub-judice principle rightly makes it a contempt of court to publish material in active proceedings likely to prejudice the fair disposal of those proceedings, and the principle is most commonly thought of in terms of criminal proceedings, although it also applies, as in the Trafigura case, to civil proceedings. The two main areas of prejudice which might arise from newspaper reports is prejudice to witnesses and prejudice to jurors. Given that the Minton report is a technical scientific report which would be the subject of expert evidence at any trial, and expert witnesses are first professionals and secondly would read the Minton report themselves in preparing their own evidence, it is unlikely that release of the report now could affect witnesses in the defamation action. Normally civil cases do not involve juries, which is why the sub-judice principle bears less heavily on them in comparison to criminal cases, but defamation proceedings are one of the two remaining classes of civil trial in which a jury may be requested to determine matters of fact. However, given that the Minton report would be compellable in civil proceedings (Trafigura could be required to produce it to the defendants and thus to the jury), any obvious substantial prejudice would be difficult to find.

But how could the PQ, which only names but does not extract the Minton report, be prejudicial? Possibly it might make it easier to find an illicit copy on the web by means of a Google search, but a knowledgeable searcher could equally well have searched on "Trafigura Ivory Coast oil report", and found it were an illicit copy available. It is ridiculous.

There are worrying indications that the High Court issues secret gagging injunctions without reasonable inquiry. Incidentally, I note that the BBC report says that "the legal firm Carter Ruck has written to the Guardian saying the paper should regard itself as 'released forthwith' from any reporting restrictions", but this is an order of the court not an order of Carter Ruck. This reduces the court to acting as mere agents of any applicant firm of solicitors who happen to produce an affidavit saying they fear prejudice.

If we had a written constitution then we would more clearly know that secret gagging orders should only be issued where there is such a compelling and exceptional case in the interests of justice to limit public knowledge of the case as to outweigh the public interest in the open and transparent administration of justice. If the courts have got into the habit of issuing secret gagging orders like confetti, they should step back, realise that there are constitutional issues at stake, and stop. If legislative intervention is necessary to secure this, Parliament should get to work on it. There is nothing, after all, party political in this.

Thursday, 15 October 2009

Trafigura: Oil and law don't mix

The Trafigura affair, creditably taken up by the Guardian newspaper and raised in Prime Minister's questions yesterday, is interesting. It involves what has been referred to as "secret injunctions" or "super injunctions". A secret injunction is similar to a normal injunction, namely an order of the court issued to a person requiring that person to do or not to do something, but it is coupled with a further injunction requiring that person not to divulge (except to the person's legal adviser) that the injunction has been issued and what it relates to.

The background

Trafigura are an oil-trading company and are the subject of proceedings by affected people in West Africa concerning an alleged releasing of oil sludge residues at sea, a matter which it must be said is still to be proven one way or the other, but is at least a matter of public knowledge. The English dimension arises because Trafigura also appear to have brought defamation proceedings in England against a broadcasting enterprise which has referred to the affair. Trafigura appear to have persuaded a judge in the High Court (the identity of whom also appears to be a secret) that a secret injunction should be issued in the case preventing reporting of the defamation proceedings on sub-judice grounds. I say "appear" here and further below because the secrecy requirements make it difficult to know exactly what is going on.

Not unreasonably, there was some concern about the court-sanctioned gagging going on in this case. Paul Farrelly MP tabled a Parliamentary question about it to Ministers in order to draw attention to this, and probably also to circumvent the gagging in the hope that newspapers would report on the Parliamentary question. In response Trafigura went a step further, entirely logical if you accept the premise that secret court proceedings are acceptable in a democracy, of obtaining a second secret injunction, this time preventing reporting by the Guardian newspaper and possibly others (as it is secret we don't know) of the Parliamentary question.

Sub-judice

One of the issues lying behind the injunction is therefore that of sub-judice. The sub-judice principle, of common law origin but now found in statute (most recently in the Contempt of Court Act 1981), makes it a contempt of court to publish material in active proceedings likely to prejudice the fair disposal of those proceedings. The principle is most commonly thought of in terms of criminal proceedings, although it also applies, as in the case in question, to civil proceedings. Of itself, the sub-judice rule is necessary in any society that wishes trials to be conducted fairly.

However two additional elements have entered into the Trafigura affair. The first is the increasing readiness of the judiciary to issue secret injunctions preventing mention being made of legal proceedings and the parties to them, particularly in defamation and privacy cases. It may well be that there are instances where mere mention of a defamation case may aggravate the defamation, or may prejudice the proceedings, but they must be few in number and it is difficult to see how that could apply in this case. If the Trafigura matter highlights this growing trend and prompts legislative intervention in the way the courts conduct the practice, that may not be a bad thing. There is a matter of public interest at stake here, namely the principle that all legal proceedings should be as open as is practicable and consistent with justice, to which it appears too little weight may be being given on occasions by the High Court when dealing with privacy and defamation cases. One of the weapons of the police state is the secret trial.

Parliamentary privilege


The other aspect is that of Parliamentary privilege. Despite suggestions to the contrary, the issue by the court of the injunction, whilst appearing to be ill-judged, did not breach Parliamentary privilege. Article 9 of the Bill of Rights 1689 provides that "the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament". This prevents courts or others involving themselves in proceedings in Parliament, and gives absolute immunity to things said and done in Parliament. However, the question that sometimes arises is what are "proceedings in Parliament" protected by article 9. It has been held for example that the article does not include most correspondence between members and Ministers on constituency matters, and in the well-known case of Stockdale v Hansard (1839) 9 Ad & El 1 it was held that whilst papers published internally within Parliament relating to Parliamentary business are protected, publication of them outside Parliament by order of the House is not. (The Stockdale case in fact concerned publication by order of the House of a report into Newgate prison which alleged the circulation there of pornographic material.)

In response to the Stockdale decision, Parliament duly enacted the Parliamentary Papers Act 1840. This confers absolute privilege in any proceedings, including defamation and contempt of court, whether criminal or civil, in respect of the publication or copying of any document or paper published by order of the House, and qualified privilege (that is, privilege in the absence of malice or other improper motive) in respect of the publication of any fair summary or extract of the document or paper.

The making of a Parliamentary question to a Minister, including a written one (the vast majority of Parliamentary questions are written), and the making of a reply by a Minister, are undoubtedly proceedings in Parliament for the purposes of article 9. However, it is also clear from the Stockdale case that the further publication of the Parliamentary question outside Parliament is not. Likewise, unless published by order of the House as one of the papers of the House, it is not protected by the 1840 Act either, and it appears that although all Parliamentary questions are published on-line on Parliament's website, there is no formal order of the House that that should be done - I think, although I stand to be corrected if I am wrong on that point of fact.

Assuming there is no such general order of the House for publication of Parliamentary questions - and it would be interesting to see if the judge actually inquired into this - the issuing of the injunction against publication of the particular Parliamentary question relevant to the Trafigura case was within the legal competence of the judge in question. What one must question however is whether in the exercise of that power he or she was right to take the view that the making of the secret injunction was justified on the merits, given the public interest in openness in legal proceedings.

Friday, 11 September 2009

A posthumous apology

A letter from Gordon Brown was published in the Daily Telegraph today which comes as close to an apology for the treatment of Alan Turing as it is possible to get, short of a pardon under the Royal Prerogative, which was not (it appears) given.

Turing was a mathematician who prior to the second world war worked in academia, first at King's College, Cambridge as an undergraduate and then in post-graduate mathematical research, and more importantly subsequently at Princeton, where he demonstrated that a programmable computation machine, now called a universal Turing machine (or a "computer" to you and I), could perform any mathematical computation with appropriate algorithms. (Not that it can be proved formally that all mathematical problems involving natural numbers can be solved by applying mathematical axioms, and therefore by a universal Turing machine applying computational algorithms; it is one of life's better jokes that an arithmetical outcome can be true without being provably so). He has given his name to computer science: if a particular set of algorithmic abilities comprised in a computer programming language is capable of solving all solvable mathematical computations, it is said to be "Turing complete".

Returning to the UK shortly before the outbreak of war and joining the Government Code and Cypher School, he was one of the team of brilliant young men who gathered at the then secret Bletchley Park establishment and achieved the remarkable feat of building machines (not initially Turing complete machines) breaking the high quality German cypher codes which they considered to be unbreakable. The fact of the matter is that for at least half of the second world war, the allied powers knew exactly what their enemies were doing on all important matters, giving an enormous advantage that certainly shortened the war considerably even if it did not ultimately change the outcome (I would not want to venture a view on that).

Alan Turing featured prominently with other codebreakers in the somewhat surreal and mostly fictional book Cryptonomicon by Neal Stephenson, a somewhat long but interesting book which is worth a read for those who have not yet tackled it.

Alan Turing was homosexual. He was convicted (as was Oscar Wilde some years earlier) of gross indecency in 1952. As an experimental treatment in place of imprisonment he was offered hormone treatment sometimes referred to as "chemical castration". What was thought to be achieved by such a "cure" is difficult to say, but it was sufficient to cause him to die by cyanide poisoning two years later, apparently by his own hand, having had his security clearance removed in consequence of his conviction which meant he had to give up his government cryptography work (although he was able to carry on his teaching and research).

Some have criticised the apology as political posturing, on the grounds either that it is past history that cannot now be corrected and that all was done in accordance with the norms of the time; or that if one is to apologise for one conviction of this kind, one has to apologise for all of them. However, in my opinion it is an apology that is richly deserved. Sometimes services to one's country require formal steps that may not be capable of being offered to everyone, particularly where those services contrast with the appalling treatment he received. Whatever one thinks of old-boy networks, it is a shame that it was not enough to cause the matter to be quietly forgotten, as it probably would have been at an earlier time (Oscar Wilde would probably have been left unmolested had he not instituted libel proceedings). Maybe the prosecution occurred either 30 years too late or 30 years too early.

Perhaps now a proper posthumous pardon and a statue in a London square? Or perhaps some government support for the Bletchley Park rescue project and museum.

Thursday, 10 September 2009

Laying the ghost

There have been two "Oh my Gawd" moments for me in the last 10 years so far as concerns public affairs. The first was the decision of the Blair government to support and participate in the invasion of Iraq. This is not hindsight speaking: even if there were weapons of mass destruction (as I wrongly and now it appears naively supposed there must be), I was opposed to it on the ground first that you cannot simply invade someone else's country, arguably even with and certainly without a clear United Nations mandate so to do, and secondly because occupations always end in tears which affect those who receive the invasion as much as those who inflict it. You cannot in practice run other people's countries for them, and things go sour quickly.

The second was the decision in 2006 of the Football Association to appoint Steve McLaren as the manager of the England football team. For me, the final evening in the rain in November 2007 when the Croatia national team put us out of Euro 98 was a culmination I had feared and expected. There were so many other better candidates for the post in 2006: if you wanted to go English, Sam Allardyce (who had not then suffered some of his subsequent misfortunes but I still think has real ability), if you wanted to go British, Martin O'Neill (my personal favourite for the job), or if you wanted to go international many other candidates than Scolari who the FA tried and failed to land. Unlike my view on Iraq, most of my friends and acquaintances shared my misgivings and thought Brian Barwick had simply got it wrong.

When the draw for the European groups for the World Cup 2010 was made, with England (as no 2 seed in the group) and Croatia (as no 1 seed) in the same qualifying group, this seemed to me to be a real opportunity to lay the ghost to rest, and so it has proved. My hopes have been exceeded: what a fantastic display last night of high speed, killer football.

Brian Barwick must have something going for him - you cannot be controller of sport for ITV for 16 years without having a good measure of ability - but whenever I heard the two speak after he became Chief Executive of the FA and Steve McLaren became manager, and they seemed to speak quite often, they both seemed only to be able to talk in clich├ęs which were banal even by football's standards.

By contrast, Lord Triesman seems to have a gift for reading people's ability and (in his treatment of Brian Barwick) a suitable quantity of ruthlessness and singlemindedness. Once taking over the position of Chief Executive as well as Chairman he seems to have been mainly silent, and Fabio Capello has a satisfyingly Italian grasp of English. The success of the football team has been inversely proportional to the words uttered.

Well done to both of them, and to all the players.

Friday, 28 August 2009

The Quality of Mercy

The furore over the release of Abdelbaset al-Megrahi, the only person convicted of involvement in the bombing of Pan Am Flight 103, which crashed near Lockerbie in Scotland in 1988, killing all 259 on board together with a further 11 people on the ground onto whom parts of the aircraft fell, continues. This is the kind of thing which seems to happen to governments and Prime Ministers on the run, and given that the crew and most of the passengers were from the United States, the response of the US government is understandable. Understandable, but not necessarily right.

The release was made under the powers of the Scottish Justice Minister in section 3 of the Prisoners and Criminal Proceedings (Scotland) Act 1993, an Act of the Westminster Parliament, which permits the Minister to release a prisoner in Scotland on compassionate grounds after consulting the Scottish Parole Board. Prior to devolution under the Scotland Act 1998, this power was vested in Ministers of the UK government, in practice the Secretary of State for Scotland, but post-devolution it is now vested in Scottish Ministers. There is similar power available to the UK Minister of Justice (Jack Straw) in relation to England and Wales. Both these statutory powers are a restatement of the Crown's pre-existing prerogative of mercy, one of the remaining aspects of the Royal Prerogative.

Mr al-Megrahi is said to be suffering from terminal prostate cancer and has only a short time to live. The Scottish Justice Minister, Kenny MacAskill, appears to have gone about it the right way, as he made his decision after considering all the circumstances and listening to the views of the Scottish Parole Board. Someone had to make the decision and he made it. I have not seen all the evidence, but personally I have considerable sympathy with the decision that Mr MacAskill made and I think he was quite probably right. With all honesty, if Mr al-Megrahi had been tried, convicted and imprisoned in England, I would not have trusted Jack Straw to have made a better one. In fact, I would rather put my money on Mr MacAskill to make a good decision than Mr Straw.

The press have raised a number of issues about this in the context of devolution. One might have expected a decision having an effect on foreign relations and creating international controversy to have been taken by the UK government. Undoubtedly, though, the power in section 3 of the 1993 Act is now vested in Scottish Ministers and was a decision for Mr MacAskill to make. Could Gordon Brown or the Foreign Secretary (David Milliband) have intervened? They could certainly have expressed a view, but Ministers of the UK government could not formally have intervened in any legal sense without changing the law and in particular either amending the Prisoners and Criminal Proceedings (Scotland) Act 1993 or the Scotland Act 1998.

It should be remembered however that the Westminster Parliament still retains full legislative authority throughout the UK - the vesting of powers in the Scottish Parliament on devolved matters did not extinguish those of the Westminster Parliament on those matters. But for Gordon Brown to have intervened as a matter of law rather than exhortation with a view to stopping the Scottish Justice Minister releasing the person concerned, the Westminster Parliament would have needed to have been recalled and an emergency Act passed overriding the rights of the Justice Minister. The UK government would never have succeeded in this, even if they were to have wanted to, which they did not. The Lords would have stayed on holiday for one thing. In addition, a majority in the House of Commons would never have voted in favour of overriding the devolved government in this way. Furthermore, under the Sewell convention it would only be in the most unlikely and unusual circumstances that the UK Parliament and government would intervene on a matter within the competence of the Scottish Parliament - it would probably require a failure of all effective government in Scotland before anything like that would happen.

The press have been referring to the fact that Scotland has "a separate legal system" as a clue to how it is we have reached where we are, as did Jack Straw three days ago, but all that that in fact means is that Scotland has not by virtue of the union acquired English common law, either on civil or criminal matters, nor vice versa as regards England/Wales in relation to Scottish civil law. Scottish civil law is in some respects and particularly contract law (the law of obligations) rather closer to a continental civil law than a common law system, but subject post-1998 to the Sewell Convention as described above, the law in Scotland can be changed or added to by statutory provision made at Westminster in the same way that the common law can in England, and as it frequently was between 1707 and 1998, and as now can be done by the Scottish Parliament after 1998. Scottish civil law was as it happens irrelevant to the Scottish Justice Minister's decision, which was taken under statutory powers.

From the Scottish perspective, Gerry Hassan has an interesting view on Lockerbie here which I would generally agree with and which is well worth a read. He suggests that those outside Scotland are ignorant of devolution and its effects, and that "this ignorance, this absence of an understanding of Scotland and the nature of the union, matters, and matters when it spills over into in places to uncontrollable rage and fury at a small nation and polity daring to do things differently".

Ignorance there may be, but I do not think he should be too critical of those south of the border, so far as concerns the press or the ordinary man or woman in the street at least. It seems to be government policy not to remedy that ignorance within England for fear of stirring feelings in those living there that they may like some of it too. When, for example, the government refers in its policy papers to its policies for Britain they are often in fact, by virtue of devolution, either its policies for England and Wales or for England alone. That appears to be deliberate, rather than ignorance within government of the effects of the government's own devolution legislation, and represents a kind of obfuscation arising from a sublimated fear of the West Lothian Question.

This may also lie behind some of the curious silence from Gordon Brown on Lockerbie: viewed from the perspective I have mentioned, the less he makes of it the better. Personally, however, I think the government needs to be maturer than that and to trust the judgement of those in England. That is going to have to happen at some point in the future.

Saturday, 18 July 2009

House of Lords Committee on the Barnett Formula

The House of Lords Select Committee on the Barnett Formula (the Richard Committee) published its report yesterday. The Barnett formula is the formula which distributes block grant to the devolved administrations in Scotland, Wales and Northern Ireland for the funding of devolved matters. It does this mechanically, by apportioning a percentage of any increase of expenditure in England in any financial year on those matters to the block grant paid to the devolved administrations.

The Committee recommend that the Barnett formula should be scrapped and a needs based formula substituted for it to distribute funding on devolved matters. The Committee have come up with their own formula based on a combination of the relative number of infants (under 5s), children (5s to 16s), pensioners (over 65s), the level of child poverty, household income, unemployment, disability, and mortality rates. It concludes:

"The main points of note here are as follows:

  • On most measures, the levels of relative need in England and Scotland are quite similar (that is, the blue and the white lines are usually quite close to one-another). England has slightly higher levels in matters to do with children and poverty and Scotland has much higher levels regarding disability and mortality.
  • With the main exception of mortality, need in Wales is usually higher than in Scotland (that is, the red line is usually outside the blue one).
  • Reflecting its young population, need in Northern Ireland is high on the children measures and low on the pensioner measure. In this combination of highest need on some measures and lowest need on others, Northern Ireland is unique."

In comparison with the Barnett formula, the general effect is that on the Committee's needs measure, people in England would not see their position changed to any great extent in terms of share of overall UK resources, people in Scotland would see less, people in Wales would see more (although even now they receive more per capita than do those in England albeit less than Scotland) and I am not clear about the position on Northern Ireland - the Committee's proposal is probably broadly neutral for Northern Ireland because the administration there already receive considerably more per head than the rest of the UK under the Barnett formula. Broadly therefore, the Committee's proposed formula would transfer some of Scotland's block allocation to Wales.

What is the chance of this being implemented? Next to zero. The Treasury are against the changes: their spokesman said about the report "The Barnett formula has served the UK well over the years. It has proved to be a robust mechanism for allocating spending to the devolved administrations and has stood the test of time". This reflects Treasury evidence given to the Committee. Whilst David Cameron has recently made some noises about looking to revise Barnett, he has also said that this ought to be on the basis of consensus and generally agreed principles.

It would be unfair to label the Committee's proposed needs formula by reference to the axiom "Garbage in, garbage out". But any particular outcome under the Committee's proposals is highly dependent on what indexes of "need" are chosen and how they are measured. The Committee suggest that respective needs can be settled in accordance with recommendations made by a new "independent" UK Funding Commission. The problem is both that such a Commission could never and should never be independent because any needs-based funding formula requires taking a view on social priorities, which would inevitably and rightly have to be subject to political control, and that the temptation for politicians to tweak the inputs to achieve previously determined and desired outputs would probably be irresistible. By contrast, the Barnett formula is purely mechanical - find out what the uplift or reduction in England in any financial year has been on devolved matters, and apply a proportion of the same uplift or reduction to the block grant to the devolved administrations.

But the main problem, and the one probably causing the Treasury to pour cold water on it, is the likely impossibility of achieving agreement. First, the Committee's approach would not cater for those in England who, rightly or wrongly, see themselves as unfairly treated (an overlooked majority) as a source of subsidy for the rest of the UK. Secondly, there is no way that the Scottish government will do anything other than oppose it - their "remedy" to the Barnett formula is fiscal autonomy for Scotland. Thirdly, it is difficult to see the Tories, with their miserable Scottish representation, wanting to reignite claims that they are an "anti-Scottish" party by cutting Scottish block grant in comparison with the rest of the UK as one of their first actions should they take office after the next general election, particularly as all devolved block grants will almost certainly be cut anyway in proportion to the ramping down of UK public expenditure from next year to cope with the ballooning of the national debt. Fourthly, any tweaking of funding arrangements within the UK is likely to give rise to fresh calls for some of the other constitutional anomalies affecting England to be remedied, which the current Labour government would like to avoid in their own self interest, particularly as in the lobbying that would inevitably be made to the proposed independent Commission with respect to how funds should be shared out, someone somewhere would need to be seen to be standing up for people in England in the same way that the devolved administrations would undoubtedly stand up for their own people.

The fact is that devolved government has heightened sensitivities between the constituent parts of the UK and this has resulted in the making of revisions of the Barnett formula having become too hot a political potato to handle. "Do nothing" would probably be the favoured course for any government in the forseeable future.

Saturday, 4 July 2009

Parliamentary Standards Bill

The government introduced the Parliamentary Standards Bill into the House of Commons on 23rd June. It completed its Commons' stages and passed to the House of Lords on 2nd July.

It has been criticised by some newspapers and commentators as a piece of poorly conceived legislation given inadequate Parliamentary time. Some have even claimed that it is a constitutional affront to Parliament. Some have rejoiced over the loss at Report stage of clause 10 of the Bill as introduced (see further below on clause 10). These criticisms appear to have been formed on the basis that the Bill comprises an inadequately considered knee-jerk reaction to the Parliamentary expenses scandal, but in my view they are for the most part unwarranted and, in the case of clause 10 of the Bill, based on a lack of understanding of the legal and constitutional background. The Daily Telegraph came up with an editorial on Thursday which was vastly overblown, and which I analyse a little further below.

That is not to say that the Bill has not been improved during its Committee and Report stages in the Commons: it has, particularly in relation to the proposed new MPs' code of conduct relating to financial matters, which was sketchily dealt with in the Bill as first introduced. But as passed to the Lords it seems to me to be in a workmanlike shape, or rather will be once clause 10 is reinserted in the Lords, as surely needs to happen for the reasons mentioned below.

What the Bill does

The Bill as passed to the House of Lords does three main things:
  • it creates the Independent Parliamentary Standards Authority
  • it creates the office of Commissioner for Parliamentary Investigations
  • it creates new offences concerning the conduct of MPs
The IPSA has the role of setting the allowances (ie expenses) that members may claim in relation to the carrying out of their duties by reference to a scheme which it is to prepare after appropriate consultations. It is to be noted that although the IPSA would pay MPs' salaries, it would not be concerned with determining their amount, which will continue to be set by resolutions of the House itself. Likewise, the IPSA is not concerned with MPs' pensions.

In addition the IPSA is to prepare a code of conduct for MPs' financial interests, also after appropriate consultations. The Bill requires that the code should include provision stopping MPs being "bought", such as by speaking or advocating for a person or body for payment, and for a register of MPs' financial interests. Members will retain a role in relation to the code prepared by the IPSA, because under the Bill it has to be approved by resolution of the House before it comes into force. That seems to me to be a reasonable balance.

The Commissioner is responsible for investigating whether breaches of the code on financial interests have occurred. The IPSA can require a member to repay sums found by the Commissioner to have been wrongly paid. The procedures to be followed are to be set down by the IPSA.

While failures to comply with the code will be punishable by the House, not all failures will comprise criminal offences. The Bill provides for new offences where a member knowingly makes a false claim, indulges in improper paid advocacy or fails to register an interest required by the code. The first of these (false claims) is at first sight odd, because subject to Article 9 of the Bill of Rights, which I deal with further below, deliberately making false expenses claims would generally already be an offence under the Fraud Act 2006.

The creation of the new Independent Parliamentary Standards Authority and a separate office of Commissioner for Parliamentary Investigations is intended to separate the roles of propounding the rules of conduct applying to members and the investigation of failures to comply with it. It is for debate whether this separation is necessary but it cannot it seems to me to be a source of criticism apart from perhaps being overly complicated. At best it emphasises the impartial nature of the investigation of MPs' conduct; at worst the separation does nothing very much. I would hope that by now most are of the view that it can no longer be left to MPs acting together to police themselves - doctors and lawyers, for example, have no longer done so far a number of years.

Clause 10

Clause 10 of the Bill as introduced said this:

"No enactment or rule of law which prevents proceedings in Parliament being impeached or questioned in any court or place out of Parliament is to prevent—
(a) the IPSA from carrying out any of its functions;
(b) the Commissioner from carrying out any of the Commissioner’s functions;
(c) any evidence from being admissible in proceedings against a member of the House of Commons for an offence under section 9."

This clause is intended to override, for the limited purposes stated, Article 9 of the Bill of Rights 1689, which provides "That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament"

The Daily Telegraph said this about it in an editorial:

"MPs would have dispensed with one of the foundations of parliamentary democracy: the privileged protection afforded to Members to speak their minds in the Chamber without fear of prosecution in the courts. It is not suggested that MPs should be above the law of the land, which, after all, they set and to which the rest of us are subject; and there is a clear need for tighter controls to prevent MPs misusing their allowances. But that is not an argument for wholesale constitutional upheaval."

Clause 10 would cause no constitutional upheaval of any kind. On its terms, were the editorial writer to have troubled to read them, he or she would have found that it would not affect the immunity of members when speaking their minds in debates. The exclusion of Article 9 only related to matters done by the IPSA or the Commissioner (not members) and to evidence brought in prosecutions of members for an offence of making false claims of expenses, failing to register interests or conducting paid advocacy.

One of the problems of Article 9 of the Bill of Rights is that what comprises a "proceeding" in Parliament which benefits from its protection is not clear. We know on the one hand from decided cases on defamation that it does not include most correspondence a member has with his or her constituents; and on the other hand it clearly covers things said in the House or one of its Committees, and also papers distributed to Committees. There is a large grey area in between. Arguably Article 9 might prevent MPs' expenses claims from being investigated by the Commissioner or, following such an investigation, a prosecution being brought where the claims were found to be fraudulent, and it would make no sense to make these new offences in the Bill subject to such hazards which might prevent any satisfactory prosecution. Article 9 would almost certainly prevent prosecutions of MPs relating to the new offence of paid advocacy, except in so far as the Bill is to be treated as impliedly overriding Article 9. Why leave it to implication?

My main complaint about this aspect of the Bill relates to the new offence of making false expenses claims. But for the Article 9 point, if proven this would already comprise an offence under the Fraud Act 2006, and the 2006 Act has a higher penalty than does an offence under the Bill. Rather than this particular new offence being provided for, it would be better in my view for the Bill to override Article 9 in respect of evidence relating to any offence arising under the 2006 Act relating to an MP's allowances, so permitting a normal fraud prosecution to be brought.

I do not necessarily object to members still being able to set their own salaries - someone has to do it. But nonetheless I think the manner in which salary recommendations are prepared and on which the House will resolve should be more clearly set out. They should in my view be subject to independent recommendation and review notwithstanding that the final decision may remain with members of Parliament.

Friday, 26 June 2009

The cycle of life

It is only in the second half of my life that I have grown to like dogs. There were two things which persuaded me in the end: first, the invention of "pooh bags" and the bins for them introduced by local Councils in their parks (full marks to the work done by the local authorities and doggie organisations on this), which mean that dogs do not have to create an unpleasant and unhygienic mess, and secondly my younger son who wrote me an essay setting out 20 reasons why we should get a dog.

Our family dog Midge died 6 weeks ago, after a lengthy illness with Cushings Syndrome (she was an Affenpinscher, and you will see why she was called Midge from the picture). We have all felt immense grief: despite her small size she packed a big punch in character, playfulness and affection. For the nearly 9 years she was with us, she was one of the family, doing what we did and accompanying us on our outings. A picnic on a nice summer's day will never be quite the same without her.

The good memories remain, but happily as time moves on the grief diminishes. We have just taken on another dog Clarrie, seen in the picture on her first trip to the pub. She was a rescue dog from the RSPCA, mostly Staffie with a whiff of something else (she is a bit too small to be a full-blood Staffie). She is about one year old, and despite her difficult early life she is equable, friendly and definitely likes people and their companionship. We have her booked into the dog therapist next week, but there don't seem to be many snags to be addressed. She is also fast - on our nearby cycleway (a disused railway line) she can run as fast as I can cycle.

I was impressed by the business-like approach of the RSPCA to their work. I have been one of those who have sometimes felt a bit uncomfortable in the past about the attention and resources some devote to animals, given the awfulness that life offers to some of our fellow human beings around the world. On the other hand dogs can be real friends, both to families and to those living alone, and family pets can help children develop their skills in receiving and giving affection. I strongly suspect also that the people who would be cruel to animals are probably the same people who would be cruel to their fellow human beings, including children. The decent treatment of animals seems to be part of what being civilised is about. I suppose what is needed is a balance in all things.

Wednesday, 17 June 2009

Calman, taxation and representation

In my earlier article on the Calman report, I suggested that the proposal of the report that national rates of income tax as fixed by the UK Parliament should be 10% lower in Scotland than in the remainder of the UK, with the Scottish government and Parliament having the power to make up that missing 10% (and more) with a Scottish income tax to whatever degree it thinks fit, was a sleight of hand with respect to Scottish nationalists.

It is worth mentioning that the same is probably true in relation to those in England or Wales who are concerned by the West Lothian Question, or more generally by constitutional issues concerning the link between taxation and representation.

One of the outcomes of the English civil war was that it finally established that no taxation could be imposed without the authority of Parliament. The King could no longer tax in reliance on the Royal Prerogative, a matter which caused great difficulties to Charles II's administration after the Restoration. This was further entrenched in the Bill of Rights 1689 following the Glorious Revolution, Article 4 of which provides "That levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal".

The need for a link between taxation and representation also formed one of the calls to arms of the revolutionaries in the War of American Independence. The revolutionaries objected to being subject to taxes, and in particular stamp and excise taxes, without representation within the body which fixed them, namely Parliament. In doing so they relied on the Parliamentarian cause in the Civil War that "what an English King has no right to demand, an English subject has a right to refuse" (from the case concerning the extension of Ship Money) and on the rights established by Article 4 of the Bill of Rights. In the period before the outbreak of the Revolutionary War in America, the colonists in objecting to such taxation saw themselves as asserting their rights in defence of the British constitution and the Bill of Rights, rather than acting to subvert that constitution.

The effect of the Calman proposals is that MSPs in the Scottish Parliament must set the rate of income tax for those in Scotland, with the proviso that it is not to be more than 10% below the rate set for the rest of the UK by the UK Parliament (they can set it at any amount above that rate). Since it is pretty well inconceivable that a Scottish government would want to fix a rate of income tax more than 10% below the rate applying elsewhere in the UK, this limitation could be seen as a fig leaf to justify members of the UK Parliament for Scottish constituencies continuing to have a say on the rates of income tax applying outside Scotland. Likewise, the inability of the Scottish Parliament under the proposals to change the differential between higher and lower income tax bands might also be as much to do with keeping some link to the rates of income tax fixed for elsewhere in the UK for West Lothian purposes as with a desire to save the rich in Scotland from unwelcome depredation.

In any event, under the Calman proposals there would be no link to UK rates, for stamp duty land tax, airport passenger tax, aggregates levy and landfill tax applying in Scotland.

Of course, the call of "no taxation without representation" is not necessarily synonymous with "only those representing those paying it are to determine the amount of a tax". What one can say though is that the proposal that the Scottish Parliament should set the rates of income tax, stamp duty land tax, airport passenger tax, aggregates levy and landfill tax applying in Scotland rather than the UK parliament raises constitutional issues for the UK which somewhat belies the Calman Commission's view that it does not need to consider the West Lothian question in making its recommendations, and that it only need concern itself with the position of those in Scotland.

The UK government appears to be taking the line that no referendum in Scotland is required to give effect to the Calman proposals on tax, given that there is already a power for the Scottish Parliament to vary income tax by 3% upwards or downwards so that the principle has already been established. (The original 1998 Act referendum in Scotland covered whether this since unused 3% power should be conferred or not).

However, there is cause to consider whether for constitutional reasons it would be desirable for there to be a referendum within the rest of the UK on the assymetrical taxation autonomy which is now proposed in the report.