The Withering Vine

The make-up of the Commission on the West Lothian Question

2012-01-18T15:14:00.001Z

The government announced yesterday the composition and terms of reference of the Commission on the West Lothian Question.

When Mark Harper made his statement to the House on 8th September last year in attempting to kill off Harriett Baldwin's Legislation (Territorial Extent) Bill, he explained the Commission's remit in these terms: "The Government are clear that the commission's primary task should be to examine how this House and Parliament as a whole can deal most effectively with business that affects England wholly or primarily, when at the same time similar matters in some or all of Scotland, Wales and Northern Ireland are lawfully and democratically the responsibility of the separate Parliament or Assemblies."

The terms of reference for the Commission announced yesterday are slightly different, namely "To consider how the House of Commons might deal with legislation which affects only part of the United Kingdom, following the devolution of certain legislative powers to the Scottish Parliament, the Northern Ireland Assembly and the National Assembly for Wales." The earlier proposed limitation to "effectiveness" would have made the the Commission's task pointless, because if efficiency were the only criterion, to the exclusion of other things like fairness and basic common sense, things could be left as they are.

The membership of the Commission is quite heartening. It includes both the current but shortly-to-retire First Parliamentary Counsel, Sir Stephen Laws, and his predecessor, Sir Geoffrey Bowman. First Parliamentary Counsel heads the Office of the Parliamentary Counsel, which is the office which drafts public Bills and is composed of clever and able individuals. I have long thought that those who are opposed to solving the West Lothian Question have over-egged the difficulties of establishing a drafting convention for the division of Bills into different Parts for their different territorial extents, and having two former heads of that Office in the Commission will I hope put that to rest at least. It was also good to see that Professor Victor Bogdanor is not a member of the Commission, as one of those prone to such over-egging.

As readers of this blog will also know, I think requiring a double majority at 3rd reading for any Part of a Bill with limited extent, one for all (UK-wide) members and one for those representing the actual extent, is a viable solution to the WLQ, and such a double majority requirement would meet the objection of those who argue that the whole of the UK has an interest in much England-only legislation via the Barnett formula (an argument which I think is anyway greatly overstated by its proponents, for reasons given in other articles in this blog). So far as concerns the argument that governments with slim majorities depending on Scottish members could not govern in England, it would be possible to borrow from practice with respect to the House of Lords, so that the absence of a territorial majority could, say, delay a Bill for a Parliamentary session (a year) but not defeat it: but better still, and as startling an idea as it might be, UK governments could actually try negotiation and compromise on those occasions when they lack a territorial majority.

One problem I foresee is the late reporting time of the Commission, which is to be "next session", that is 2013. Constitutional issues are moving so fast at present, that I would have liked to see it report by the end of this session.

The other problem is the limited nature of the Commission's remit. A double-majority solution of the kind I have outlined seems the most likely outcome, but it is one that will be overtaken by events should Scotland move to "devolution max" following a referendum in 2014. If and when Scotland becomes autonomous on all matters except defence and foreign affairs, and in particular once it can decide its own taxation, it would be unacceptable for Scottish members to decide taxes, such as income tax, in the remainder of the UK to which their constituents could not be subject; and the kind of voting finessing to which I have referred could not adequately deal with this. But I guess one can only deal with the position which pertains at any one time.

Binding referenda

2012-01-11T11:33:00.005Z

On reviewing coverage of yesterday's announcement by Michael Moore about the the proposed referendum on Scottish independence, there seems to be a view propagating that a referendum carried out in accordance with his proposals, by means of an order under section 30 of the Scotland Act 1998, would be "binding" in a way that a referendum carried out by the Scottish government without such an order would not, so that the section 30 order approach is to be preferred.

In my view that is wrong. Neither approach would be "binding" in any legal sense; and each would be "binding" in the real world of politics.

It is possible to have legally binding referenda. To be legally binding, once the referendum result is known there has to be an answer to the question "What next?" which has ascertainable legal consequences which are capable (if need be) of enforcement in a court of law. Last year's referendum on whether the Welsh Assembly should obtain legislative powers under Part 4 of the Government of Wales Act 2006, similar to those of the Scottish parliament, was binding for example. By contrast the pre-legislative referendum on the Scottish parliament held in 1997 was not. The successful outcome in that referendum placed a political commitment on the incoming Labour government to consult on and prepare legislation for such a parliament, which it duly did in the form of the Scotland Act 1998. It conferred a political mandate, and imposed a political duty, to prepare something (a Bill) which would if and when enacted have a legal effect.

The same is true of the proposed referendum on independence. If successful it would impose a political but not legal commitment on the UK government to negotiate terms for independence with the Scottish government. The terms, once negotiated, would require a further enactment by the UK parliament dissolving the union in accordance with the agreed terms. The sanction, were the UK government to fail to enter into such negotiations, would be for the Scottish government to make a unilateral declaration of independence.

A section 30 order does not therefore make the referendum any more or less binding. What an order would do is remove any doubt about whether the Scottish parliament and government are within their powers to hold this (politically but not legally binding) referendum.

Michael Moore's statement

2012-01-10T23:27:00.008Z

Michael Moore made his statement to the House of Commons today. He stated that the coalition government thinks that the holding of a consultative referendum on independence is outside the powers of the Scottish government and parliament. The UK government proposes to make it within those powers by means of an order under section 30 of the Scotland Act 1998, but on its (the coalition government's) own terms. These terms relate both to the question to be put (and it would be a single Yes or No question not encompassing "devolution max" and avoiding ambiguous wording on the Quebec model), and also timing ("sooner rather than later").

It appears that the phony war is now over, but I do not intend in this article to deal other than in passing with the wisdom or otherwise of the course the UK government has adopted. On the plus side, with radio silence from the Labour party who hold the key to all this, something is being done at last by those who don't, namely the Tories. Ed Milliband has let the country down, with an absence of any leadership, and indeed of any signs of life at all. It was disappointing also that Margaret Curran, Shadow Secretary of State for Scotland, used the statement in the House as an opportunity for points scoring, but that probably reflects Ed Milliband's lack of any discernible control of events. On the minus side is the extent to which this will feed those north of the border who gravitate to feelings of grievance. However, Cameron has now committed to playing out his hand for better or for worse and it may well turn out for the better. Does this mark Salmond's Stalingrad, or a bright new dawn? Voters in Scotland will in due course pronounce.

I covered the legal issue in Independence, the Scottish Parliament and the Scottish Government. The UK government's statement comes down to the question of whether legislation by the Scottish parliament concerning a consultative referendum can be said to "relate to reserved matters". My view is that the words "relate to" are to be looked at in terms of legal agency. Since a consultative referendum has no legal effect - it merely obtains the views of the people in Scotland - in my view it does not. The UK government's legal advisers think otherwise.

In my view the UK government's view leads to absurdities. The powers of the Scottish parliament are congruent with those of the Scottish government. Everything that a Scottish or UK government does has to be permitted by law. It so happens that a very large proportion of the things either government does is not based on statutory powers but on the powers of the Crown as a natural person or under its prerogative, which as I explained in my article are transferred to Scottish Ministers in relation to devolved matters. If we take the view that consultative referenda on independence by the Scottish government are unlawful, then so must be consultative exercises on devolution itself, which is equally a reserved matter in the sense that the Scottish parliament has no power to pass an enactment transferring new powers, as presently reserved, from the UK parliament to itself. In theory at least, using Scottish civil servants' time to respond to the proposals of the Calman Commission (rather than using the Scottish parliament's constituent parties' own resources) was also unlawful. It would, in theory at least, be improper for the Scottish parliament to debate devolution and Scotland's position within the UK at all. Legal propositions of the government's kind are best tested against the light cast by these stress cases.

It is however equally absurd for the Scottish government to claim as they do that they have a "mandate" from the electorate in Scotland which the UK government cannot oppose, unless the government of an independent Scotland intends to operate above the law (that is, in a way otherwise known as tyranny). Either the SNP believes in constitutional government or it believes in revolutionary imperatives which put it outside bourgeouis considerations such as legal process. The proper course now is for the Scottish government to explain why the UK government have got the law wrong. They could apply to court for a declaratory judgement, but it seems highly unlikely they will do so.

Incitefulness

2011-11-09T11:17:00.005Z

I rotate my newspaper reading where I can, and I was surprised to see that the Telegraph has one of the most inciteful explanations of how we have got to where we are on devolution.

I have long thought that Scottish Labour is largely responsible for our current mess, with their facile alignment of any difficulties in Scotland with the Tories and implicitly the English. Unable to get off this track, their disastrous campaign this summer in the elections for the Scottish Parliament was largely based around how only Labour and not the SNP could properly protect Scotland against "London". This was particularly ludicrous, as well as being implicitly anti-English, because the Scottish Parliament is responsible for devolved matters and not for the reserved matters for which the UK government (and so, using Scottish Labour's and the SNP's lexicon, "London") is responsible. Scottish Labour have been trying to out-nationalist the nationalists, which is bound to fail.

The headline to the Telegraph article somewhat misrepresents the article itself. The article suggests that Scotland having a semi-detached relationship with the UK under "devolution max" may be the end point - although perhaps Mr Brogan thinks that that cannot reasonably be described as a union. For my own part, as explained in this article, I cannot see how devo max would work without a complete rewriting of the UK constitution. It would make Nick Clegg's current playground hobby of rejigging the House of Lords largely redundant, since presumably the House of Lords would become some kind of federal or confederal chamber.

I doubt the resolve of both the Labour and Conservative parties to see such an arrangement through, and indeed both parties seem incapable of even talking about it. We are likely instead to end up with some half-baked arrangement leading to independence in a generation. So the headline may end up being right.

Which raises the question: When is the Labour party's navel gazing on this going to end, and they start saying something useful? At the end of the day, the future of the union (or otherwise) is in their hands.

A referendum

2011-10-31T23:29:00.003Z

More on Greece and the Eurozone in this article I am afraid, but it is the issue which is going to shape events in the next year or two to a far greater extent than a referendum on Scottish independence, which is relatively neutral to those in the remainder of the UK, or some of the other legal issues I cover on this blog.

It appears that I was adrift on the 60% haircut for private creditors of Greek debt. Under the package agreed by the Eurozone last week it is "only" to be 50%, for the moment. But the Greek government has now out of the blue decided to hold a referendum on that package, apparently to take place around January.

This is an odd development. With Greek acceptance of the deal now in issue, it puts in doubt whether the EFSF can send more funds to Greece next week as proposed: I doubt anyone really thinks Greece can pay off any of these new "loans", but a minimum of pretence needs to be maintained nonetheless. We were earlier told by the Greek government that they will run out of cash in the middle of November. How will Greece fund itself in the meantime?

It is difficult to read the intentions of the Greek government with this surprising announcement. Is it to give the Greek people a taste of semi-default in the November to January period, as without the EFSF money it will not be able to pay public sector wages or pensions in full during the period?

Or is the referendum an attempt to get a better deal out of the EU in the hope that the EFSF money will still be credited to them next week and that they can hold a gun to the German government's metaphorical head between then and January?

In either case the dangers are immense, and are four fold. First, if the current package is rejected in the referendum, unless the EU agrees to fund Greece with real money transfers it can only result in sovereign debt default, which would leave the ECB with deficits which will require further funds from Eurozone members to finance on the public side. This is because the current 50% "haircut" agreed in the current package only applies to the banks. It does not apply to public authority creditors, and in particular to the ECB which has been buying Greek bonds on the market to make cheaper finance available to Greece. To have Greece potentially defaulting on its ECB support is startling and must be causing apoplexy in Berlin.

Secondly, in the event of such default, the "haircut" for private creditors will not be 50% but probably near 100%. When taken with the call-in of hedging insurance on the debt, it will leave a significant number of banks and other financial institutions insolvent, requiring further taxpayer support, which may exceed the ability of some Eurozone countries to finance when the support also required for the ECB's losses is taken into account.

Thirdly, a referendum decision against the deal seems likely to result in Greece leaving the eurozone, if only so that it can print money to provide temporary relief on its deficits, at the expense of high inflation, and also devalue its currency.

Fourthly, this will lead to immense pressure on Italy, Spain, Portugal and Ireland. I cannot predict what that will lead to, but it feels most unpleasant. A clearing of the decks with respect to Eurozone debt, accompanied by a period of recession in Europe (including the UK), may sound attractive as a resolution until it comes time to live through it.

A referendum is no doubt good for democracy. But in terms of the Greece and Europe, this is either clever brinkmanship by the Greek government, or lunacy.

Very dangerous times, Part 2

2011-10-11T15:19:00.026+01:00

Things have move on a little since my article of 3rd October.

Word on the street is that the apparent indecision in the EU masks a decision that has been made: it has apparently been concluded that the Greek government is incapable of reducing its budget deficit unless it no longer has the money available to it to spend, so the next tranche of "loan" of €8bn will not be made. Instead Greece will be allowed to default by renouncing its sovereign debt to 40% of face value, which coincidentally is the price at which their debt is trading on the open market, and any further financial assistance given to Greece will be in the form of emergency transitional relief. Things are about to get a great deal worse for people in Greece.

The delays are apparently now to allow all reasonable effort to be put into ensuring that the banking system does not collapse once the formal announcement of the default is made (the default will force the banks to crystalise the losses on their balance sheets), by recapitalising the banks and by restructuring one of the most vulnerable, Dexia. Whether Greek domestic banks are capable of being saved (and any EFSF effort or money is to be put into this) is not clear, but it is banks in other parts of the Eurozone, and in particular French banks, which are now the main targets of this recapitalisation. The remaining battles within the Eurozone are about whether the recapitalisation of French banks is to be a French taxpayer responsibility, or an EFSF responsibility to which other Eurozone countries, and in particular Germany, will contribute.

The EU/ECB appear to have gone on the path of short term pain for (possible) long term gain, but the question is whether Greek default can be managed without causing contagion to Portugal, Italy and Spain. In any event, little attention seems to have been paid to David Cameron's preaching to the Eurozone, quite reasonably given that the UK is not a member.

Meanwhile the UK government and Bank of England have gone on the opposite path of short term gain for (possible) long term pain, by starting a new round of quantitative easing. Quantitative easing comprises in effect a compulsory taking of a proportion of all UK denominated liquidated assets, such as banks accounts, cash ISAs and bonds, for the relief of debt in the UK by inflation. It puts more money in the economy but punishes the prudent, which is not sustainable as a long term model. It is particularly bad for people's savings in pension funds and for annuity rates because of the reduction in bond yields. The point that may be in danger of being overlooked is that the economy needs savings, investment and trust as well as short-term liquidity in order to prosper in the long term.

So two very different approaches to how to deal with sovereign and private debt. Time will tell which is the more correct. I would not necessary bet on this being the UK government rather than the German government.

Very dangerous times

2011-10-03T13:33:00.003+01:00

So Greece has admitted what everyone thought, namely that they have not met the formal conditions for the release of a further unrepayable "loan" of €8bn, and they are in talks with the IMF, ECB and EU/EFSF.

We really are at crunch time here. It is conventional to blame Germany for being unwilling to take the steps necessary to underwrite Greek debts, either by way of eurobonds or by agreeing to borrowing being undertaken by the ECB secured against the EFSF at lower rates than Greece could ever manage, in order to enable further "loans" to Greece which can never be paid off but which would stave off default towards the private (banking) sector. The argument, probably correctly, is that German citizens will be far worse off if they allow Greece to default, with a domino effect on Italy and Spain; and since they have the economy to more or less stand it, why not have Germany underwrite Greek debt? However German citizens seem to want a bit of Bundesbank style rectitude established, and who can blame them. Whilst Germany holds the key to the puzzle, let it not be forgotten that Greek governments are at root to blame for the crisis. They deliberately, profligately and, in terms of the eurozone treaty, illegally incurred excessive indebtedness and cooked their books in order to hide it.

We have something of a smaller scale going on in the UK. The Tory party were only for a short time, during the Thatcher years, the party of the middle classes. They have gone back to 1950/60s-style "Toff Toryism", which is a brand of Eton Toryism which is generally content if they can keep their own money at the same time as more or less managing the country effectively. Their strategy for dealing with national and private debt in the UK is clearly to inflate it away: that means transferring funds from those in the middle classes responsible enough to save for their future (including their retirement) to irresponsible people who instead of saving have rung up very large debts, including the UK government itself. So in contrast to the stance of the German government, there is no moral high ground from the UK government here.

The Tories will do as little towards the middle classes as they can get away with without losing too many of their votes - their calculations are tactical rather than moral. From that point of view Ed Milliband's wooing of the aspiring middle classes at the Labour Party conference is an interesting and probably wise development. Probably he means it only slightly more than does, say, David Cameron, but at least it would be done with a warmer smile (or at least, would be should Ed Balls cease to be the shadow Chancellor.)

Commission on the West Lothian Question

2011-09-09T09:15:00.034+01:00

A junior minister, Mark Harper, made a written statement to the House of Commons yesterday about the Commission on the West Lothian Question. The statement said this:

"The coalition programme for government set out our commitment to establish a commission to consider the ‘West Lothian question’.
I can now give the House more details on how that commission is to proceed.

The Government are clear that the commission’s primary task should be to examine how this House and Parliament as a whole can deal most effectively with business that affects England wholly or primarily, when at the same time similar matters in some or all of Scotland, Wales and Northern Ireland are lawfully and democratically the responsibility of the separate Parliament or Assemblies. The commission will not examine financing, which is being dealt with separately through various processes led by Treasury Ministers, nor does it need to look at the balance of parliamentary representation, given that Parliament addressed historic imbalances in representation between the constituent nations of the United Kingdom in legislation earlier this year.

Given the commission’s focus on parliamentary business and procedure, the Government believe that the commission should be comprised of a small group of independent, non-partisan experts with constitutional, legal and parliamentary expertise. We will also wish to consult with Mr Speaker and other parliamentary authorities on how the commission can best address this. We will also ensure that there is a full opportunity for the parties to have their say following the completion of the commission’s work.

We will bring forward formal proposals, including the terms of reference for the commission, after the conclusion of this short process of consultation and further deliberation. I expect that this will be in the weeks after the House returns in October."

This statement says virtually nothing. It does not set out the membership of the Commission nor its terms of reference, and says very little that the government has not previously said in written answers that it would do, first by last Autumn, then by last Christmas and then by this Autumn. The main purpose is to get Harriett Baldwin to withdraw her Legislation (Territorial Extent) Bill, a private members ballot Bill which has made unexpected progress and is due for its Report stage today.

It appears that this "Commission" is to be barely a commission at all. It will treat its considerations on the West Lothian Question as concerned only with how the House can "deal most effectively with business that affects England wholly or primarily". If only efficiency rather than issues of democratic accountability and fairness are to be considered, there is a simple answer which does not require a commission at all - leave things as they are. But the West Lothian Question, as devolution itself, is about more than efficiency, and its compass ought to be larger than that of a committee on procedure in the House. It shows that Cameron himself is largely uncommitted to this, notwithstanding his statements before the last election and indeed the Tory manifesto itself.

The statement was odd in another way. It rules out one suggested answer to the West Lothian Question, which is further to reduce representation from the devolved nations in the House, as was done in Northern Ireland after the Stormont Parliament was set up in 1924. I am not too fussed about that, since it seems to me to be a fairly half-baked idea to begin with, but it does show how the government is closing down the options and the commission's remit before even its terms of reference have been decided and it has begun its work.

As readers of this blog will know, in fact I think there is a relatively straightforward answer to this, which is to have a double majority requirement at Third Reading in the House of Commons for any separate Part of a Bill with only limited territorial extent, namely a majority in the whole House and in the territory to which the Part of the Bill extends. In the first instance, while this is being tested out, it could operate as a safety net in the same way that the House of Lords does, by comprising only a power to impose a delay of one Session where there is no territorial majority. This would enable a government to get its business done where it really thinks it needs to. I have previously explored this here, here, here and here.

If I was Harriett Baldwin faced with this I would not withdraw, but a new back bencher under pressure can find this difficult. It looks as if Labour, who are politically advantaged by current arrangements, have decided to talk her Bill out anyway. A private member's Bill is a public Bill debated in government time, and unless she can get sufficient members to attend to force a closure motion, Labour will find it quite easy to talk it out of time.

Update1: Harriett Baldwin has decided to press on because of the lack of detail in the statement. So she will now have to try and get it through Report stage without it being talked out on amendments.

Update2: Labour didn't manage to talk it out, but they won a vote against it 40-24, so it will proceed no further.

New Labour and service provision

2011-09-08T00:02:00.001+01:00

The Health and Social Care Bill passed the House of Commons yesterday and is off to the Lords.

Until this Bill passes the Lords we are still living in the New Labour universe so far as concerns health provision. Without intending to do so, my wider family have recently had to call upon its services on three occasions in the last three months in differing parts of the country (none of them involving me I am glad to say). One concerned a (relatively routine) investigation at a hospital in Hemel Hempstead. On two other occasions the services of acute medical centres at Nottingham and Watford were called upon.

From time to time we read horror stories in the newspapers of failing hospitals with incompetent management delivering bad and disrespectful service to patients, particularly to the elderly. My small sample out of the many hundreds of thousands who call upon the NHS each year is statistically not a sample at all, but it is all I have to go on, and the calls on acute medical services that my family have made have been at both ends of the age spectrum - a young man in his twenties and an elderly lady in her early nineties. In both of these cases the service has been unqualifiedly excellent. I was particularly impressed by the respect offered to elderly patients, and the concern that was taken by the medical staff to ensure that the elderly lady concerned was involved at all stages of the process - her wishes were taken as paramount - and at the follow up care that was offered.

This was at the macro (hospital) end of the process. But I have noticed change at the local scale. My own doctors' surgery have implemented a scheme whereby every patient who rings in for a non-emergency appointment will receive a telephone call the same day from the surgery's duty doctor to discuss the matter and how best to deal with it.

I cannot say that the last of those (the GP level) is due to policies of the former Labour government, and anyway so much depends on the commitment of individuals who decide that they want to make a difference. What I can say is that I have been greatly impressed by the service offered to my family by the NHS.

It is sometimes said that the question whether a society can be regarded as truly civilised is to be judged by the way in which it treats its sick and elderly. If that is the test, then on my small sample things are better than we sometimes fear.

Commoditised software

2011-09-02T14:25:00.018+01:00

SCO v Novell

On Tuesday the 10th Circuit of the United States (federal) Court of Appeals gave judgment in the long running case of the SCO Group, Inc v Novell, Inc.

Some readers with an IT background may remember Novell, who were the first company to offer a decently priced and relatively usable networking system for small and medium sized businesses, with their NetWare product. Since the heady days of dominating this market sector, times have been harder for them (others have caught up), but they have been staking their future of late on commoditised software, in particular that offered by open source endeavours such as linux. IBM have also been investing heavily in this new sector.

This is not a small market to tap into. Practically all the automated trading systems of the large financial institutions are now running on linux, and in combination with the Apache web server it occupies a sizable chunk of the web server market, where it offers real competition to windows server products. Mega-sized web operations requiring high scalability and reliability now use linux as a first choice: if you use Google, Facebook or Wikipedia, or indeed read this blog, the services have been running on linux.

Linux

Linux is an extraordinary venture. It began in 1991 as the hobby of a certain Linus Torvalds who was trying to write an open re-implementation of the POSIX standard. POSIX is the standard, published by the International Standards Organisation, for unix-like operating system interfaces (I come back to unix again below). The defining feature of this venture was that Torvalds decided to release his computer code ("source code" in computer-speak) for this reimplementation using the General Public License (colloquially known as the GPL). The GPL basically provides that anyone can use and modify the code covered by it as much as they like, and freely transfer it to anyone they like, provided that if they make modifications to it they make the source code to the modifications freely available also. It is a copyright license from the author of the source code which in effect makes a bargain saying "you can use my code without charge, provided that you make freely available also any improvements to it which you develop: you don't have to use my code, but if you do, that is the basis on which you can do so".

This turned out to be a winning formula. Other individuals interested in writing a POSIX re-implementation joined in. Because it was freely available, a number of universities started including it in their courses on computer operating systems. More people started contributing, and it snowballed. When it became a fully usable server environment, a number of companies (including IBM) looking for an alternative to Microsoft Windows, which was at the time gathering to itself something of a monopoly, became involved. And so on it went.

Unix

Now back to unix. This was originally a proprietary operating system developed by Bell/AT&T (with a different flavour developed later at the University of Berkeley) in the late 1960s and during the 1970s. Over time, the interface and specification for this operating system became an international standard, POSIX, as later supplemented by the Single Unix Standard (SUS). POSIX is published by ISO and the rather larger SUS standard by the X/Open Group. Although the specification for the unix operating system is standardised and open, most of the implementations of it originally were not. There were and are a number of proprietary implementations of the standard, including those of Sun Microsystems, now Oracle (Solaris), Hewlett Packard (HPUX) and others. Some parts of these implementations were licensed from AT&T and other parts were separately developed by the companies concerned and therefore owned by them. A non-proprietary offering, deriving from the University of Berkeley source code which they subsequently made publicly available with any AT&T code removed, has been obtainable for free for a number of years, now known as BSD; but at that time at least it did not have the breadth of implementation (nor the commercial back-up) of the commercial offerings.

The important legal point here is that rights over copyright are intellectual property rights owned by the author, or a person to whom the author has assigned the rights, preventing copying. In relation to standards such as POSIX and SUS there is no legal preclusion of a re-implementation of the standard by freshly written source code, provided that any fresh re-writing is not done by copying from the original. What are called "clean room" re-implementations, under which the author of the re-implementation is forbidden from seeing the original, are perfectly legal from the copyright point of view.

Novell bought AT&T's unix from AT&T in 1993. They sold some of it on to the Santa Cruz Operation in 1995 (what this "some of it" comprised, later formed the subject of the litigation in SCO v Novell). In 2001 Santa Cruz sold to Caldera Inc whatever it was they had acquired from Novell. In 2003 Caldera Inc changed their name to "SCO" (presumably to make it resemble Santa Cruz Operation), and sued IBM alleging, amongst other things, that IBM had breached SCO's copyright in AT&T unix by copying some of AT&T unix into linux. At the same time, SCO brought test cases against some other companies using linux, claiming that linux infringed their AT&T copyrights by virtue of IBM's contributions and in a number of other ways.

Novell were worried about this. Like IBM, they were starting to get heavily involved in providing linux services to customers who would pay for support and for certain "add-ons" which Novell were providing. They stated that the proceedings against IBM, so far as based on copyright, and the other test cases, were bound to fail because Novell still owned the copyrights which were alleged to be infringed. Novell claimed that the 1995 deal did not in fact transfer to Santa Cruz the copyrights to the AT&T code, and instead only granted to them a right commercially to exploit the code and to add their own improvements. If true, this would kill all the copyright-based claims by SCO stone dead. SCO accordingly sued Novell on this.

SCO's allegations against linux were always going to be difficult to succeed on: SCO never publicly identified the code which they said had been copied, nor did they explain why linux was not an independent fresh creation which, as explained above, would not be constrained by copyright law. In addition, when still calling themselves Caldera, they had themselves marketed a linux product under the GPL so making publicly available the source code which in their subsequent litigation they claimed was still proprietary.

But none of this could get to court if they could not prove ownership of the AT&T copyrights alleged to be infringed, through the 1995 sale to Santa Cruz. They failed to do so. After a tortuous series of events and proceedings, which included SCO filing for bankruptcy protection¹, in a federal jury trial in March 2010 the jury decided that Novell still owned the copyrights in question. SCO appealed to the federal Court of Appeals, and in their judgment on Tuesday the Court of Appeals decided that the verdict was to stand.

Commoditised software

The last legal road block to widespread commercial adoption of linux is now to all intents and purposes at an end.

What has happened is that high-grade operating system deployment has now become as commoditised as, say, water or indeed air. Companies such as IBM and Novell charge not for the operating system product itself, but for services they provide on top of the product. Their business model is now very different from that of, say, Microsoft, who derive a large part of their income from sales of the Windows operating system itself and their Microsoft Office products.

What we are likely to see in the future is a market dominated by both linux and Windows, but in differing sectors. Linux will be ubiquitous at the large scale end. Windows will likely hold on to a decent share of the small and medium sized business sector and more particularly the desktop computer, where Microsoft Office reigns and where individual users want the convenience of Microsoft's large range of consumer desktop offerings.

A modest proportion of the smaller business sector will likely also be retained by the other free POSIX implementation mentioned above, namely BSD. (It is also to be noted that BSD forms the basis of Apple's OS X operating system as used on Macs and some other of its devices. The distinguishing feature of BSD is that its licence does not require modifications and improvements to be offered back to the public domain, as in the case of linux, which makes it attractive to specialist hardware vendors such as Apple but unattractive to the service-based business models of IBM and Novell.)

The big battle is now on for mobile devices, namely tablets and mobile phones. Windows has become seriously squeezed in this area by linux-based offerings such as Google's Android, and we will have to see how this all pans out.

In addition, although copyright issues concerning linux are now dealt with, the US patent system allows patents to be issued in respect of software, whereas most of the rest of the world, including the UK, does not: in the EU, under the European Patent Convention "computer programs ... as such" are not patentable except insofar as they solve a "technical problem" (as opposed to a business problem) in a non-obvious way. Patent litigation concerning software will keep lawyers, in the US at least, well employed for some years to come, and the full extent of what is and is not covered by the European Patent Convention is also likely to be explored in future litigation. I may well come back to the last of these in respect of the recently initiated Spotify litigation.

___________________________________________

¹ The way in which the bankruptcy court allowed SCO to use its creditors' money to proceed with its litigation ambitions is one of the more notable features of this case. Whether this is a particular feature of US bankruptcy law (which is a federal matter) rather than the particular predilection of the bankruptcy judge concerned, Judge Gross, is a matter I leave to whose who know more about US bankruptcy practice.

Internet access and censorship

2011-07-29T21:01:00.006+01:00

Mr Justice Arnold gave judgement yesterday in the case of Twentieth Century Fox Film Corporation and Others v British Telecommunications plc. This concerned the Newzbin internet site, which is largely devoted to providing illegal downloads of films, in breach of copyright. A number of film companies sought an injunction against BT, which would require BT to block access to the site from their customers in England and Wales. Arnold J agreed to make such an order. The precise terms of the order will be settled at a further hearing to take place after the summer vacation in September.

The question to begin with is, why was this order necessary at all? Why not attack the source, namely Newzbin? The reason appears to be that the company and its internet site is located in the Seychelles. Either the film companies feel that the law of the Seychelles does not enable them to have the site closed down (an unlikely position), or that if they obtained such an order from the court in the Seychelles, Newzbin would just resite somewhere else, resulting in a never ending game of chase. The second is much the more likely reason, as such resiting has happened once already, the current Newzbin being already in its second incarnation.

I do not support breach of copyright. Although I do not watch films over the internet, I do stream audio, legally, via a paid-for site (Spotify) which has all the necessary copyright permissions and where a proportion of my subscription goes to the artists I listen to. Accepting the position that breach of copyright is wrong, the next question to ask is whether civil proceedings involving what amounts to a third party — the internet service provider — is the right way to do it.

This is because in such proceedings there is another and very important stakeholder unrepresented at the table, namely the public interest in the maintenance of freedom of access except on pressing public interest grounds which might override this right, and which is properly supervised and not done secretly. The important point here is that civil proceedings before a court are only concerned with whether a civil wrong is being committed, and if it is, what order should be made by the court to prevent it. Once on a test case such as this the court finds that there is a matter to be remedied under English civil law, a precedent is then set for other similar cases, and in theory there would be no need for further references to a court for a shut down of this kind: future blocking could simply be done by agreement.

This judgement is founded on a number of interacting pieces of legislative material, beginning with Council Directive 2001/29/EC (the Information Society Directive), as transposed into domestic law by the Copyright and Related Rights Regulations 2003 and Council Directive 2004/48/EC. The 2003 Regulations enable the court to grant an injunction "against a service provider, where that service provider has actual knowledge of another person using their service to infringe copyright" and "against a service provider, where that service provider has actual knowledge of another person using their service to infringe a performer’s property right". Arnold J thought the case fell within these grounds and that in the exercise of his discretion he should make such an injunction.

However, as mentioned the outcome of this case is that, on the principle of precedence in the law of England and Wales, the film companies could now in theory write to any internet service provider and ask them to block any particular site they do not like, and if they do not agree take the case to court and have their costs awarded against the ISP. ISPs do not like to spend their time in court, nor paying other parties' costs, particularly as they are not to blame, so they are likely in the end just to amend their terms and conditions of service with their customers so allowing them to block any site where requested by a copyright owner.

If it resulted in this, we would then have censorship without any checks of any kind, by a court or anyone else. This is wrong in my view. There has already been "feature creep" on this. The technology employed by BT to block customer access is called "CleanFeed". This was introduced by BT to prevent highly illegal internet child pornography being downloaded. Now by court order this originally limited purpose of child pornography is being extended to copyright infringement. Where next? And it invites the question, what is the difference between this new internet censorship in the UK and the "great firewall of China" established by the Chinese government?

The answer to the last point is no doubt that this one (Twentieth Century v BT) is about copyright infringement, and the other (Chinese censorship) is about political views. But where does this end? Whilst this case is based on a statutory provision (the 2003 Regulations), the court has a wider power at common law to injunct against civil wrongs, and there are many other grounds for tortious intervention which might exist under civil law. Should the ISPs next be required to block any site on receipt of a complaint from someone else that it, say, breaches their privacy? And after that?

This "what next" question has no obvious answer.

I think this area is too important to be developed by the courts unsupervised by appropriate controls applied via democratic processes, which need to be at least as good as the rights of appeal to a tribunal set out in the "three strikes and you are out" proposals of the Digital Economy Act 2010. That is itself a controversial Act with a number of shortcomings, but at least it provides for some safeguards for members of the public (and the public interest) as represented by the requirement for the Department for Culture, Media and Sport to make safeguarding rules after balancing the rights of members of the public to information and freedom, and whether the complainant had got their facts right, before the "three strikes" procedure can come into effect. Furthermore Arnold J's decision on what amounts to "actual knowledge" with respect to each of their customers renders impotent the provision of section 17 of the 2010 Act empowering the Secretary of State by regulations to make provision "about the granting by a court of a blocking injunction in respect of a location on the internet which the court is satisfied has been, is being or is likely to be used for or in connection with an activity that infringes copyright", which could have contained appropriate safeguards.

The fact of the matter is that civil procedure does not deal with hidden unrepresented interests of this kind well — and why should it, as civil procedure is based on the proposition that there is a dispute between two parties to be conducted in an adversarial manner, where costs are always at stake. The increased use by the courts of secret injunctions should be a warning to us on this. And it is simply not good enough for ISPs to make comfortable arrangements to introduce censorship by the back door under penalty of costs, which we may never get to hear about. We only know about this particular case because it required proceedings in open court. Later ones may not.

I have written to the Department for Culture, Media and Sport to ask how the Secretary of State intends to deal with this. It will be interesting to see what he has to say.

Keep calm and carry on

2011-07-29T10:17:00.006+01:00

We are getting more predictions of financial armageddon if Congress does not raise the US government's borrowing ceiling by next Tuesday. That is the point at which the US Treasury says that it will not have the resources to fund current levels of federal spending.

The story doing the rounds is that the US may be forced to default on its sovereign debt. This is simply nonsense, and serves no one's interests because it clouds the real issues surrounding the US budget deficit, which genuinely is becoming problematic.

First, the US's existing debt obligations. Contrary to these doomsday scenarios, the US is not going to default on its sovereign debt, because there is absolutely no reason to do so. The debt ceiling is just that, a ceiling, and it does not prevent roll-over when bonds expire at maturation. The US government will just roll over the debt by issuing new bonds to replace the old, as it usually does and will continue to do: there is zero chance that the US will default on its repayments of principal. What the US administration will be precluded from doing without Congress's agreement is issuing new bonds to fund new deficits on the current account.

There is of course the issue of interest on the debt. Will the administration choose to go into temporary default on interest payments? That is highly improbable, because it has plenty of revenue to meet its debt servicing obligations: interest expenses represent under 10% of federal tax revenues annually (excluding payments into the Social Security Trust Fund for accrued future social security obligations) of which about a half is held by non-US lenders, and it is pointless defaulting on interest when there is no need to do so, because it would very significantly drive up borrowing costs when existing debt is rolled over, possibly to unsustainable levels. Anyway, arguably the US constitution requires the administration to give priority to debt servicing, as section 4 of the 14th Amendment provides that:

"The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned"

This was originally designed to boost market confidence following the US government's repudiation of the debts of the Confederate government after the end of the civil war, but still stands as a general guarantee of government borrowing. Having said that, there is not too much distinction between a contractual obligation under bond warrants to repay at the due date fixed for maturation and meet interest obligations, and a constitutional obligation to really, really repay at the due date fixed for maturation and meet interest obligations. The amendment is window dressing, but window dressing with a purpose.

So whilst the US Treasury have said they will reduce allocations pro rata to all federal departments beginning late next week, this will almost certainly not include the Treasury's own interest obligations on its debt.

So the dangers lie elsewhere. These are two fold. First, the accumulating debt is going to become unsustainable: it is currently $14.46tn, which is around 96% of GDP, and going up at an astonishing rate of over $1tn a year. The US administration simply has got to get the budget under control. It could do this relatively easily by raising tax rates, but the republicans, who control the House, are blocking this. On the other hand, the democrats, who control the Senate, are blocking major cuts in federal expenditure. So there is stalemate.

Secondly, the problem if Congress does not raise the debt ceiling is that there will have to be very significant and immediate cuts in federal expenditure, probably over 20% (I have not seen the US Treasury put a figure on it) which is going to cause major disruption to the US economy. A period of (albeit probably temporary) deflation is not going to help a world barely coming out of recession. It is going to be particularly bad news if it pushes more US financial institutions into distress and insolvency. This also seems to be an unknown. The only way to handle the budget deficit is on a planned basis, not by a single big hit taking place overnight between Tuesday evening and Wednesday morning.

So if a deal can't be reached, the problem is not default on US sovereign debt, but default on commercial debt in the US brought on by deflation, and its domino effect on the world financial system.

The smart money of course is on the House and the Senate doing a deal some time next week.

MPs get tough

2011-07-14T15:09:00.017+01:00

Update: That was quick. It appears that a visit from the Deputy Serjeant at Arms was sufficient to persuade the Murdochs to appear next Tuesday after all. Quite what they think they have achieved by their side show before appearance is not clear.
________________________________________

There has been plenty of hypocrisy from the leaders of all the main parties in the phone "hacking" scandal involving the News of the World, and Gordon Brown's attempted explanation yesterday of his earlier close links with the newspaper proprietors concerned was both to type and frankly ludicrous. However this affair is now throwing up some very interesting legal and constitutional issues.

This is because the Culture, Media and Sport Select Committee of the House of Commons is reported to have ordered this morning the Serjeant at Arms to issue formal summonses to Rupert Murdoch and his son James to appear before them on Tuesday, the Committee having had their earlier informal invitations to appear refused by the two. There has been some suggestion, most recently on the BBC's website, that because the Murdochs are American citizens they can ignore the summonses.

In my view that is wrong, and that to ignore the summonses would be extremely foolish with respect to the Murdochs' business interests in the UK.

The House of Commons has the same powers at common law as courts of law to summon attendance of people before them and for the production of papers by them. A failure to obey such a summons is a contempt of Parliament (in the case of a summons by the House of Commons) or a contempt of court (in the case of a summons by a court). Such a contempt is punishable by a fine or imprisonment. There is no need for the House of Commons to apply to court for the levying of such a fine or for imprisonment: upon finding contempt it can of its own motion commit a person to the Tower of London, or another place of detention, for imprisonment should it wish, or levy a fine.

The House of Commons has, by its standing orders for public business, delegated the power to summon people and papers to a number of its select committees. The Culture, Media and Sport Select Committee is a departmental select committee established under standing order 152, and under order 152(4)(a) it is one of the committees to which that power has been so delegated. So the summonses issued by the committee are punishable as a contempt in the event of non-compliance.

I explored international jurisdictional issues involving courts of law in articles on the conflict of laws and on last year's Liverpool football club litigation. The principles concerning judgments of the House of Commons are similar. Presumably the BBC's reporter considers that contempt of Parliament may only be committed by subjects of Her Majesty, but I think they have that wrong.

Any warrant for commitment or fine issued by the House of Commons would not be enforceable in or by foreign jurisdictions. However, in my view it may be enforced against anyone within the United Kingdom and against any possessions within the United Kingdom. The fact that someone is a foreign citizen does not prevent them, whilst in the United Kingdom, being arrested, fined and imprisoned under a warrant of the House of Commons, any more than a foreign citizen remaining in the United Kingdom may escape arrest, trial and imprisonment for an offence committed whilst here. International law on such matters generally works on the basis of "my gaff, my rules" (to quote the "pub landlord" Al Murray). On criminal matters, there are various extradition treaties under which a foreign citizen who flees may be compelled by his own courts to return to the place where a serious offence was committed for trial, but that does not apply in this case.

So if either of the Murdochs fails to appear and remains in the United Kingdom, he may be arrested. Their options now are to appear, or to leave the UK. Leaving means in theory never setting foot within the UK again. But even if they leave, a fine may be levied against their assets within the UK, which includes by all accounts a large equity stake in a number of UK newspapers. Furthermore, a failure to appear before the committee may also affect any "fit and proper person" tests to which their UK-based activities are subject in the future.

So my strong guess is that (i) they will appear, and (ii) they will thereby make themselves look stupid by refusing the earlier informal invitation.

Privacy and superinjunctions - some facts

2011-05-25T19:33:00.006+01:00

Superinjunctions have been in the news again. A superinjunction comprises two injuctions rolled into one. First there is an injunction preventing some often truthful facts being publicised; secondly there is a supplementary injunction precluding the granting of the first injunction from being mentioned. They are most commonly seen in privacy cases, but can be issued in other cases (they featured in the Trafigura litigation, for example).

There have been claims and counter-claims about their constitutionality. Following the "outing" of a football player in Parliament by John Hemmings MP, some have claimed that a constitutional crisis is in the making. Professor Victor Bogdanor has been writing in the Times today, saying that Parliament ought to be subject to the "rule of law" (that is, the courts) by analogy with countries with written constitutions, whilst recognising that in the UK at present it is not.

This article does not express any views on the propriety of either superinjunctions, or of members of Parliament ignoring them. It attempts only to dispel or confirm some of the statements of fact (rather than opinion) which have been propagated about them.

Statement 1: John Hemmings can say what he wants, whatever the courts say or think about it

True, provided it is done in the course of proceedings in Parliament.

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". Claims that John Hemmings is in contempt of court are incorrect since the statement was made during a debate in the House of Commons. Only the House of Commons can sanction him, or otherwise, for his actions. So far neither the Committee of Privileges nor the Speaker has seen fit to recommend an inquiry into whether the House (by a resolution passed on the floor of the House) should sanction him.

Statement 2: In issuing superinjunctions, the courts are just doing what Parliament has told them to do in the Human Rights Act 1998

False on a strict analysis, but this is nuanced.

The Human Rights Act 1998 imports, with limitations, the European Convention on Human Rights into the law of England and Wales, Scotland and Northern Ireland. Article 8 of the Convention as so imported provides that "everyone has the right to respect for his private and family life, his home and his correspondence". This right to privacy is to be balanced with the right conferred by Article 10, which provides that "everyone has the right to freedom of expression". That balance is held by the courts, who are in the first instance (by virtue of the 1998 Act) the domestic courts of the UK, and in the last resort the European court at Strasbourg.

However, ostensibly the 1998 Act is only concerned with what is called "verticality", namely rights to be asserted against public authorities. It was not intended to act "horizontally", that is in proceedings between private individuals or bodies, and for that reason Article 13 of the Convention, giving the right to an effective remedy, is not a Convention right applied by the 1998 Act. That is reserved to Parliament for implementation and can in the absence of a judicial coup d'état only be litigated by proceedings in the European court.

Plainly numerous privacy cases do involve injunctions against non-state bodies, and in particular all the notorious ones involve injunctions against the press.

The courts in England and Wales have for a number of years been establishing a law of privacy by extending the common law on confidentiality, which is judge made law. The courts have in effect taken the view that, since on matters concerning privacy and the state Article 8 now applies, it would be odd not to extend the common law on confidentiality in a similar direction when dealing with relations between private individuals or bodies. I explored this in my article on Privacy, human rights and horizontality.

Statement 3: The judiciary are creating a privacy law on the hoof

True, see the answer to 2 above.

However, this is mainly because Parliament has been silent on the matter. John Hemmings standing up in the House of Commons and asserting his immunity from an injunction of the High Court of England and Wales is not the same as Parliament passing a privacy enactment.

If politicians think that the judges should not be making privacy law, they should accept their responsibilities and make the law themselves. They have been ducking their responsibilities on this.

Statement 4: In countries with written constitutions, it is the courts and not the legislatures which have the final say on human rights

True up to a point, but (i) this is only up to a point, and (ii) it does not lead to the conclusion that proceedings in the UK Parliament should be subject to the jurisdiction of the courts.

In countries with written constitutions, the courts are not in fact normally the arbiters of the law of human rights as such, but arbiters on the legal effect of the constitution, and most constitutions say something about human rights, including freedom of expression. Given the breadth of most constitutional propositions, this gives substantial scope for invention by the courts having responsibility to interpret and apply them. Thus, the principles of freedom of expression in the first amendment of the US Constitution (also called the Bill or Rights) and in the European Convention are similar, but the conclusions reached by the respective judicial authorities about their effects are markedly different.

In countries with written constitutions the voters, the legislatures or both remain the final arbiters on fundamental norms, because constitutions can be amended by them. For an amendment, most constitutions require a significant majority of the legislature in favour (often 2/3rds) and some constitutions require this to be confirmed by a referendum of the electorate. The courts have to give effect to the constitution as it stands from time to time, not as they would like it to be; they are therefore not the ultimate masters of the law.

Here lies the difficulty with ever making the courts in the UK supreme on constitutional matters as our constitution currently stands, namely that there is no way, short of an Act of Parliament, to put them back in their places where they have erred on matters of public policy. Given a fundamental disagreement of principle between the judiciary, who are not elected, and Parliament, which is, under our constitutional arrangements it is inevitable that it is Parliament which must prevail.

Responses to the SNP's victory

2011-05-12T15:47:00.000+01:00

It looks from recent reports in the newspapers that the UK government is going to stick with the current Scotland Bill giving effect to the Calman Commission proposals as they stand. It seems uninclined to devolve the setting of corporation tax within Scotland, which was Alex Salmond's first demand following the SNP's election victory last week.

A number of members of the academic devolution community in Edinburgh and Cardiff have suggested that proposals for further financial devolution in Scotland are now inevitable and required from the UK government. Some in the Scottish Liberal party now appear to want the Liberal part of the coalition to argue for the implementation of the Steel Commission proposals for the introduction of federalism.

All these proposals in my view underestimate, or ignore, the dilemmas presented to the UK government by the need to keep a number of different balls in the air at the same time.

Federalism: the problem

The Steel Commission report, which can be viewed here, is emblematic of this weak thinking. It proposes a "federal solution" for the UK, but only explores what this would mean for Scotland. It completely fails to examine the consequences on the wider UK and disregards the point that a federal solution for the UK requires at least four to tango.

A federal solution cannot work if, as in the case of the bulk of the Steel Commission report, it treats Scotland as an item to itself.

England

More particularly, the problem which the Steel Commission report (and the academic devolution industry generally) ignores is the problem of England. The Steel Commission speaks of the "nations and regions" of the UK; but what does that really mean? A federal solution would require, if not federal institutions for England as a single federal unit, then federal institutions for each "region" of England. For a "federal" solution as commonly understood to work, England, or each region of England, would require its own government, and parliament with law making powers equivalent to those of the institutions for Scotland, Wales and Northern Ireland.

Whilst regional federalism within England is something which I support (I think England could quite successfully run itself as three federated regions, say the North, the Midlands and the South), it would require a vast amount of preparation, discussion and reflection within the whole of the UK over a prolonged period, and certainly for a longer period than the 5 years remaining before a referendum on Scottish independence. More particularly, people in England would need to be asked what they want rather than have it imposed on them. If a federated UK is to be instituted, they might want England to have a single parliament for the whole of England rather than regional parliaments: who knows?

Wales and Northern Ireland

In addition, the Commission ignores that while Scotland can stand on its own feet fiscally, certainly while North Sea oil lasts, Northern Ireland and Wales at present probably cannot.

How would funding for Wales and Northern Ireland be managed in the Steel Commission version of a federal UK, and how would Scotland contribute to those nations' federal funding?

No federalism: the problem

At present devolution in the UK is asymmetrical. Put shortly, England does not have it.

The Calman Commission avoids making the West Lothian question significantly impinge on matters of taxation by proposing taking the top 10% slice off the rate of UK income tax and giving the Scottish Parliament the power to decide how much of that 10% (or more) is to be met by income tax payers resident in Scotland. The effect of this is that the rate of income tax set by the UK parliament would directly affect, on a 1:1 basis, the amount of block grant received by the Scottish Government.

All those who argue for fiscal devolution in Scotland going further than this without having also mapped out a workable federal solution (and I include the Steel Commission in this category for the reasons mentioned above) come up against the point that both constitutionally and politically there is a point beyond which asymmetry cannot go. The Calman Commission judged that their recommendations approximated to that limit. In that, they are probably right.

Let us say Scotland were to become substantially autonomous on matters of taxation. Say, instead of receiving a hand out from the UK Treasury by way of block grant, the Scottish Parliament were to set and collect tax in Scotland, and make a contribution to UK expenditure on reserved matters such as defence and the benefit system (or, in the words of the Steel Commission, "the Scottish Parliament should have a general competence over taxes and charges, other than those taxes or portions of taxes specifically reserved to the United Kingdom Parliament"). The link between, say, income tax in Scotland and that in the rest of the UK would be broken.

That breakage would be extremely problematic. It elevates the West Lothian problem to the area of constitutional fundamentals, namely the link between representation and taxation. In particular, in my view (and I think most other people's view) it would be wrong in constitutional theory for members of Parliament for Scottish constituencies to fix rates of taxes to which their constituents could not be subject, and almost certainly politically unacceptable to the country as a whole.

So let us say we reach a situation where the UK government is dependent on its Scottish members for its majority. This does not often happen, but did happen in 1950 and 1974, and is sure to happen at some stage again. If and when it happens again, how would the UK government pass its own budget? And how would it pass other contentious legislation not affecting Scotland where it depends on its Scottish members or there is a back-bench revolt (dare I mention tuition fees in higher education again)?

Any constitutional arrangement which cannot offer a solution in such a case is simply unworkable. So called "devolution max" by itself is a non-runner, without adopting new constitutional structures to cater for it. From Alex Salmond's perspective, he is wise to offer this as a referendum option because of the disruption this would cause if implemented.

How is David Cameron going to square these circles? Properly thought out federalism which looks at the UK as a whole rather than just Scotland, which is likely to require 10 years of thought and consultation, is probably the only way to do it. However, the political class at Westminster are opposed to this (including Nick Clegg and the Liberals): federalism robs them of many of the things that interest them and in particular robs them of control of England. It goes against all the centrist instincts of those at Westminster. Furthermore, the political class in Edinburgh seem incapable of looking beyond Scotland.

So probably we will have guerrilla warfare between Alex Salmond and the UK government and stagger on to a referendum in Scotland, and you would not want to bet all your assets on him not at least succeeding on a supplementary "devolution max" ticket. And the Liberals will continue to try to look in two directions at once.

Independence, the Scottish Parliament and the Scottish Government

2011-05-11T12:31:00.021+01:00

A number of articles have been placed in the blogosphere or have appeared in the newspapers about whether it is lawful for the Scottish Parliament to pass an Act for the holding of a referendum within Scotland on independence. Some of them have got it right and some of them have got it wrong.

In my view the correct position is that the Scottish Parliament can pass such an Act, but the pertinent point which few seem to have spotted is that the Scottish Government does not for the most part require an Act of the Scottish Parliament in order to hold the referendum, assuming it has got the cash to pay for it within the Scottish Consolidated Fund (a prerequisite whether or not there is an Act of the Scottish Parliament authorising the referendum).

Put more shortly, the holding of a consultative referendum to elicit the views of people in Scotland seems to me to exceed neither the Scottish Government's existing powers, nor the Scottish Parliament's powers to pass a "window-dressing" Act, but the result would only be consultative and the power to sever the union rests solely with the UK Parliament. A consultative referendum is political rather than legal in nature: it exerts political pressure but not legal sanction. (Of course, inaction by the UK Parliament on the matter in the event of a referendum result in favour of independence might lead to a unilateral declaration of independence.)

This article sets out why that is the case.

The Scottish Parliament

Any amendment of the Union with Scotland Act 1706 and the Union with England Act 1707 can only be made by the UK Parliament. By virtue of section 29 of the Scotland Act 1998, the Scottish Parliament may only make laws (that is, pass Acts) within its legislative competence, and:

"(2) A provision is outside that competence so far as any of the following paragraphs apply—

(a) it would form part of the law of a country or territory other than Scotland, or confer or remove functions exercisable otherwise than in or as regards Scotland,

(b) it relates to reserved matters,

(c) ..."

An Act amending the Articles of Union would arguably infringe paragraph (a) and certainly infringe paragraph (b), because paragraph 1 of Part 1 of Schedule 5 to the 1998 Act provides:

"1 The following aspects of the constitution are reserved matters, that is—

(a) ...,

(b) the Union of the Kingdoms of Scotland and England,

(c) the Parliament of the United Kingdom,

(d) ..."

At this point it is worth noting that the later provisions of Part 1 of the Schedule set out exceptions to the constitutional reservations (that is sets out constitutional matters which are devolved), one of which is relevant when it comes to looking next at the powers of the Scottish Executive, and is in these terms:

"2 (1) Paragraph 1 does not reserve—

(a) Her Majesty’s prerogative and other executive functions,

(b) functions exercisable by any person acting on behalf of the Crown, or

(c) any office in the Scottish Administration."

The Scottish Executive

The Scottish Executive is established by section 44 of the 1998 Act as follows:

"44 (1) There shall be a Scottish Executive, whose members shall be—

(a) the First Minister,

(b) such Ministers as the First Minister may appoint under section 47, and

(c) the Lord Advocate and the Solicitor General for Scotland.

(2) The members of the Scottish Executive are referred to collectively as the Scottish Ministers."

Since the SNP took power as the party with the most seats in the Scottish Parliament in 1997 the Executive has called itself the Scottish Government.

Sections 53 and 54 made provision for the transfer of ministerial functions from the UK government to the Scottish Government where relating to devolved matters, as follows:

"53 (1) The functions mentioned in subsection (2) shall, so far as they are exercisable within devolved competence, be exercisable by the Scottish Ministers instead of by a Minister of the Crown.

(2) Those functions are—

(a) those of Her Majesty’s prerogative and other executive functions which are exercisable on behalf of Her Majesty by a Minister of the Crown,

(b) other functions conferred on a Minister of the Crown by a prerogative instrument, and

(c) functions conferred on a Minister of the Crown by any pre-commencement enactment, but do not include any retained functions of the Lord Advocate.

54 (1) References in this Act to the exercise of a function being within or outside devolved competence are to be read in accordance with this section.

(2) ...

(3) In the case of any function other than a function of making, confirming or approving subordinate legislation, it is outside devolved competence to exercise the function (or exercise it in any way) so far as a provision of an Act of the Scottish Parliament conferring the function (or, as the case may be, conferring it so as to be exercisable in that way) would be outside the legislative competence of the Parliament."

The two devolved competencies of the Scottish Government (as executive) and the Scottish Parliament (as legislature) are therefore, as one would expect, tied together. The answer to the question "is holding a consultative referendum within devolved competence" is the same when speaking of either the Scottish Government or the Scottish Parliament.

So does the Scottish Government require new law, namely an Act of the Scottish Parliament, in order to hold the referendum? It seems to me that it does not because as mentioned above Scottish Ministers have acquired from UK ministers all the prerogative and other natural powers of the Crown, as well as statutory powers, with respect to matters within devolved competence. I covered earlier what the natural powers of the Crown comprise, but they would it seems to me include the power to hold a consultative referendum, assuming the money for it is voted in one of the annual Appropriation Acts.

The only legal requirement for obtaining legislative backing that I can forsee would arise if the Scottish Government considers it needs additional powers to compel relevant local authorities to make their premises and staff available for the count and to appoint returning officers. However, that is not to say that an Act of the Scottish Parliament may not be useful as political window dressing: it would show that the proposal has the consent of the majority of elected members as well as of the executive.

After the referendum

As mentioned above, the reason why I conclude that the holding of a consultative referendum is within devolved competence is that it is only consultative and has no direct legal sanction or effect. The wording proposed by the Scottish Government for the consultative referendum puts the question, whether the Scottish Government should negotiate a treaty with the UK government for Scotland to become an independent state.

One question arising from this is whether, after the negotiations which would follow a successful consultative referendum, a further referendum is required within Scotland approving the terms before the union is severed. The answer to this is that legally speaking it is entirely a matter for the UK Parliament when making the legislation repealing the Acts of Union. The Scottish Government says not, but the only influence that it could exercise on this is political and rhetorical. It seems doubtful that it would attempt a unilateral declaration of independence at this point, but that would be its only recourse if the UK government and UK Parliament were to press for a further post-negotiation referendum which the Scottish Government feared it might lose.

Of course, the relationships between England and Scotland may have become so damaged by the time the first referendum has passed and negotiations completed that the union may be beyond repair anyway, so making the question of a second referendum relatively insubstantial; and Alex Salmond would certainly be doing all he could to help the process of disrepair along. We do not yet know how far the patience of people in the remainder of the UK can be tested.

The aftermath

2011-05-08T20:39:00.003+01:00

A disappointment over the AV vote to be sure, but still some surprising outcomes from Thursday's elections.

First, the Tories increased the number of their councillors in England and the number of councils which they now control, which given that they are a party in government and already started from quite a high threshold is remarkable.

Even more remarkable is the result in Scotland.

The result in Scotland is principally the fault of the Scottish Labour party. In the last 20 years or so there has been an only partly concealed anti-Englishness about the politics they have espoused, to the point where they became blinded by their own propaganda, and this has now come home to roost. They spent their time running a campaign against "London" and the Tories, and then while busy pulling this straw man apart failed to notice the real enemy at their gates.

This raises a number of strategic dilemmas for the Labour party, both in Scotland and in the UK as a whole. The Tory-English bogeyman may work for Labour in UK elections in Scotland but it plainly doesn't work in Scottish elections, and they are going to have to come up with a new story which is more convincing than "vote SNP and you get independence". As it happens, whilst the odds are against Alex Salmond succeeding at a referendum, he is a very canny operator and success cannot be counted out. It will now be for him to start playing the grievance card in the period leading up to the referendum (which given a majority in the Scottish Parliament he is well placed to do), and hope to do so rather better than the Labour party's pitiful attempts in the past.

The referendum, if and when it comes, in my view will have a significant effect in England as well as in Scotland. It is difficult to predict how people in England will react to the sound and fury of the referendum going on to the north of them given that some of it will be about them. It is difficult to discuss Scotland's role in the Union without also discussing England's role in it, and Labour and the other unionist parties need to give thought to how arguments will play south of the border as well as in Scotland itself. More particularly, the UK Labour party are going to have to provide a new narrative for voters in England if they are going to recover their position there: otherwise those voters may want to remind them that they are no more to be taken for granted than are those in Scotland.

Altogether, we have a very interesting 4 or 5 years ahead of us; and the strategic headaches for Milliband Junior during that period are probably more intractable than the more transient ones at present bearing down on Nick Clegg.

A dismal campaign

2011-05-05T12:39:00.005+01:00

I have changed my mind during the run-in to the referendum today on introducing single transferable votes in single vacancy constituencies ("alternative voting"). This was not thanks to any arguments put forward by the Yes and No campaigns, but on my own reading, and some reflection on it.

What a dismal campaign it has been, full of half truths and froth. The Yes campaign began with the idea that they were going to win, and thought it only necessary to cement this by buying into the celebrity culture and parading a few half-knowns on their publicity material with platitudes that AV would modernise our politics. The No campaign were considerably more focused at the outset and just fought dirty. I feel a little sorry for the treatment of Nick Clegg in the admittedly well designed material put out recently by the No campaign which did, at last, alight on the main argument against AV, namely that it is more likely to give parties an exit route from their manifesto commitments.

That it should be Chris Huhne who raised this personal attack on Nick Clegg at cabinet on Tuesday adds particularly enjoyable irony, as he has been taking full advantage of Clegg's difficulties by positioning himself to displace him from the leadership of the party and appears already to have acquired and stored away the stiletto which will no doubt in due course be inserted between his colleague's shoulder blades. I have no particular love of the Liberal Party, who seem to me to be often composed of political chancers who are quite happy to hold as many incompatible views concurrently as they feel is necessary to obtain a vote: but nonetheless the way in which Nick Clegg's willingness to go into coalition, as it appears the country wanted after the last election, has been used against him in the campaign does seem somewhat unfair.

Amongst the ludicrous arguments the No campaign have come up with, and some people appear to have been persuaded by, is that AV infringes the principle of one person one vote. This is bogus: instead, AV enables a vote to be transferred from an unsuccessful candidate to one still in the running. It is in effect a more efficient (or at least cheaper) version of a run-off, where voters in an election get a second chance to choose between remaining candidates once the outriders are eliminated. This is indeed the system that the Tory party apply in choosing their leader: if the Tory leadership had been decided on the basis of first preference votes, David Davis would now be Prime Minister - David Cameron only won by picking up second preference votes in the second round. A more plausible argument against AV is that it treats second and third preferences (and so on) as being as valuable as first preferences, but that is true of any run-off system.

If no candidate has an overall majority of first preference votes, it seems to me to be reasonable that the successful candidate should be the least unsatisfactory one, and that is AV's main claim in its favour. It does mean that any MP will be more mindful of the views of all the voters in her constituency and not just concerned with pleasing her core vote as at present.

For election geeks, one last comment: I have read material claiming that AV and single transferable voting are different things. That is not the case. AV is a form of single transferable voting, albeit single transferable voting applied to single vacancy elections rather than multiple vacancy elections - the distinguishing feature of single vacancy STV (that is, AV) is that only the bottom candidates' votes are redistributed on elimination, rather than also those of any initial winning candidates: in single vacancy STV, the count is over once a candidate beats the 50% hurdle. One way of implementing proportional representation (which AV is not) is to apply STV to multi-vacancy constituencies; but there are other well known ways of implementing PR.

Inflation and hypocrisy

2011-03-23T19:52:00.006Z

In the budget today, the Chancellor announced that inflation this year is expected to be between 4 and 5%, and that it is hoped that it may come down to around 2.5% next year. Even if you believe the Chancellor (and I don't), and the prediction for 2012 is achieved, it is still above the level requiring Mervyn King to report to explain himself.

The Tory party like to portray themselves as the party of those who are self-reliant, who want to contribute to society rather than only take from it, and who want to make the most of themselves. Self-reliance means saving for difficult times. This includes making provision for old age. But the Chancellor's willingness to inflate himself out of the national debt is confiscatory with respect to just those people. Ordinary savings offer rates of interest which are way below the rate of inflation, and what meagre income that is received, even though much below the amount necessary to match inflation, is still taxed. Similarly, capital gains on savings investments are taxed even though, because of inflation, the gains may be entirely illusory: this is because the Chancellor is not prepared to index capital gains against inflation.

The Tories were supposed to raise the inheritance tax threshold. They haven't done it. They were supposed to replace the Barnett formula with a needs based grant distribution system for the UK. They haven't done it. On the last of those, this was also matched a Liberal Democrat manifesto commitment, so there is no excuse.

As it happens, for reasons explained in earlier articles in this blog, I do not support replacing the Barnett formula. The Barnett formula has the great advantage that it operates, so to speak, without human input: find out how much is voted in the annual Appropriation Acts for functions relating to England in any year on matters devolved elsewhere, and you then know exactly how much is to go to Scotland, Wales and Northern Ireland in that year. On the other hand, a needs based formula will be subject to annual arguments about relative assessments of need (which over time is likely to act to the disadvantage of those in England, because if the UK government acts neutrally as it ought to, there is no one to stand up for their interests).

Equally I do not support raising the inheritance tax threshold: I see no reason why children should expect to inherit their parents' wealth as a matter of right.

The point arising from this is not that the Tories' policies are necessarily wrong (they are on inflation, not on the others), but that the Tories are untrustworthy. They knew the economic condition of the country perfectly well at the time of the last election. If they didn't think something could be afforded then they should not have promised it. The Labour party, if in government, would probably have followed all the same steps on these issues. However, they would not have (and did not) promise anything different.

To make matters worse, some Tory policies seem to me to be bound to fail. The NHS reforms if implemented as intended will lead to unaccountable decision making by people it will be impossible even to identify - but it is doubtful those reforms are implementable. The Big Society as explained so far seems to have turned out to be a means of confiscating dormant bank accounts in England to make up for shortfalls in local government spending. I think that the policy on student fees for higher education is wrong and I think the Tories misunderstand the resentment at grass-roots level about the unfairness caused by only those students living in England having to pay the higher fees. The single policy which may have beneficial impacts and go some way to meeting manifesto commitments is the Localism Bill (in which I think there are some genuinely good things).

If the Tories end up with a reputation of being untrustworthy, as it seems to me they deserve, this will store up trouble for them for the future. The plan may be that as the next election approaches a pre-election budget will issue enough goodies to the Tories' natural supporters as to cause them to overlook their failure to meet their past commitments. That calculation may be wrong. Their natural voting supporters may not be fooled twice, and if AV were to arrive UKIP may well steal part of the Tories' lunch box. (Again, to avoid misunderstanding, readers of this blog will know I am opposed to UKIP policies on the European Union, but they are a threat to the Tories.)

Libya

2011-03-21T18:39:00.007Z

I have been listening to the debate in Parliament on Libya this afternoon and one could almost have gone back to debates of 150 years ago. There are echoes here of France and Britain's past involvements in Africa. Neither country could it appears resist the opportunity to appear on the world stage one last time. Given that both are now much less important (and capable) militarily than they used to be, it felt quite odd. And given that the need to reduce the deficit has been the reason given for many of David Cameron's government's domestic policies, what exempts this latest appearance on the world stage from the same deficit-led restrictions? No one in the debate in the Commons appears to question the assumption that Britain's tax payers must play a leading role in events in Libya.

At least this venture is probably legal so far (on some reasonable definitions of "legal"), but I have other practical misgivings. These stem first from my gut feeling that no one has a monopoly on morality (why Libya, which at least makes some attempt to promote its own version of equality so far as gender is concerned, and not, say, Saudi Arabia or Bahrain which are just as dictatorial and whose police states are equally without democratic credentials?); secondly, from my suspicion that the UN mandate to protect civilians is bound to lead to "feature creep" and is even now becoming seen as a mandate for regime change; thirdly, from my feeling that transitions to democracy have to come from within rather than from the outside; and fourthly, from doubts that there is a properly formed strategic view about the long term.

On the first and second points, Gadaffi probably is a criminal and probably did authorise implicitly or explicitly the bombing of the aircraft which crashed at Lockerbie. He probably did implicitly or explicitly lay down the ground rules which led later to the death of PC Yvonne Fletcher. He has very probably been responsible for many other deaths. But these are not the bases for the current intervention, and were they to be there would be an even stronger stench of hypocrisy given Tony Blair's and Gordon Brown's subsequent cosying up to him.

So, what is the sub-text to this? Is it to see that the provisional government at Benghazi takes over the mantle of government in Libya, and if so to what place will that lead and by what means have Britain and France acquired the right to decide that (it certainly falls outside the UN mandate)? What if the provisional government does not succeed militarily and the UN mandate to protect civilians just leads to a stalemate and a long drawn out civil war? Are there to be elections, and if so what will secure them and what will follow them? At what point will David Cameron think that the objectives have been achieved, and what will he do if it appears that an Islamist government may succeed Gadaffi: does he think that in that eventuality he has the right to intervene further to prevent that and, if so, does he think he will succeed, and what happens if the UN just cuts him off at the knees at that point?

And what happens if the UK's current floating military capability of one and a half aircraft carriers, two months' supply of paper darts and a few assorted support warships isn't enough to deal with the problem?

If one is optimistic, maybe the provisional government in Benghazi might quickly succeed in conquering Gadaffi's forces and Libya might end with a national government that is uncorrupt, respects the human rights of its citizens and makes some moves to democracy. A successful operation by Britain and France together may lead to the emergence of workable foreign policy structures within the European Union and the emergence of a military establishment to serve it. Any of those optimistic hopes for the Libyan situation could fail to eventuate, which could in turn derail such optimistic hopes for the European Union.

Census forms

2011-03-08T23:18:00.003Z

Like many others I have just received my census form to complete, or rather to keep until I know my circumstances on 27 March. It is a while since I last filled in one of these, and maybe my memory of the last occasion is clouded, but it seems quite intrusive.

What to make of the ethnicity questions? If you think of yourself as "White" you have four options (if you are in England at any rate, I have no idea what happens in other parts of the UK). These are (1) "English/Welsh/Scottish/Northern Irish/British", (2) "Irish", (3) "Gypsy or Irish Traveller" and (4) "Any other ...".

Leaving aside the point that as I last understood it England, Wales and Scotland are all in Great Britain (Northern Ireland technically is not) so the juxtaposition between the two seems somewhat odd, what are these descriptions supposed to mean in terms of ethnicity? These are after all ethnicity-specific questions, as there is a separate question about how you would describe your "national identity" which includes similar choices.

The easy option, the first one, seems a bit of a cop out and lacking in romance. Family folklore has it that as well as coming from the then indigenous population in Sussex, we have Huguenot input (from which the family name derived) and also some North African (Berber) pirates who happened to land and settle in the south-west of the country after one raid too many. It is said that everyone has an Irish great grandmother and that is probably also the case of me, and it is certainly true of my children via my wife.

Like 90% of the rest of the population, to fulfil my duty to truth and completeness to Her Majesty's Government I will probably have to put an entry under "Any other" as "Mongrel". Faced with these intrusive questions, I encourage others to do the same.

Come to think of it, a new "English Mongrel Party" sounds quite attractive, as a kind of ethnically inclusive party that most other UK parties seem to lack, with their post-imperial echoes. We could have St George as our patron saint, one of legends surrounding which is that he came from North Africa and therefore might be a distant relative, although if he existed at all I accept that it is more likely that he came from Palestine but, hey, there is probably some of that in me and most others as well. St George is suitably ambiguous on ethnicity.

At any rate, Archbishop Sentamu has been banging on about it again and he has always seemed quite a cool dude to me, and refreshingly unpredictable.

Law making for Wales

2011-03-05T16:18:00.004Z

So people in Wales have voted for the Welsh Assembly to have law making powers under Part 4 of the Government of Wales Act 2006 similar to those of the Scottish Parliament, and the UK follows its rudderless voyage to ever greater fragmentation.

With Wales, Scotland and Northern Ireland now with their own parliaments, it probably makes it impossible for there to be another Welsh or Scottish Prime Minister until the position of England is dealt with (there has never been a Prime Minister from Northern Ireland): although how much of that is the lingering memories of Gordon Brown, which will fade over time, or a permanent feature, could possibly be argued about (I suspect it is a permanent feature). It also makes it inevitable that the UK Parliament will become ever more England-centric, given that that is now the geographical unit with which the large majority of its business will be concerned, and their is little point in some of the politicians in the devolved nations making the snide remarks about that which have been emanating from those such as Carwyn Jones, who is unfortunately not a Welsh leader in the same league as Rhodri Morgan. The people in each of those devolved nations have after all voted for the arrangements now in place.

It also throws into focus the self-serving arguments of the Labour Party last month, that people in Wales should have greater representation in the UK Parliament per head than people in England, notwithstanding that around 80% of the legislation in Parliament will in the future relate to England only.

As a unionist I have to say I fear for the future of the United Kingdom. We have a ramshackle constitution, one of the main foundations of which now appears to be the maintenance of structures which will enable those in the current main UK parties to hang on to power in England, even if they have now lost power on domestic matters elsewhere. There seems to be no blueprint for the future, no plan as to where this is all leading us. Devolution may be a process and not an event, but there needs to be some common understanding amongst those in the UK about where it is taking us.

A propos of which, where is Nick Clegg's commission on the West Lothian Question, which was originally intended to be established last autumn? Well, at least the commission, if it is set up, will now have a position with respect to Wales to work on.

Localism

2010-12-17T21:10:00.012Z

The government's Localism Bill was introduced earlier this week and is to receive its Second Reading in the House of Commons shortly after the Christmas recess on 17 January. It is a big Bill and this article is not going to deal with all of it (in particular it is not going to deal with most planning issues). Instead it just gives an impression or overview.

Although showing signs of having been put together at speed (the explanatory notes only became available yesterday) Eric Pickles clearly has retained clout within the cabinet, as he has resisted the pressure that would have arisen within his department for them to be watered down. Some of the provisions are pleasingly radical, and others less so. This is the kind of Bill that can only be introduced comfortably in the first year or two of office.

Powers of local authorities

In my article on the Royal Prerogative I explored the difference between the powers of a natural person on the one hand, which includes the Crown, which in summary allow an ordinary person or the government to do anything not explicitly or impliedly prohibited by the common law or statutory provision, and the powers of a creature of statute such as local authorities on the other hand, which are limited to doing the things which statutory provision has authorised them to do (whether explicitly or implicitly).

Under the Bill, local authorities will be given power "to do anything that individuals generally may do": they would therefore acquire at law similar powers to those of the Crown.

This is subject to certain caveats, including one relating to "overlapping" powers. If the local authority has power to do something apart from these new powers, the exercise of which is subject to conditions, then the new power cannot be exercised except in accordance with those conditions. In that respect, it is a re-enactment of the rule applying to the exercise of the natural powers of the Crown set out in Attorney General v De Keyser's Royal Hotel [1920] AC 508 and explored in Shrewsbury and Atcham Borough Council and Others) v Secretary of State for Communities and Local Government [2008] EWCA Civ 148.

This is a very substantial new power for local authorities. It makes them first-rank public authorities on a par constitutionally with government departments.

However, just as the broad powers of the Crown are in practice limited by the requirement that government departments may only spend what is appropriated to them from the consolidated fund by an Appropriation Act or some other consolidated fund Act, so local authorities can only spend what they are given or can raise, and this brings us to referenda.

Referenda

Local authorities, and their cousins the police and fire authorities, will still be subject to government control of expenditure, but in a marginally more hands-off way than in the past. Governments may still set council tax ceilings, but these can be exceeded by the local authority on a referendum of all registered voters in the authority's area.

The key issue here is the extent to which the government will set unnaturally low ceilings with a view to driving down local authority spending through local voter reluctance. The fact that, under the Bill, expenditure which exceeds the ceiling is described as "excessive" expenditure rather than a more neutral expression such as "locally determined" expenditure (or even "supplementary" expenditure) perhaps gives the game away here: that the driver is expenditure reduction rather than an interesting experiment in practical local democracy.

Referenda also feature in another proposal. Any local elector can petition the local authority for a local referendum to be held on anything relevant to its functions, provided that it is signed by 5% of the local electorate (or a higher precentage stipulated by the Secretary of State) or submitted by a councillor. If the local authority then decides that the referendum should be held, it must take place between two and twelve months after the receipt of the petition. The local authority does not have to implement the result of the referendum (it is not binding), but it must consider it and give its reasons for the decision it makes in response to the referendum.

There is a further referendum-based idea, under which development to be carried out for, say, rural housing and community facilities can be carried out, without planning permission from the local authority, if it is mandated by a vote of more than 50% of the local residents on a referendum.

Abolition of the Infrastructure Planning Commission

I was never a great fan of the Infrastructure Planning Commission. From time to time the issue is raised by those lawyers who are not strong on the need for democratic accountability in decision making within a law-based society, whether the pre-IPC regime was consistent with article 6 of the European Convention on Human Rights. Article 6 provides that "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

When the ECHR was drawn up, the original drafters would I suspect have been surprised at the idea that this applied to planning decisions, but the jurisprudence of the European Court has held that the right to develop land as an attribute of the ownership of that land falls within the category of a civil right. Lawyers being lawyers, English jurisprudence has also managed to persuade itself that because Secretaries of State set national planning policy, they cannot of themselves be an "independent and impartial tribunal" in determining how their policy applies to particular cases. (That is in my view a serious logical error, but that issue is now beyond recall.)

The early Labour government was rather more sound about this than its successors, and they stood their ground in a series of cases comprised in R v Secretary of State for the Environment, Transport and the Regions ex p Holding & Barnes plc [2001] UKHL 23 and the other conjoined appeals known collectively as "the Alconbury appeals". Their Lordships came to the rescue against the legal technocrats, drawing on other jurisprudence of the European Court to the effect that in determining whether the requirements of article 6 of the Convention are met it is necessary to look at the whole of the process, and that it is not necessary that a court or some other independent body should be available to consider the matter afresh by way of a rehearing on an appeal on the merits. It was held that the then current principles of judicial review, coupled with the rules of natural justice as applying to the fact-finding processes of public inquiry, were sufficient to meet the requirements of the Convention.

Some of the gut thinking behind this view is illustrated in the words of Lord Nolan who said -

"In the relatively small and populous island which we occupy, the decisions made by the Secretary of State will often have acute social, economic and environmental implications. A degree of central control is essential to the orderly use and development of town and country planning ... to substitute for the Secretary of State an independent and impartial body with no central electoral accountability would not only be a recipe for chaos: it would be profoundly undemocratic".

Similarly, Lord Clyde said –

"One possible solution which is proposed is that in the cases where at present the Secretary of State is himself the decision maker, the cases for the most part which are likely to give rise to issues of widespread or even national concern, which may well have a wide impact on the lives of many and involve major issues of policy, the decision should be removed from the Minister, who is answerable to Parliament, to an independent body, answerable to no-one. That would be a somewhat startling proposition and it would be surprising if the convention which is rooted in the ideas of democracy and the rule of law should lead to such a result".

I was therefore somewhat surprised and disappointed when the later Gordon Brown administration set up just such a body to determine major infrastructure projects in England.

I am glad to say that the Tory government is of the Nolan/Clyde persuasion. Where you have a decision for, say, the major redevelopment of a town centre which will impact the lives of its inhabitants for the next 30 or 40 years, or a major new high speed railway line likely to be used for many years ahead, in my view it is quite wrong that such decisions should be taken under some dry forensic process by a body of people not answerable to the voter, or to anyone else for that matter. So full marks to Pickles on this one.

Other matters

There are numerous other provisions in the Bill, including some dealing with the right of local groups to take over defunct community assets, the security of tenure of public sector tenants, the abolition of regional housing targets and the abolition of home information packs (HIPs) on house sales. One remaining initiative which may have a beneficial impact is the proposal for the introduction of executive mayors, on the Mayor of London model (albeit with less powers), for the cities of Birmingham, Bradford, Bristol, Coventry, Leeds, Leicester, Liverpool, Manchester, Newcastle upon Tyne, Nottingham, Sheffield and Wakefield. There would be referenda on this in each of the cities concerned in 2012.

I hope these executive mayor referenda succeed. Such a collection of "English Barons" may have a moderating effect on subsequent attempts to claw back some of this local divesting of power.

As to what I would like to see in the future? As mentioned above, I would like to see local council tax accountability used not just as a means of driving down expenditure, with pejorative references to excessive expenditure measured against government targets, but have this transmuted into a form of local tax devolution. I would also like to see the powers of the new directly-elected mayors extended so as to be comparable to, and indeed go beyond, those currently held by the Mayor of London. However, that may be for the reforming zeal of a different government before the deadening hand of a number of years in office has taken its hold. The problem with this hopeful thinking is that such devolution in England is likely to be beyond the stomach of any incoming Labour government, so I am likely to be disappointed.

The separate government proposals for elected Police Commissioners (not in the Bill) contains within it a similar idea: bringing local accountability to decision making affecting areas of life in a community not at present adequately subject to such accountability. (The proposition put forward by some present and former chief constables, that the way law breaking is dealt with in a local community is a special operational matter that only a trained chief constable acting in accordance with his professional training can decide, is in my view wrong.)

Student debt

2010-12-10T12:00:00.004Z

It is sad when the only way it is possible to get politicians to respond to the concerns of ordinary people is to have a good rampage; but sadly, that is how disconnected we and they are. Our Labour politicians would no doubt have done roughly the same if they had managed to keep in power: they set up the Browne committee review in the first place, and a graduate tax is the same beast wearing different clothing.

Two points. First, after extensive research in pubs of my acquaintance I have yet to find anyone who thinks it is a good idea to saddle graduating students with between £30,000 and £50,000 of debt, before they have even got their foot on the first rung of the ladder. Camilla may not like paint being thrown at her car; but most families don't like their young adults being treated this way either. And this is before they have to battle with trying to buy their first house when they do find a job.

Secondly, compare the wall-to-wall coverage on BBC news of the demonstrations with the amount of coverage given to the issues at stake.

Anyway, here is some music for the moment .

The West Lothian question rumbles on

2010-12-03T23:52:00.004Z

I watched Question Time last night. It was the usual mix of politicians following their party lines (including Nadine Dorries tying herself up in knots) and John Sargeant arguing an implausible apologia for the BBC, to the effect that it would have been improper to delay the showing of the Panorama programme about FIFA until after the decision on the venue for the 2018 World Cup. Possibly one or two people might believe that.

The thing which drew my attention was the extent to which people are obviously getting concerned about increased higher education fees for students coming from England. John Sargeant was good on this (he said what he thought when not having to stand up for his former employer), pointing out that having a well educated citizenry is the key to future success, and that this country has managed to afford to educate its young people in the past when it was poorer and there seems no reason why it should not do so in the future. It is just a matter of priorities.

What interested me is the wedge this seems to be beginning to drive between people in England and Scotland. Outwardly it is unconscionable that students in England should pay large sums of money for their higher education when those in Scotland will not. A Scot and a person from England with similar qualifications may sit in adjacent desks at the same place of work in future, doing the same work at the same rates of pay, with one having to pay deductions against her income once she finds employment for as much as 20 years into the future, and one not. The Liberal Democrat proposals for a graduate tax do not seem any improvement on that: it is the same inequality in a different form, and indeed would be a form of double or super-regressive taxation - if it is true that graduates in general earn more, they pay more anyway through the existing income tax system

However this difference between England and Scotland, and now Wales also, is what devolved decision making is about. The overarching point on this is that every pound the Scottish government pays for higher education is a pound less that it can spend on something else within its devolved competence. There seems no reason, applying devolution logic, why this should cause friction within the UK, but the practical workings of devolution in this case, no doubt aided by the rantings of the Daily Mail, is doing so because the differential policy-making on higher education is, at the end of it all, simply unfair. And unfairness breeds resentment. The SNP must be loving it.

During the Question Time programme, Ken Livingston brought up the West Lothian question on this. Like it or not, it is a fact that student fees in England were only introduced in 2004 on the votes of Labour MPs for Scottish constituencies (and even worse, on a vote taken after the Scottish Labour party had decided against higher education fees for students in Scotland). Tom Harris MP, member for Glasgow South, has apparently taken exception to this, describing it as "anti-Scottish". Perhaps he has a guilty conscience as one of those responsible in 2004, but if not he should have. He has gone on to say that the West Lothian question has no answer and the Labour party should not get involved in considering it.

If it is really the case that there is no answer to the West Lothian question, then the Labour party in general and Tom Harris in particular should never have proceeded with devolution in the first place. If that is really the case, it is only a matter of time before the the current constitutional arrangements collapse. Let us image that Labour had managed to stitch together a deal with the Liberal Democrats, SNP and Plaid Cymru to form a government after the last election: it would have been wholly reliant on its Scottish and Welsh members to enact its legislation affecting England only on matters devolved elsewhere, such as education. The current angst over fees for English students would surely be dangerously magnified if the current proposed disparities for students from England were to have been imposed by MPs for Scottish and Welsh constituencies not subject to the additional fees. Arguments that there are knock-on effects on Scotland and Wales via the Barnett formula, while that formula lasts (it is due for replacement), would have cut little ice.

There are answers to the West Lothian Question, some of which I explore here, here, here and here . The Tory pledge to deal with it was, as part of the Coalition agreement, shunted to a Commission to be set up by the Deputy Prime Minister, Nick Clegg. He was supposed to have set one up during the Autumn, but will now apparently publish proposals for one "by Christmas". It would be foolish for the Labour party to follow Tom Harris's advice and fail to engage, if and when Nick Clegg can manage to muster the energy to proceed with it. They created the current devolution arrangements, and they must help to resolve the problems it has created.

Internet censorship

2010-11-29T01:31:00.010Z

The Serious Organised Crime Agency have put forward a proposal to Nominet, the quasi-private body which administers internet domains with the .uk suffix, for an issue group to be established to consider enabling SOCA to cause nominet and its UK ISP members to take down any internet domain on request of "an identified UK Law Enforcement Agency", that is, the police. The proposal can be found here. The proposal would set out the grounds for UK internet service providers to do this without breaching their contracts with their customers, or as the SOCA draftsperson puts it:

"Nominet does not currently have any clear obligation in its registrant Terms and Conditions that a domain name should not be used in connection with any activity that would constitute an offence under UK Criminal law. The group will discuss whether proposals should be put forward to change Nominet’s Terms and Conditions to give a contractual basis to suspend domains where Nominet has reasonable grounds to believe they are being used to commit a crime (e.g. a request from an identified UK Law Enforcement Agency)."

This is a classic misdirection attack. It is hard to argue with the initial proposition that criminally operated internet domains should be taken down where there are "reasonable grounds to believe they are being used to commit a crime", at least where the crimes are serious ones, although the really obnoxious and nasty ones set up masquerading as, say, bank sites which proceed to extract login details for online bank accounts and then loot them, will not operate from a domain formally allocated to the criminals anyway.

But this outwardly reasonable introductory proposition is then followed by the remarkable suggestion that any request from the police for a take-down would, ipso facto, comprise such reasonable grounds: so, no need for any inconvenient independent supervision or validation of such requests by, say, an independent tribunal or court warrant. It could be used to circumvent, for example, what limited protections there are in the previous government's yet-to-be-implemented "three strikes and you are out" copyright infringement proposals for those running a personalised internet domain, since such copyright infringements will often also comprise offences. A letter or telephone call from the police would be enough to get the domain removed from the internet, unless the ISP concerned decides to stand up to the police.

It is highly unlikely that this suggestion will be accepted in the terms in which it is put. It would put UK internet domain purchasers on a similar footing with respect to the police and internet censorship as those in the People's Republic of China. What is surprising is that SOCA thought it appropriate to make this suggestion, and it shows what myopic vision organisations such as this possess.

This illustrates the aphorism that if a state allows the police to dictate public policy, it will end up as a police state.

The link above tells you how to make your views know to Nominet, should you wish to do so.

Don't blink

2010-11-24T13:31:00.009Z

This article strays a little off the normal topic of this blog, but the current turmoils of the Eurozone require some comment.

These are worrying times both for those at the younger end looking for employment, and those at the older end who are not employed in the public sector and who hope to retire on pension policy savings which actually still have some value when they come to retire. From that point of view the question for those in the UK is whether there will be another global meltdown similar to the one of two years' ago, or whether it will be confined to the weaker Eurozone members. Who knows?

However, the current issue concerning Ireland is interesting as well as (in that wider context) alarming. I am reminded of the adage that if you owe your bank manager £100 you call him Sir, but when you owe him £1m, he calls you Sir. So it is with the Ireland: from the negotiating point of view the Irish government is in a strong position, possibly made even stronger by the doubt about whether it can actually pass its austerity budget at the beginning of next month. It seems difficult to believe even Eurozone ministers think the proposed bail-out package for Ireland will deal with the current situation faced by Ireland, notwithstanding what those ministers say, and certainly the markets don't believe it. The problem with Ireland is not an inadequately performing economy, but the fact that the Irish government has guaranteed the debts of the Irish banks which are in turn so large that the Irish economy cannot finance them. The flagrantly imprudent behaviour of the two Irish banks concerned, left uncontrolled by the Irish government, has brought the Irish economy to its knees.

Any further loans are just not repayable. Ireland either needs real rather than pretend capital to refinance its banks, that is gifts and/or equity stakes not loans (no private investor is going to put equity in), or for creditors to take a discount or 'haircut' on the banks' repayment obligations, by perhaps as much as 50%.

I would be surprised if the Irish government doesn't manage to achieve this in due course: that depends on whether other Eurozone ministers place a higher price on keeping the Eurozone in its present form intact, or on saving their own taxpayers' money, and in particular at what point German ministers lose their nerve when faced with a forthcoming election and electors unhappy with financing the deficits of Ireland, Portugal and Spain. We will probably have a combination in a year or two of both these new loans being written off or turned into notional equity, and compulsory creditor discounts.

Predictably, the Scottish bank RBS features prominently amongst those creditors who have made some of the past loans which are now likely to have to be discounted, as also does to a lesser degree Lloyds-HBOS. This is one of the reasons why the UK government is keen to help.

We also need the European Central Bank to stop accepting Eurozone sovereign debt at face value and start including a risk element in any further loans, so as to re-establish discipline and begin transferring sovereign debt funding (and the providing of equity to the banks concerned) back to the markets. I simply don't believe those who say the Eurozone is unsustainable. It is only unsustainable in the form in which it has so far been allowed to operate: and I fully expect that the UK in future decades will, or at least should, find its home in a reformed Eurozone.

The Irish government already knows how to play this: don't blink first.

The Woolas election judgement

2010-11-09T12:06:00.008Z

On Friday, an Election Court composed of two judges of the High Court found Mr Woolas guilty of illegal election practice during the May general election, contrary to section 106 of the Representation of the People Act 1983. The automatic consequence of this, under section 159(1) of that Act, is that Mr Woolas's election is void and a by-election will have to be held to fill the vacancy. In addition, under section 173 of that Act as amended by section 136 of the Political Parties, Elections and Referendums Act 2000, Mr Woolas will not be able to stand again for 3 years.

Much has been said, some of it it must be said of a self-serving nature by politicians, that this judgement will stifle honest political debate at election time. That is unlikely. Very few matters are covered by section 106 of the 1983 Act, and none of them are concerned with things that could reasonably be described as political.

The relevant parts of section 106 provide as follows:

"(1) A person who ... —

(a) before or during an election,

(b) for the purpose of affecting the return of any candidate at the election,

makes or publishes any false statement of fact in relation to the candidate’s personal character or conduct shall be guilty of an illegal practice, unless he can show that he had reasonable grounds for believing, and did believe, that statement to be true."

The important point here is that not only must the candidate concerned have attacked a rival's personal character or conduct in order to affect the outcome of the election, but he or she must also either have not believed or had no reasonable grounds to believe the subject matter of the attack. In short, it is concerned with smearing opponents by telling lies which go to matters of fact and conduct rather than to politics and political views. The reasonable assumption behind section 106 is that we would not want to be represented by people who think that that kind of behaviour is acceptable.

The things done by or on behalf of Mr Woolas which the election court considered fitted this description were the distribution of an election leaflet called The Examiner, in which the court held Mr Woolas "made a statement of fact, the meaning of which was that the petitioner attempted to woo, that is to seek, the electoral support of Muslims who advocated violence, in particular violence to [Mr Woolas]", and the distribution of another leaflet called the Labour Rose, in which the court held that "he made a statement of fact the meaning of which was that the petitioner had refused to condemn extremists who advocated violence against [Mr Woolas]".

The election court considered that alleging that a rival candidate sought support from those who advocate violence against another candidate and refused to condemn such violence comprised an allegation concerning personal conduct and character, and that Mr Woolas neither believed these allegations nor had any reasonable grounds for believing them.

The election court also found that a third illegal statement had been made by Mr Woolas against his opponent, namely that in "an earlier election address the respondent had made a statement in fact, namely, that the petitioner had reneged on his promise to live in the constituency. ... It suggests that [the opponent] is untrustworthy. The statement was false and [Mr Woolas] had no reasonable ground for believing it to be true and did not believe it to be true."

The last matter (Mr Woolas's allegation that his opponent had reneged on a promise to live in the constituency) does not seem the most egregious of acts, even if it were to be a lie told in the heat of battle, and the first two falsehoods referred to by the election court were perhaps on the borderline of the distinction between illegal character assassination and robust political argument. Mr Woolas yesterday applied to the High Court for permission to proceed by judicial review against the election court's decision but this was rejected by the judge considering the application on the ground that the election court, constituted as it is by judges of the High Court on the election panel, was not subject to judicial review. It appears the matter will now be headed for the Court of Appeal.

However, the quashing of the election court's decision will be difficult to achieve. The findings of fact by the election court are ordinarily conclusive (section 144(1) of the 1983 Act), and the extent to which the Court of Appeal would be willing to consider this is unclear. Applying the principles of Anisminic v Foreign Compensation Commission [1969] 2 AC 147, Mr Woolas would probably have to persuade the Court of Appeal that either the election court erred on a substantial question of fact (about which it should be noted that the election court had access to the local labour party's e-mail records, so that is going to be a considerable ask) or on a substantial question of law, or that it reached a view on the facts concerning the illegal nature of the matters done by or on behalf of Mr Woolas that no reasonable election court could reach. This is going to be hard to do.

You'll never walk alone (even in Texas)

2010-10-14T21:24:00.014+01:00

For those who love football, Liverpool FC's plight, although originally a source of amusement, is now a cause of sympathy from those, such as me, who follow a different colour. (Even though it is perhaps a welcome distraction from Tuesday's events, although in truth England are still in a very strong position and it is too early to wonder where you last put away the panic button.)

From that point of view my last article, about the conflict of laws was quite prescient.

So we have a judgment of Mr Justice Floyd in the High Court in London on Tuesday that it is within the power of the board of directors of Liverpool FC to proceed with a sale of the club (to John Henry who happens to be the current owner of the Boston Red Sox baseball franchise), and a temporary injunction from the District Court in Texas restraining the sale on amazingly lurid allegations stated in Hicks' and Gillett's application. On the grounds that extraordinary claims require extraordinary evidence, and that if true they would certainly have defeated the proceedings in London, those allegations probably require to be treated with considerable suspicion.

Then today we have an injunction from the High Court of England and Wales requiring Hicks and Gillett to withdraw their suit in Texas by 4pm tomorrow.

The main purpose of the temporary injunction in Texas appears to have been to delay the sale beyond the closing date for the Henry deal, which is tomorrow. Whilst the board of Liverpool FC can give a fan's two fingers to the injunction of the District Court in Texas, the American purchaser cannot since contempt of court warrants issued by the court in Texas can be executed in all of the states of the US.

However, it looks doubtful if this delaying tactic will now succeed. First, Henry has indicated that he will extend the closing date until the Texas injunction is discharged. Secondly, Gillett and Hicks are in a very weak position both for geographical reasons - Liverpool, and therefore their investment, is situated in England - and also for legal reasons - a judgment in proceedings to which they were parties and to which they have already submitted to jurisdiction (as in truth they had to) has been issued against them which will be recognised according to the principals of private international law. The board of Liverpool FC are very well advised (Slaughter and May are about the best you can get) and they have attacked this weakness.

Were Hicks and Gillett to fail to meet tomorrow's 4pm deadline given by the High Court in London, any warrant of arrest for contempt of court is unlikely to be executable in Texas, although it would preclude the pair attending further board meetings. Unfortunately for Hicks and Gillett however, any monetary penalty imposed on them, and any damages awarded for losses arising to the club caused by the continuation of the Texas injunction in defiance of the court in London, will be executable against their assets in the UK, and in particular against their interests in Liverpool FC. So they are going to lose on either count.

This regrettable saga does yet again show the folly of the vogue two and three decades ago for clubs to float themselves publicly on the stock exchange, thus making themselves vulnerable to highly "leveraged" take over bids ("highly leveraged" means "heavily indebted" to those who don't like euphemisms). It also again illustrates the dangers of foreign ownership of English football clubs, and of American owners in particular, who don't understand what they are getting into. Let us hope for Liverpool FC that this particular deal is not just jumping from the frying pan into the fire.

On the subject of American sport, what a fine display of bear-down pitching in this week's divisional series of the baseball play offs, particularly by Roy Halladay, Cliff Lee, Tim Lincecum and Derek Lowe, play-off pitching at its absolute best. We still have Halladay, Lee and Lincecum to enjoy in the championship series. My prediction? For the world series, Philadelphia representing the NL and New York representing the AL (but Texas taking them to the last game), and beyond that, too close to call.

Update (Friday 15th October)
Hicks and Gillett complied with the injunction issued by the English court, and apparently the deal with Henry has now been completed. That part of the proceedings now seems to be over, but the pair have indicated they intend to bring, or continue with, a $1billion lawsuit against the other directors of the club and RBS. Given that they bought the club originally for £174m in 2007 and have since done little more than increase the debt, that seems a somewhat preposterous figure, but everything comes big in Texas.

Now there will be disputes about venue no doubt, and whether that should be Dallas or London. If the directors are not resident in the US and do not have assets there, and do not submit to the jurisdiction of the court in Dallas, then they can ignore any judgment of the Dallas court as it would not be enforced in England, and the same would apply to the club itself if they do not have a place of business there. But that luxury would not apply to RBS. No doubt they will apply for proceedings to be removed to London, which is the natural forum for the matter, but American courts do have a tendency to think that there is nothing wrong with telling the rest of the world how to do their business, so that will be the next saga to have played out.

The Conflict of Laws (Eady v The World)

2010-08-13T16:11:00.053+01:00

Every nation state has its own laws, and methods of enforcing them. Most federal countries, and some non-federal ones (such as the United Kingdom), have several versions of these applying in different parts of their territory, forming separate legal jurisdictions.

How these different legal systems interact at the level of civil law (as opposed to criminal law) forms what is known as private international law, also called the conflict of laws. Conflict of laws is perhaps a more accurate description because, as mentioned, conflict issues can arise within a nation state as well as between nation states.

Conflict of Laws

When considering contracts or wrong doing having substantive effects in more than one legal jurisdiction, it is necessary to determine three issues:

1. Which courts have jurisdiction on the matter? This is determined separately for each potential jurisdiction by applying the rules of that jurisdiction, and might be more than one, leading to the phenomenon of "forum shopping".

2. What system of law is to be applied in deciding the case? Again this is determined according to the rules of the court accepting jurisdiction in which the proceedings are brought. It need not be the same as the jurisdiction in which the particular case is tried. For example, a court in England may have jurisdiction in a matter but decide that, on the facts of the case, French law applies. It could be even more complicated than that, and can be self-referential: for example the English court in this example could further decide that under French law it would be decided that English law applied, so making English law the applicable law, a self-referencing called renvoi (sending back).

3. Are the judgments (say, for the payment of money) of the particular court which decides a matter enforceable in other jurisdictions within which the unsuccessful party has assets and so against which the judgment can be satisfied?

In the case of an alleged breach of contract, the contract can specify which courts have jurisdiction and which system of law applies, but in the case of other wrong doing, or in cases where a contract does not specify these things, there are complex rules to determine this, which as mentioned may be different in different jurisdictions. Within federal jurisdictions the rules are generally so far as relevant consistent between the federal entities (so the rules of conflict according to the legal system of the State of New York would generally be reciprocal with those of the legal system of the State of California, and necessarily so in the case of federal law itself). Within all of the European Union other than Denmark, it is decided in accordance with Council Regulation 44/2001.

Likewise, within the United Kingdom, the conflict rules are so far as relevant the same in the legal systems of England and Wales, Scotland and Northern Ireland, and each recognises and will enforce judgments of the courts of the others, notwithstanding that Scottish civil law is in some respects quite different from the common law in Northern Ireland and England and Wales. (The common law in Northern Ireland is to all intents and purposes the same as that in England and Wales unless a statutory provision has decreed otherwise, as indeed is the common law of the Republic of Ireland: to that extent the basic elements of the law of the Republic are substantially closer to those of England and Wales than is the civil law of Scotland.)

Defamation and freedom of speech

One area of tortious liability which can differ markedly between jurisdictions is that of defamation. Defamation law in the jurisdictions within the United Kingdom is more careful of people's reputation (and therefore more restrictive of the freedom to defame and so freedom of speech) than it is in some other countries, and particularly in the United States.

The wording of the 1st Amendment to the US constitution in the Bill of Rights concerning freedom of speech ("Congress shall make no law ... abridging the freedom of speech, or of the press") is not dissimilar in sentiment to Article 10 of the European Convention on Human Rights ("Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers"), which is a restatement of Article 19 of the Universal Declaration of Human Rights adopted by the UN General Council. No legal jurisdiction regards freedom of speech as entirely unfettered: all jurisdictions have some limitations on, say, incitement to violence or the deliberate dissemination of falsehoods. One key difference between jurisdictions is the extent to which either malice (improper motive) is required, or negligence in failing to take reasonable steps to find out whether an utterance is false before making it, in order for defamation proceedings to succeed.

Unlike some legal jurisdictions, in the UK malice or negligence on the part of the defamer need not be proved by the plaintiff in order to succeed in a claim of defamation: malice or improper motive is relevant only to whether certain defences may be defeated, such as the defence of fair comment (comment on matters of public interest which are reasonable statements of opinion based on stated matters of fact which can be shown to be true) or the qualified privilege attracted by "Reynolds" responsible journalism. In the UK, the plaintiff in the first instance need only prove that something was said or published to third parties by the defendant that is materially adverse to her reputation and so defamed her. After that, it is for the defendant to establish her defences (if she can) and the plaintiff to rebut them if such defences are offered.

The SPEECH Act

On Wednesday an Act of the US Congress entitled the Securing the Protection of our Enduring and Established Constitutional Heritage Act of 2010 (otherwise known as the SPEECH Act) came into law. It provides that "a domestic court shall not recognize or enforce a foreign judgment for defamation" unless the foreign law which was applied in giving judgment provides the same protection of freedom of speech and of the press as does US law, or the defamatory act concerned would also have been found defamatory according to the law of the US State in question (including under the 1st Amendment of the US Constitution).

This legislation of Congress was aimed at the United Kingdom, and Eady J in particular. Mr Justice Eady has become the high priest in English law of those arguing the cause of protecting reputation and privacy above most other considerations. The case which brought him into conflict with the US constitution, via private international law, was Mahfouz v Ehrenfeld. Dr Rachel Ehrenfeld, who is a US citizen and resident in the State of New York, wrote a book entitled "Funding Evil", which makes a number of claims about how international terrorism is funded.

A Mr Mahfouz and two of his sons were alleged in the book to be involved in financing terrorism (a matter which has never been proved in court and indeed, as mentioned below, in other legal proceedings has been accepted as being false), and they sued Ehrenfeld for libel in the High Court of England and Wales. They were resident in Saudi Arabia at the time and Saudi citizens, although they appear also to have acquired Irish citizenship. The book was not explicitly offered for sale by sellers within the United Kingdom, but 23 copies had been purchased by people in England from online booksellers situated in the US and a worldwide audience presumed to include people in England and Wales had visited an ABC news website in the US containing the first chapter of the book which included the allegations. That was sufficient to found jurisdiction within England according to English law. Ehrenfeld, not surprisingly, chose not to appear or defend herself, taking the view that being a US citizen and a resident of the State of New York selling a book marketed in the US, the English High Court could mind its own business.

One can speculate that the English courts had been chosen by Mr Mahfouz notwithstanding that vastly more copies of the book had been disseminated in the United States because, as mentioned, English law gives less scope to defame in public comment than does the 1st Amendment and, as importantly, by placing the burden of proof of the defence of fair comment or responsible journalism on the defendant, allows default judgments to be issued more readily; and also as a matter of course English courts normally award lawyers' fees to the successful party, whereas jurisdictions in the US generally do not. The Mahfouz's lawyers gave as their reasoning for their choice of venue that "they maintain residences, transact business and have reputations to protect in [the jurisdiction of England and Wales]", which is a fair point particularly as they did not appear to have any business or other interests in New York state, but hardly explains why proceedings were not also brought in New York state for an injunction in order to stop the flow at source.

Eady J made a default judgment as (having decided that the English courts had jurisdiction by virtue of the 23 copies finding their way to England) he was more or less obliged to do by way of a declaration of falsity on an undefended suit with a competent set of affidavits on the plaintiff's side, so one cannot necessarily criticise him for that. However, the further remedies he saw fit to impose appear to have been the point at which he overdid it. He awarded each plaintiff £10,000 (the maximum allowed on summary default judgment) and awarded £114,000 costs, when nominal damages and no legal costs may have been the choice of many other judges faced with forum shopping of this kind on events occurring almost entirely in the US. More oddly, he chose to continue an interim injunction prohibiting further copies of the defamatory material reaching England and Wales which, given the international nature of the internet and of online sellers, would have been impossible to comply with unless Ms Ehrenfeld and her publisher (Bonus Books inc) were to have retained the power to terminate or modify any sale agreements with US bookshops (about which no inquiry by the judge appears to have been made), and would have been incapable of complete achievement even if they had, particularly if suppression would have been unconstitutional in the US. Even if the injunction had been capable of being complied with and not unconstitutional, it would simply have been unenforceable in the US and so hypothetical. The correct remedy would have been against any UK importer, but of course there was none.

Yes, apart perhaps from the over-broad (and in effect unenforceable) injunction, Eady J had the power to do what he did (under section 8 of the Defamation Act 1996) but more regard, in determining remedies, to the kind of considerations which would have informed a decision on venue would have result in a more sane set of orders. Indeed, to have given weight to the fact that there were numerous hits on a US news website situated only in the US (ABC News) is I suggest absurd.

The other side of the argument

So far as concerns Mr Mahfouz, it should be noted on a point of fairness that he has succeeded amongst other matters in France in defamation proceedings against a publication entitled "Le Livre Noir de la CIA" which alleged amongst other matters that he was involved in funding terrorism, and has obtained an apology and a financial settlement from the University of Cambridge Press in respect of similar claims made in a book "Alms for Jihad" published in the UK, from the Mail on Sunday in respect an article in that paper, and from Pluto Books in respect of a book they published, which clearly were proper for the jurisdictions of France and of England and Wales respectively.

From his point of view, if your business interests and reputation are being damaged, you take your remedies where you can find them, which is what he has done. It must also be exceedingly tiresome to be subject to claims that you are involved in financing terrorism if in fact you are not, and if your charitable giving is represented as supporting terrorism. He has also donated all or part of his award in these cases to UNICEF.

I am not particularly opposed to the laws of defamation as applying in defamation proceedings; and Dr Ehrenfeld could have opposed England and Wales as the venue at the outset (but probably had good cause not to, as it would have conceded jurisdiction if that opposition had been decided against her by Eady J given his reputation and previous involvement in some of the other cases brought by Mr Mahfouz referred to above, and of course also cost her not insignificant sums of money). However in a world of world-wide electronic communication, some sanity has to prevail in the remedies awarded, particularly on default judgments. It is that point which the SPEECH Act is intended to address, but which one might have hoped with the application of a little more common sense would not have been necessary¹.

Forum shopping more generally

Lest anyone think that the UK is particularly blameworthy for exporting its version of defamation law to the world, it should be noted that, leaving defamation out of account, the US, with its litigation friendly culture, is by far the greatest haven of forum shopping, to sometimes remarkable degrees. Interested readers can consider the litigation involving Spamhaus LLC (an anti-spam email organisation), under which an Illinois court took upon itself the right to determine a case involving a company registered under English law with no offices or business activities in any part of Illinois, or indeed in any part of the the US. It became so serious that in a subsequent partly successful appeal the US government put to the court its own view on points of law on domain registration as an interested third party, because if the threatened decision on this had stood (an order of the court requiring ICANN to cancel Spamhaus's internet domain registration), international governments would no longer have accepted the function of ICANN in issuing domain names: that would have been transferred to the International Telecommunications Union, whether the US had liked it or not.

US "fishing expedition" type discovery, coupled with inattention to jurisdictional issues by US courts, has also led to bogus lawsuits being brought in the US for the purpose of acquiring evidence for proceedings elsewhere, so as to require the US Supreme Court to issue guidance on the matter.

____________________________________________________

¹ On another decision of Eady J, this one overturned on appeal, see this articl e. Eady J's idiosyncratic views on the responsible journalism defence also received an unfavourable review by Lord Hoffman in another case, in paragraph 57 of Lord Hoffman's opinion.

The Final Holtham Commission Report

2010-07-13T20:57:00.040+01:00

The final report of the Welsh Assembly's Independent Commission on Funding and Finance for Wales (the Holtham Commission) has been out for a week now, but was well trailed before then. I have refrained from commenting on it until having an opportunity to read it.

It follows on from its first report this time last year, and in view of the first report's themes, the conclusions and recommendations in the final report should come as no surprise. It's three main proposals are the introduction of a needs based block grant system for the UK to replace the Barnett formula; devolved income tax and other tax raising powers within Wales; and borrowing powers for the Welsh government and assembly.

This article does not deal with borrowing powers.

Needs based block grant

I will not say much about block grant and the Barnett formula, because I have commented on it before in the context of the report of the Richards Committee and on other occasions.

My prediction has always been that any government is going to struggle with the replacement of the Barnett formula, because a needs based formula would require reducing the Scottish block grant. Well in theory it wouldn't - the present Barnett system for Scotland could be retained and a needs based grant introduced for Wales - but the idea that those in England can always expect the worst outcome for them in order to further the interests of the devolved administrations may result in another (although more peaceable) Pilgrimage of Grace descending on London from the north of England, and this time perhaps from the south as well. (Although at first mainly to do with religion, in the Pilgrimage's second phase, feelings boiled over into insurrection partly because of fears of new taxes and economic favouritism and not just a love of the Old Church.)

There is also the problem of defining need. The Holtham Commission's proposals in its first report go to some pains to explain how this can be done, but different parts of the UK (and in particular those in England who have no one explicitly batting for them) are likely to harbour the suspicion that a needs criterion which is at heart subjective, whatever outward system of measurement may be devised for it, is being engineered against them.

Certainly the coalition seems to have put it on the back burner and I don't think the latest Holtham report is going to change this.

Devolved income tax

It is useful to compare the Calman Commission proposals on devolved taxation for Scotland with those of the Holtham Commission for Wales. Holtham can be thought of as a development of the Calman proposals. It is rather more "Calman-revised" rather than "Calman-plus".

In summary, under Calman the UK rate of income tax less 10% would apply in Scotland with a commensurate reduction in UK block grant (whether that grant comes from the Barnett formula or something else). The Scottish Parliament could then decide how much of the missing 10%, or more, is to be paid by Scottish tax payers. In effect they could set the income tax rate applying in Scotland to anything they want provided it is not more than 10% below the UK rate (and so either keep or suffer the difference), but cannot alter tax bands or differentials between bands. As well as tax bands and differentials remaining in UK government hands, so would the income thresholds for them, and allowances.

Under the Holtham Commission proposals, 50% of UK tax rates in each tax band would apply in Wales. The Welsh Assembly would then decide how much of the missing 50% in each band (or more) is to paid by Welsh tax payers, and could decide different rates for different bands (so they could decide to make Welsh tax less progressive or more progressive than UK tax), as long as the rates fixed by the Assembly are within 3% of the UK rate for the band. They could not alter the thresholds applying to each band, nor allowances.

Holtham also specifically deals with the key issue of how UK and Welsh growth would interconnect. The offset against the UK block grant contribution representing the 50% of income tax in Wales which is henceforward to be managed by the devolved institutions would be determined once and for all on the new system coming into effect, and would thence be indexed by reference to UK-wide growth of the tax base. So the Welsh Assembly and government would be rewarded or penalised for their own performance in financial management to the extent of the income tax levied in respect of that "missing" 50%. Something similar did not explicitly form part of Calman, and has since been one of the criticisms of the Calman report. However the Holtham Commission's proposal on this also has its consequences, which I deal with further towards the end of this article.

This is an interesting but odd mixture of concepts. Ostensibly 50% of income tax is to be "devolved", but so far as concerns rates of taxation it is only in fact devolved to the extent that the tax must be within 3% of the UK rate, so as a description this is somewhat misleading. This 50% really determines the amount of Welsh tax-take which is to be directly available to the Welsh Assembly and Government as a link to the economic performance of Wales.

It is interesting to see the report's reasoning behind enabling the Assembly to set different rates between tax bands. The example given in the report concerned higher rate payers migrating to England if they would otherwise be hit by the Assembly increasing the basic rate of tax, given the close proximity of most of Wales to England and that much of the tax base comes from the border areas of Wales: Holtham wants to allow less progressive taxation in Wales, which will surely be a difficult sell politically. (Holtham is persuaded by the "Laffer curve" for higher rates of income tax in areas where taxpayer mobility is a significant factor, under which increasing higher rates beyond the Laffer maximum can result in a reduction of the tax taken. It implies that those only on the basic rate of income tax are a "captive audience" unlikely to move to England if that rate is raised above the rate set by the UK Parliament for England and Northern Ireland.)

Other tax matters

Holtham also recommends consideration should be given to devolving rates of corporation tax, but this is complicated because of EU rules on state aid.

As in the case of Calman, it recommends that stamp duty land tax should be wholly devolved, and (unlike Calman) capital gains tax on property and land. By "property" it appears to mean things affixed to land rather than chattels or non-physical property. It also recommends as in the case of Calman that landfill tax and aggregates levy should be devolved.

The wider picture: (1) need and the block grant

I said I would comment further on how the block grant would work. The use of need as the determining factor in block grant allocation could be seen as the enemy of fiscal responsibility, the reinforcing of which the report states is one its aims. It means that if the devolved administration fails to administer the economy well and economic performance diminishes, then the UK tax payer is, through a needs based formula, there at least in part to soak up the consequences of the failure: so there is a contradiction at work here. The same could also of course be said about the benefits system, but few would want to argue against UK-wide benefits unless the UK were to be split into entirely separate economic units.

The report's recommendations would bring about some linkage between good financial management and an appropriate reward for the devolved administration, by freezing the 50% "offset" against the needs-based block grant to which I have referred, and then indexing it against the UK-wide tax base.

Of course a fixed formula such as the Barnett formula, with the application of local taxation on top of that and the same frozen offset, would reward performance just as well, leaving the workings of the Barnett formula and the UK benefit system as the UK's response to need. Any system may have to be rebased from time to time, even one following the Holtham approach. One could argue that Barnett can be rebased now on a one-off needs basis once devolved taxation is first introduced, with occasional rebasing as required thereafter, rather than making annual arguments about relative need between the constituent parts of the UK a permanent feature of the future government of the UK.

The wider picture: (2) the UK dimension

On its economic analysis, and its consideration of how that plays out in relation to devolution, the Holtham Commission is very thorough. It also makes much more of a nod to how its proposals affect the integrity of the UK as a whole than does Calman. It comments that "We have tried hard, both in this report and in our previous publications, to avoid any suspicion of special pleading", with a whole section elsewhere devoted to "The dimensions of the union between Wales and the rest of the UK". Although the latter section of the report considers, amongst other matters, what it describes as "negative spillovers", it does so only in the fields of economics and tax competition. It does not deal with the wider political consequences, nor dare I say it, the wider legal-constitutional aspects.

I am sure regular readers will have realised that this is still an area which worries me.

In whatever way the relationship between achievement/reward and devolved taxation may be managed, the outcome of these proposals would be that Scottish income tax would be set by the Scottish Parliament provided it is at a level not more than 10% below the UK rate, and Welsh income tax would be set by the Welsh Assembly provided it is within 3% of the UK rates. Since no Scottish Parliament is ever going to wish to set the income tax rate applying in Scotland which is at a level more than 10% below UK rates - it would be completely unrealistic unless there were to be fiscal autonomy giving rise to a wholesale redesign of the tax system in Scotland - the net effect is that the Scottish Parliament would henceforward set the rates of income tax applying in Scotland. The Welsh Assembly would be subject to the plus or minus 3% cap as against UK rates to which I have referred, should the Holtham recommendation on this be accepted, but any thought that an Assembly might want to set it outside those bounds anyway is somewhat illusory. The devolved institutions would also set their own rates of landfill tax and aggregates duty, and might in due course have areas of capital gains tax for which they set the rate.

Under these proposals, the other remaining links with UK rates of income tax would consist only of the thresholds applying to each income tax band (in effect, the "definitions" of the bands) and, for Calman and Scotland only, the differentials between these bands. This represents a substantial deepening of the West Lothian Question, given the constitutional link between representation and taxation. If income tax rates applying in Wales or Scotland were to be less than those in England, and the higher rates in England were only to be carried by virtue of the votes of Scottish and Welsh members, it is easy to see the trouble that this might cause.

In short, the present arrangement under which the devolved institutions are responsible for spending large sums of money from the UK Treasury whilst having limited responsibility for raising it (and none at all in Wales) can and should be viewed as an anomaly. However, is it an improvement to solve that anomaly by making another one worse, and is the union made more secure by doing so?

The answer to that may be yes, but this is a debate which has been completely lacking so far, yet one which needs to be had, and which will come back to bite us in due course if we don't.

----------------------------------------

Update: An exchange of comments made on this article has led me to the conclusion that, as far as income tax is concerned, the Calman proposals and Holtham proposals do not significantly worsen the West Lothian question (although I still think eyebrows would be raised if higher rates were to exist in England only by virtue of the votes of members for Welsh and Scottish constituencies). To see why, it is necessary to think in big and implausible numbers. Let us say that the Westminster Parliament were to decide that income tax should go up by 5%, and the Scottish Parliament were to decide not to follow this but instead to keep rates in Scotland as they are. They would be entitled to do this, but would take a significant revenue hit. Only the top 5% of income tax they set would supplement the block grant, rather than 10%, so if they wanted to make up the difference they would have to think about raising local taxation (eg through non-domestic rates or domestic local taxation) or finding the money in some other way.

Of course, for taxes which are to be wholly devolved, such as landfill tax and stamp duty land tax, the West Lothian question does apply in full force, but these are not taxes likely to start pulses racing (although interestingly it was stamp duty which was one of the issues which finally drove the American colonies to rebellion).

Unicorns and trade marks

2010-07-02T11:56:00.006+01:00

Here is a bit of humour to help lift World Cup gloom for those in England, following the last-16 stage.

The law of trade marks comprises one of the branches of the law of intellectual property. Unlike copyrights and patents, trade marks do not protect the implementation of an idea by the way of patentable invention, nor actual creative expression by way of copyright, but protect product reputation and goodwill. One of the other differentiating features of trade marks from patents and copyright is that if they are not enforced (leaving minor or inconsequential misuses out of account), they can lapse. This means that those who own valuable marks must be vigilant about whether others are misusing their marks in a consequential way, and enforcing the marks if they are.

A registered trade mark is an expression or symbol which identifies particular products or services as being those of a particular trader. The breach of a trade mark arises if another trader describes one of their own products or services in a way which might confuse it, in the eyes of a reasonable person, with those of the trader protected by the mark. If the trade mark is registered, this gives a separate right of action apart from the common law wrong of "passing off": the misusing of the mark becomes a cause of action of itself in the UK (including Scotland). US trade mark law is similar to that in the UK and many other countries, although in the US there is the additional concept of "trade mark dilution": that use of the mark by others might devalue it even if no product confusion results.

However vigilance can be taken too far. In the US there is a National Pork Board, an organisation representing those producing and trading in pork meat. The Board has a registered trade mark in the expression "The Other White Meat", which is widely used in the Board's advertising (presumably this is an attempt to make pork appeal to turkey-eaters).

ThinkGeek are an internet trading organisation selling weird products on the internet that most people wouldn't buy to save their lives, but that some people apparently like (I must confess that the Monty Python Killer Rabbit slippers look quite appealing). It is tempting to think that the whole site is a spoof but that is apparently not the case. However they do from time to time do spoofs, and on April 1st this year they advertised their unicorn meat product, under the buy-line "Pâté is passé. Unicorn - the new white meat". Apparently someone at the National Pork Board, zealously protecting their trade mark as required by law, thought that unicorns really existed, and that the use of the expression "the new white meat" might cause a reasonable consumer to confuse the product with pork, notwithstanding the sales information which included:

"Excellent source of sparkles!

"Unicorns, as we all know, frolic all over the world, pooping rainbows and marshmallows wherever they go. What you don't know is that when unicorns reach the end of their lifespan, they are drawn to County Meath, Ireland. The Sisters at Radiant Farms have dedicated their lives to nursing these elegant creatures through their final days. Taking a cue from the Kobe beef industry, they massage each unicorn's coat with Guinness daily and fatten them on a diet comprised entirely of candy corn."

The Board went as far as issuing a "cease and desist" letter via their lawyers. This must be one of the epic legal blunders of modern times.

Suffice to say, the spoof "product" remains advertised by ThinkGeek.

The 55% proposal

2010-05-14T16:14:00.005+01:00

In my post here I commented adversely on the Conservative/Liberal Democrat coalition proposal, in my words, "to require any vote of no confidence to have a 55% majority against the government" in order to come into effect. This comment related to my reading of the provision in the coalition document which states, in relation to its legislation for a fixed term Parliament that "This legislation will also provide for dissolution if 55% or more of the House votes in favour."

The purpose of this proposal is not, it now appears, what I supposed. The convention requiring a government to resign in the event of a vote of no confidence being passed by a bare majority is, apparently, to remain. The 55% figure is the threshold that would require a new election before the conclusion of the proposed 5 year fixed term. What is intended to happen in the event of a vote of no confidence being passed by more than 50% of the those voting but not being followed by a 55% vote in favour of a dissolution, is that the parties which passed the motion of no confidence should get together and agree a new coalition to form a government which is able to command the confidence of the House.

In this respect, it mirrors the equivalent provision applying to the Scottish Parliament which requires a 66% vote to trigger an early election rather than the resignation of Alex Salmond's government, which would only require a 50% vote.

Put this way it does not comprise the act of constitutional violence that I supposed it did. The downside however is that a no confidence vote not leading to a dissolution would, without proportional representation (which gives rise to a more even spread of party representation than first-past-the-post or alternative vote), require a new coalition government with probably only a small majority. or maybe a minority government with no majority at all, to limp on to the conclusion of the original government's 5 year term, even though it would be likely to have difficulty completing its legislative programme. One could envisage a succession of no confidence votes resulting in increasingly ill-tempered attempts to form new groupings capable of forming a government. The thinking presumably is however that, were a government to be paralysed in this way, there would be sufficient cross-party consensus on the need for a new election as to enable the 55% vote for a dissolution to be passed.

Without proportional representation, it might be easier to require that an early dissolution may only occur following the passing of a vote of no confidence against the government in office, and in addition to provide (in order to prevent the government triggering its own downfall so as to provoke a new election at a time of its own choosing) that only the leader of the opposition may put down such a motion of no confidence.

A coalition with potential

2010-05-13T16:10:00.009+01:00

I am surprised that the Conservatives managed to agree a coalition with the Liberal Democrats, but it is an interesting development, and in its form is one that shows considerable political generosity by the Conservatives towards the Liberal Democrats.

The Conservatives may benefit from this indirectly, beyond just being able to take power for the moment, by making the party more used to occupying the centre ground and by neutralising, for a while, the more swivel-eyed at the far right of the party. As a person in the centre of the party leaning towards, but not yet at one with, the one-nation Tories, David Cameron's talk of this being an opportunity as well as a challenge is probably something he actually feels as well as being a good sound bite. A dose of realism might well be good for the Tories, and in due course become a habit.

The Labour party's attack strategy is already becoming clear, and is a retreat to type: that this government is a government of cuts. If the coalition play their cards right, they may well be able to defeat this one. Gordon Brown was at his most unpopular and most derided when he was pushing his "Tories' 10% cuts" line, when everyone knew that a Labour government would have to do the same and cuts were inevitable. The coalition response needs to be in kind, namely that it is the same old dishonesty. If they play their cards correctly (and they may not), Cameron may be right that the coalition can bring a good portion of the electorate with them on cuts. Their stock response to a Labour attack of this kind should not be a quibble about numbers (nor even the ineffective Steve Hilton nicey-nicey big society stuff), but should work at the level of sentiment with one word: dishonest.

All this of course depends on the coalition surviving more than 12 months. It might or might not. But this is certainly a bold move by David Cameron. It seems that he lacks neither political instinct nor the decisiveness to lead the way and follow his instinct.

The coalition document

Two things of interest were in the coalition document. First, the proposal to require any vote of no confidence to have a 55% majority against the government looks like the same-old same-old political cynicism and seems very ill-advised. Its purpose is presumably to allow the government to continue even with a Liberal Democrat defection, as a minority government, but it simply won't work, and I am amazed the Conservatives had the balls to suggest it and the Liberal Democrats the lack of wisdom to agree it. To be effective it would require any Finance Act and Appropriation Act to be capable of being passed with a 45% vote, which would be outrageous. Update: it transpires that this is a misreading of the intentions of the coalition document: see this for further explanation.

Secondly, also of interest was the agreement, presumably at Liberal Democrats' insistence, that the West Lothian question should be put to a commission rather than implementing Ken Clarke's Democracy Taskforce proposal for an English Grand Committee.

Putting things to commissions is of course the standard way of kicking things to the long grass. In the 1970s we had the Kilbrandon Commission on the Constitution of the United Kingdom, which enumerated the arguments against an English Parliament and/or restricted voting at Westminster and/or regional bodies with legislative powers within England (the majority report recommended instead pseudo-devolution within England along the lines of the hopeless John Prescott proposals). As Ken Clarke is the new Justice Secretary and will therefore presumably be in charge of this project, it will be for him to move it along should he feel the urge to do so, and maybe his appointment to the office of Justice Secretary is an indication that he proposes to do so.

What we need though is a commission which looks for solutions and not for problems. In particular it needs to eschew the straw-man approach of those who advocate the "do-nothing" option, which I touch on here. I do not think "do-nothing" is going to work for a great deal longer.

Even better would be a commission which actually listens to what people in England would like, which is surely going to have to happen at some stage, or would that be too much like open government for the taste of this coalition? Probably, it would: the coalition is a bold step in government, but it will probably not turn out to be the start of a new kind of politics as claimed for it. However, let's keep hoping.

How much time is there

2010-05-09T21:01:00.004+01:00

So it appears that the Conservative/Liberal Democrat talks have not so far yielded fruit. We were told this afternoon, after the days' talks had finished, what they have been discussing, but not whether the gap is unbridgeable.

William Hague said "We are agreed that a central part of any agreement that we make will be economic stability and the reduction of the budget deficit" apparently in an attempt to calm the markets, but it remains to be seen whether they will remain calmed once the main markets reopen tomorrow.

From that point of view, I am not convinced that there is a lot of time remaining. My view on Friday, which is here, was that the most likely outcome was a Liberal Democrat undertaking for the time being to vote with the Conservatives or abstain at the Queen's Speech and on budget/taxation matters, and I am a little surprised that the Liberal Democrats have not by now at least given some indication in that direction. If we do end up with another election in a few weeks' time, which seems the likely outcome were the Conservatives and the Liberal Democrats to fail to agree something, I suspect the Liberal Democrats will be significantly punished by the voters, as well as showing themselves as a party which prefers to bleat from the sidelines rather than to be taken seriously and accept the burdens of office.

Gordon Brown doing the right thing

2010-05-07T22:49:00.001+01:00

There is a disgraceful headline in tomorrow morning's Sun, with its "Squatter holed up in No 10".

It seems highly unlikely that Gordon Brown does not realise that it is all over for him, for the reasons I have given here. The best that can happen for him is another election in a few weeks' time at which he might get a better result, but he is probably exhausted and would prefer to avoid that as much as the other party leaders.

I am not a great admirer of Gordon Brown's policies nor his moral compass. Nonetheless it seems highly improbable that he thinks he can forge a lasting coalition which will keep him in power. Instead, he knows that someone needs to run the country until a new government can be formed by others or another election held next month, and he is the one the constitution requires to do it. He gave, in my view, a dignified address earlier today. Contrary to the Sun's headline, it is much more likely that, rather than attempting to stay in office until someone prizes him out and throws him overboard, he is sadly watching his ship list and settle in the water while remaining at his post, knowing that that is what he has to do and there is no way out.

The aftermath

2010-05-07T14:19:00.009+01:00

What an intriguing election result; the most interesting result which it is possible to imagine. It looks as if the voters have, whether inadvertently or not, given a fine two fingers to the political class.

With the numbers now coming out, neither the Conservatives, nor a LibDem-Lab coalition, could actually achieve a majority government. This means that the only coalition game in town is a Conservative-LibDem coalition. My bet is that that won't happen, because the LibDem's price would be proportional representation in the Commons and the Conservatives are not prepared to offer it, and the LibDem's "triple-lock" would prevent a coalition on any other basis.

Gordon Brown could try to form a coalition of Labour, the Lib Dems, the DUP and/or the SNP and Plaid Cymru, but the bribes payable to the DUP/SNP/Plaid would probably be too high to be acceptable to voters in England, and even if not it would be so unstable as to be unworkable, particularly if the SNP and Plaid Cymru stick to their policy on not voting on England-only matters.

So my bet is a Conservative minority government with a LibDem undertaking for the time being to vote with them, or abstain, at the Queen's Speech and on budget/taxation matters. If the Conservatives are willing to offer the LibDems an elected House of Lords under proportional representation, which they probably are, that may keep it in place into next year, but probably not much beyond that.

If the LibDems are not prepared to agree even that, then the emerging make-up of the House of Commons would prevent any workable government being formed and we can look forward to another election in four weeks' time and a Gordon Brown "caretaker" administration in the meantime. The LibDems almost certainly don't want to take that risk: so big pressure on Nick Clegg.

The SNP and the BBC

2010-05-01T16:53:00.009+01:00

On Wednesday the SNP lost their application to the Court of Session in Scotland for an interim interdict (what the law of Wales, England and Northern Ireland would call an interim injunction) precluding the showing by the BBC in Scotland of the final election debate on Thursday, in the absence of the leader of the SNP, Alex Salmond, being given the same right to appear as the Conservative, Liberal and Labour party leaders.

This was probably bound to fail, if in part because of jurisdictional and pragmatic reasons, and I am sure they knew this. They were really just making a point. The debates were in Manchester, and the Court of Session has no jurisdiction in respect of Manchester. The holding of the debate there would have been a matter for the High Court of England and Wales. An interdict precluding the showing of the debate from transmitting stations in Scotland would probably have been within jurisdiction, but fairly pointless given that it was also broadcast by Sky and was available over the internet.

One can understand the SNP's point. The Liberal Democrats have benefited greatly, and somewhat unexpectedly, from the three televised debates and there is every reason to believe that the SNP would pick up more votes in constituencies which are marginal for them had they been allowed to appear. There have been a number of newspaper articles about it, such as Magnus Linklater's "the BBC doesn't understand devolution" in the Times which in my view was lightly reasoned to the point of trivialising the issues. There have been similar articles in the Guardian of better quality. The purpose of this blog article is to invite consideration of the wider range of questions to which Mr Salmond's request for an appearance gives rise.

Contrary to what Magnus Linklater says, the BBC almost certainly do understand devolution, and spend considerably more time and trouble spelling out, in their news reports, the territorial extent of the political matters which they report than do most other organisations. They have become pretty rigorous in not conflating England on the one hand with Britain and the United Kingdom on the other (and vice versa), which is something the newspapers and the three main parties are less good at. In the case of the newspapers this is mainly from genuine ignorance, and in the case of the three main parties is from a desire to obfuscate. For the interested, compare the BBC's coverage of the three party manifestos, which did explain territorial extent, with the manifestos themselves (including that of Mr Linklater's wife's party, the Liberal Democrats) which largely did not.

Devolution and the television debates

The fact of the matter is that devolution has thrown up real dilemmas. The first televised debate covered matters which were largely devolved in Scotland, Wales and Northern Ireland, and during the debate the ITV presenter gamely made that point (frequently) and indicated that there would be separate leadership debates in those three countries on them, as indeed there were. However, discussion of devolved matters such as health, education and policing at the Scottish leader's debate which did take place subsequently would still have been irrelevant to this election, since Westminster and the UK Parliament do not govern those matters in Scotland. They will instead be for the Scottish elections which are to take place in 2011.

That did not stop the Scottish party leaders waffling on about those things in Scotland as if they were of relevance to the choice of their electors in the Westminster election. If the Scottish leaders had waffled on in their debate about their parties' policies for England on the NHS and education, that would have had more relevance, because pending a solution to the West Lothian Question Scottish MPs do exercise a decision making function on them, but for England and Wales only.

Most reasonable people would I think agree that it would have been absurd for Alex Salmond to have been present at the first televised debate which, as I have said, largely concerned policies affecting England or England and Wales only.

Should Alex Salmond have been allowed to participate in the second and third debates, which covered a number of matters not devolved, such as taxation, the deficit, defence, foreign affairs and immigration? The case for that is certainly stronger. But the fact of the matter is that these will be matters for the UK government, and the SNP are only fielding candidates in Scotland and therefore will be unable to form a government for the UK.

It must be acknowledged that in the event of a hung Parliament they may exercise some influence on these UK matters, but so will the DUP, the SDLP and Plaid Cymru, as will also the Greens and UKIP (should they obtain any seats) and Sinn Fein (in the unlikely event of them deciding to take up their seats). The remaining defining feature of the SNP is that they are in government in Scotland, albeit without a majority, but so are the DUP and Sinn Fein in Northern Ireland (who are in a coalition government which does have a majority) and Plaid Cymru in Wales (who are in a coalition government with Labour). Should the SNP be allowed to appear while in government, but not if they cease to be after the 2011 elections? If so, the proposition is that the elections for the Scottish Parliament will determine the right to appear in debates on elections for the Westminster Parliament, which has its own logical dilemmas; and this appearance would clearly have to be accompanied by an appearance also by the leaders of the DUP, Sinn Fein and Plaid Cymru (should they want it). The DUP, Sinn Fein and Plaid Cymru did not seem to appear on Mr Linklater's radar however.

There is simply no easy answer to this. The BBC's holding of separate debates for Scotland, Wales and Northern Ireland was a defensible one. Plainly however it will not satisfy some Scots, but it seems few things do.

In the thick of it

2010-04-28T18:41:00.004+01:00

Todays events in Rochdale speak for themselves.

Rather than what the Prime Minister said about a lifelong Labour supporter, after he had concluded his discussion with that supporter on returning to the supposed privacy of his chauffeur driven car, it was the Prime Minister's immediate desire to blame his assistants which most interested me: "They should never have put me with that woman, whose idea was that? It's XXX I think. It's just ridiculous".

This jives with the complaints about the Prime Minister's behaviour towards his employees and in the office, and indeed with the Damien McBride affair. Also of interest was the subsequent apology which just had to try to hold something back so it wasn't really a full-blooded apology, with the "I misunderstood what she said" as its preface.

Given that this was just an average election encounter with a voter with pretty everyday concerns, which the Prime Minister appeared to handle well, it is difficult to see why he felt so aggrieved by his assistants having caused him to meet the lady concerned. It is obvious that he can't handle ordinary public interaction. In other words, he may (or may not) be OK as a-behind-the-scenes Treasury technocrat-minister, but he should not be the leader of a government. Surely his fate is now sealed within the Labour party, even if the electorate don't give a majority to someone else.

This is a real life enactment of one of the cock-up scenes in "In the Thick of It": except that the producers of that series would have felt that while people might believe a junior Minister in the Department of Backwaters and Other Establishments might have gaffed like this, no one would have thought it credible if they were to portray the Prime Minister as having done so.

No wonder Peter Mandelson's strategy was to keep a distance between the Prime Minister and the public. This strategy was relaxed to try to get Labour above the Liberal Democrats in the polls, with appalling consequences for them. However, I still fancy them to finish above the Liberal Democrats in votes in the end (no one would think they would finish behind on seats, even with this gaffe).

The perils of political debate

2010-04-16T20:13:00.004+01:00

The BBC reports that a man from Gloucestershire has been jailed for breaching an ASBO after making too much noise as a result of getting too angry when watching programmes such as Question Time.

If he was in jail last night, as it appears he probably was, the judge may have done him a favour. He might have injured himself from apoplexy had he watched last night's pre-prepared and on-message "debating". This man needs a defence fund.

Simon says: fair comment

2010-04-03T17:28:00.007+01:00

The Court of Appeal gave judgment on the Simon Singh defamation appeal on Thursday, just before the Easter break, a judgment given by the strongest bench that the Court of Appeal could muster (leaving out of account the excellent Lord Justice Laws¹, who gave leave to appeal). The fact that such a strong bench sat on the appeal shows the importance which the court attached to the case, not surprisingly and rightly given the furore that the decision of Mr Justice Eady at first instance has caused. Eady J's decision was a ruling on a preliminary matter in defamation proceedings brought by the British Chiropractic Association against Dr Singh. The preliminary matter concerned the scope of the meaning of the defamatory words concerned and whether they comprised a statement of opinion to which the defence of fair comment could be pleaded or whether they comprised a statement of fact which would (if defamatory) require to be proved as true for Dr Singh to avoid a finding against him.

The Court of Appeal's judgment can be found here. It sets out the relevant parts of the Guardian article penned by Dr Singh as follows:

"You might think that modern chiropractors restrict themselves to treating back problems, but in fact they still possess some quite wacky ideas. The fundamentalists argue that they can cure anything. And even the more moderate chiropractors have ideas above their station. The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments.

"I can confidently label these treatments as bogus because I have co-authored a book about alternative medicine with the world's first professor of complementary medicine, Edzard Ernst. He learned chiropractic techniques himself and used them as a doctor. This is when he began to see the need for some critical evaluation. Among other projects, he examined the evidence from 70 trials exploring the benefits of chiropractic therapy in conditions unrelated to the back. He found no evidence to suggest that chiropractors could treat any such conditions"

The British Chiropractic Association sued Dr Singh for defamation over this. As a company limited by guarantee they were able to do so since limited companies have a notional reputation in law which is protected by the law of defamation. Dr Singh pleaded the defence of fair comment.

The defamatory words comprised Dr Singh's claim that the BCA "happily" promote "bogus" treatments. Mr Justice Eady held these words comprise an allegation of fact that the BCA promote false and ineffective treatments knowing them to be false and ineffective, something which would be very difficult for Dr Singh to prove, not least because it is most probably not true: the BCA are no doubt honest even if they may or may not be misguided. This ruling of Eady J was despite the second paragraph cited above from the Court of Appeal's judgment in which Dr Singh gave his reasons to support his statement, which it is not even clear that Eady took into account.

To see the relevance of that second paragraph, it is necessary to understand that in order for a defendant to succeed in the defence of fair comment, he or she must show that the defamatory words comprise a statement of opinion about a matter of public interest which is within the range of opinion that a reasonable and fair-minded person could hold, on the basis of stated facts which can be shown to be true, or sufficiently true to support the opinion stated. If the factual basis for the opinion is not stated, or the statement of opinion is so mixed in with statements of fact as to make it unclear to the ordinary reader that the defamatory words are mere opinion, then the defence fails and the defendant has to prove the truth of the statement(s) to avoid liability. For example, to say in the presence of others "I think X is a thief" without anything else is treated in law as a defamatory statement of fact that the person is a thief. To say "I think X is a thief because I saw him entering Mrs Jones's house by breaking a window, and leaving 5 minutes later with a bag marked 'Swag'" is a statement of opinion in relation to the characterisation of X as being a thief, for which a defence is available if it is true that the defamer saw the things which he said he saw and the comment was about a matter of public interest.

One instinctively thinks the statement complained of by the BCA isn't the kind of thing the law of defamation was intended to deal with. It is a matter of epidemiology and of public health interest which it is to be hoped could be openly discussed in an open society, albeit in this case expressed in colourful language. The Court of Appeal so held and determined that on matters of scientific or medical controversy a statement of opinion can remain a matter of opinion even if not very obviously accompanied by statements of claimed fact to support them. To that extent, the court could be said to have extended the range of things that will be considered to be statements of opinion rather than fact for the purposes of the fair comment defence.

I have three supplementary points on this case. The first (which lawyers will be interested in) is why Dr Singh did not also plead the Reynolds defence of responsible journalism. This defence relies on a different branch of the law of defamation, namely qualified privilege: it may be that it was not pleaded because before the article was published the Guardian did not seek the BCA's views, therefore not meeting Lord Nichol's indicative tests set out in the Reynolds case. However, the Court of Appeal's judgment seems to be part of a slow merger of the defences of fair comment and qualified privilege, which is likely to occur over the coming decades.

Secondly, this case will probably go down as a textbook example of when not to sue. The BCA can only come out of this with nominal damages even if they do win, which now looks difficult for them. They will portray themselves as bullies attempting to stifle dissent by penalising Dr Singh with costs, particularly as, as the Court of Appeal observed "By proceeding against Dr Singh, and not the Guardian, and by rejecting the offer made by the Guardian to publish an appropriate article refuting Dr Singh's contentions, or putting them in a proper prospective, the unhappy impression has been created that this is an endeavour by the BCA to silence one of its critics". Furthermore, this litigation will serve to bring Dr Singh's allegations about chiropractic's effectiveness in the areas he mentioned to public attention. People will think "If they had to try to nip this in the bud, there must be something in it". In short, the decision of the BCA to bring this case is one of lunacy when viewed in the wider picture. The BCA say they are considering applying for leave to appeal to the Supreme Court. Now he has got a national platform, Dr Singh may be thinking along Dirty Harry lines: "Go on punks, make my day".

Thirdly, one must question the way in which Mr Justice Eady held (or failed to hold) the balance between the right of the individual to reputation and privacy on the one hand (article 8 of the European Convention on Human Rights) and the right to freedom of expression on the other (article 10 of the ECHR) in this case. As I commented here, he has been the subject of some mainly unjustified attacks in the press, but on this occasion he simply went too far with an astonishingly illiberal decision at first instance.

_________________________

¹ By a twist of fate, it was Laws LJ who in an earlier incarnation, as junior Treasury Counsel, acted for the government in trying to suppress publication of Peter Wright's Spycatcher book in Australia. I suspect he knew he was going to lose in a set of very difficult and trying circumstances, but no doubt it was a rounding-out experience.

Constitutional Futures

2010-02-28T22:16:00.005Z

I contributed a guest article about Constitutional Futures to the http://englishparliament.net website here. It does not contain much that I have not previously commented on in this blog, but it contains a more complete refutation of the views of Professor Victor Bogdanor for those who would like to read it.

Watching the International Intellectual Property Alliance and the US Trade Representative

2010-02-27T13:32:00.005Z

The International Intellectual Property Alliance is a trade organisation or lobby group of seven trade associations which represent US companies involved in businesses having a high intellectual property (principally copyright) content, such as US film and recorded music producers and sellers, computer software sellers and US companies involved in books and other similar publications.

Watch lists

Despite its name the IIPA is not "international", but a United States lobby group promoting the interests of the US corporations involved in the things I have mentioned. It is an influential one however: it makes recommendations to the Office of the US Trade Representative about how that Office should exercise its functions under section 182 of the Trade Act 1974 (19 USC §2242). Under that section, the Office maintains a "watch list" of "those foreign countries that (A) deny adequate and effective protection of intellectual property rights, or (B) deny fair and equitable market access to United States persons who rely on intellectual property protection".

Under the section there is a sub-category of countries called "priority foreign countries", that have "the most onerous or egregious acts, policies, or practices" denying adequate protection or access as mentioned. In addition to such egregiousness, to go on the priority list rather than the ordinary watch list it is necessary that these acts, policies, or practices "have the greatest adverse impact (actual or potential) on the relevant United States products", and that the countries concerned "are not (i) entering into good faith negotiations, or (ii) making significant progress in bilateral or multilateral negotiations, to provide adequate and effective protection of intellectual property rights".

Being on the watch list does not of itself automatically give rise to further sanctions (say in access to US markets) but it is used by the US government in international trade discussions to obtain leverage. It might perhaps unkindly be described as a "bullying list": those countries which the US government can, with supposed legitimacy, beat around a bit. However, a surprising group of countries are on this list, including Canada, ostensibly for failing to take enough action to curb internet piracy.

Actually I don't have a problem with issuing black marks for internet piracy (although the Canadian government consider that its inclusion is based on emotion and US lobbying rather than objective fact). However, the IIPA and the Office of the US Trade Representative have been expanding their activities to try to dissuade foreign governments from encouraging the use of perfectly legitimate and legal "open source" software in preference to software developed by "closed source" methods. The main US producer of closed source software is the Microsoft Corporation (although of course there are many other smaller or more specialist producers as well), and readers reading this probably have a Microsoft operating system on their computers.

In short, the IIPA and the Trade Representative are becoming lobby organisations to press other countries to buy US software products rather than to protect intellectual property as such.

Open source software

Open source software is computer software the source code for which is made freely available, subject often to restrictions such that for example any modifications of the code to extend its usefulness must also made available by the user/modifier: such restrictions form in effect a contract or licence under which "you can use my code for free provided you pass back any improvements you make to it for free". The "source code" comprises the computer code which is to be executed by the software program in question, in pre-compiled human-readable form.

Open source software is becoming increasingly important particularly in business uses: it is widely used in banks for example. It can comprise whole operating systems, such as Linux or BSD systems, or it can comprise particular programs such as the Firefox web browser (either running on an open source operating system, or on a closed source operating system such as Windows).

To see the way things are moving in terms of US-led lobbying on the issue, it is instructive to see the IIPA's latest proposal for the addition of Indonesia to the priority watch list, that is the list of those acting most egregiously contrary to US intellectual property interests. It proposes such inclusion in part because "in March 2009, the Ministry of Administrative Reform (MenPAN) issued Circular Letter No. 1 of 2009 to all central and provincial government offices including State-owned enterprises, endorsing the use and adoption of open source software within government organizations. While the government issued this circular in part with the stated goal to 'reduc[e] software copyright violation[s],' in fact, by denying technology choice, the measure will create additional trade barriers and deny fair and equitable market access to software companies." The IIPA want the Indonesian government to "rescind March 2009 MenPAN circular letter endorsing the use and adoption of open source software which threatens to create additional trade barriers and deny fair and equitable market access to software companies".

What the circular in question from the Indonesian government did was to recommend the use of open source software to government institutions but did not deny choice by mandating it, and it did so partly to reduce the government's software costs. It is difficult to believe that this could be regarded as an anti-competitive act at all. It must be reasonable, in deciding whether to adopt a (free) open source software product rather than a closed source (payment required) product produced by a US company, to take into account the fact that one is free and one is not. If the IIPA is of the view that that is not the case then it must surely be taking the task of protecting its members' interests too far. If however what the IIPA means is that the policy circular does not contain an adequate metric for assessing cost against, say, usability to enable a proper and fair comparison to be made in particular cases, then it is surely arguing about a minor point of implementation and choices of words, rather than something meeting the level of egregiousness necessary to be placed on the priority list by the Office of the US Trade Representative.

As it happens open source software has a number of advantages other than cost, such as the ability to inspect and audit the source code to make sure it does not contain any security weaknesses, or indeed any deliberately inserted code which "rings home to Mama". That can be important for security-sensitive uses. It should also be noted that a number of large US corporations now deal in open source software, mainly obtaining their revenue from it in providing consultancy, implementation and support services for it or in providing "bundled" distributions of such software. Such corporations include IBM. Google uses the open source Linux operating system as the underlying layer for its internet services, and obtains its revenue principally from advertising.

Possibly the IIPA and the Office of the US Trade Representative want to get their bullying in while they still can. The rise of China, India, Brazil and similar countries will make the US view on such matters less relevant as time passes. The problem with making enemies on the way up, though, is that people tend to kick you harder when you are on the way down.

Power 2010: the sequel

2010-02-24T18:59:00.020Z

The internet voting stage of the Power 2010 proposals has now finished. I wrote here about the deliberative stage which preceded it.

There has been quite a change-around in the ordering of the proposals. The idea now is that voters will ask candidates in their constituencies to commit themselves to at least three of the top five¹, these top five being proportional representation, the scrapping of ID cards and the "rolling back of the database state", an elected House of Lords, English votes on English laws, and the drawing up of a written constitution.

I am disappointed that the more achievable direct democracy proposals, namely the holding of national consultation exercises on matters of importance before policy decisions are taken by means of referenda and the like, more free votes and giving MPs more control of the Parliamentary timetable haven't featured, but glad that the pointless "allowing voters to vote none of the above on ballot papers", formerly no. 2, has now sunk into its merited irrelevance.

Apart from databases and English votes (which I deal with separately below), we are therefore left with the constitutional hobbyists' usual causes, namely proportional representation, an elected House of Lords and having a written constitution. As compared with the outcome of the deliberative phase, these have the relative merit of consistency, in that if we are going to have an elected House of Lords we are probably going to need a written constitution also, because it opens up a whole host of issues about the role of the House of Commons, and (if the second chamber is elected) what function, if any, an elected second chamber is to have in relation to the devolved legislatures or whether, by only shadowing the House of Commons, it should in the main be concerned in its legislative capacity with England-only or England-and-Wales-only issues. However, an elected House of Lords impacts on proportional representation, because if the House of Lords is elected by proportional representation it would seem to me to make sense for the House of Commons to be elected by first-past-the-post or by single transferable vote (alternative voting), which would thereby retain the House of Commons' position as having a constituency based membership.

What we can reasonably deduce is that none of these three will be implemented in the foreseeable future.

Of the five, the matter which probably most stirs my juices is the winding back of the database state. Having said that, such things as the outrage of the DNA database seem to me to be of a different category from the other four in the Power 2010 list: issues arising in connection with the database state are concerned more with human rights than with the re-invigoration of politics and constitutional structures, so I am not certain that this is really suitable as a Power 2010 pledge. (I say "outrage" because, outside Scotland, to get on the DNA database a mere arrest is enough - you don't even have to be charged let alone convicted of anything, which has brought about an abuse of the power of arrest by the police. To get off the DNA database after an arrest you have to be a celebrity or someone in the public eye, such as Damian Green MP: ordinary people who are not likely to have their letters printed by the Times are just potential criminals and suitable as DNA-fodder in Jack Straw's thinking.)

What to make of English votes on English laws? It must have come as something of a shock (or at least a disappointment) to the Power 2010 organisers because as I say constitutional enthusiasts generally are more concerned with the three subjects I have already mentioned. It is a reminder however that any new constitutional settlement involving an elected House of Lords or a written constitution is going to have to grapple with the problem of England. The current situation is untenable in the long term, particularly as more things will be devolved to the Scottish, Welsh and Northern Irish governments and institutions in the course of time. To consider constitutional structures without considering the position of England, which I suspect the Power 2010 organisers hoped they could do, is ridiculous. To that extent, including English votes within the Power 2010 pledge may well serve a purpose.

However, outright preclusion of members for constituencies outside England or England and Wales voting on a Bill having an England or England and Wales only extent at all stages of a Bill is not really a workable solution, but I think a form of English votes can be made to work which I will not repeat again here. Those interested can look at previous articles in this blog on the subject, such as my earlier article on the Power 2010 proposals to which I have referred and also at this.

____________________________________

¹ The earlier Power 2010 intention was to ask candidates to sign up to all five.

Power 2010: the story so far

2010-01-15T10:27:00.004Z

Below is the text of a guest opinion piece I wrote and which appears at http://englishparliament.net. A sort of "view from the regions".
______________

Power 2010 has recently published the results of its "deliberative phase" of proposals to re-invigorate British politics. This followed its earlier request for proposals from the public at large, 60 of which were then put to this "deliberative" stage. The deliberation was carried out by a representative sample of 200 UK citizens on 9 and 10 January. The top 29 topics following the scoring which accumulated on deliberation are now the subject of a period of internet voting, after which the five most popular will become the policies for constitutional change which it will ask candidates at the 2010 election to adopt as policy.

In this guest opinion piece I will approach it in the spirit in which it is intended, and not dwell on the fact that it is the party manifestos which set out what it is that the candidates will in fact pledge themselves to. Power 2010 will find it difficult to have any practical effect, but I suppose they are to be applauded on the initiative.

Overview

The thing which most struck me was the relatively unradical nature of most of the proposals, particularly those near the top of the list. This is not going to cause any re-enactment of the Chartist riots of the 1830s and 1840s; nor even the repeal of any Corn Laws. The no. 1 ranking following deliberation is given to strengthening select committees in the House of Commons, which doesn't sound to be the most appealing call to the manning of the barricades. The no. 2 ranking was "allowing voters to vote none of the above on ballot papers" which is particularly pointless: such markings on ballot papers are at present labeled and counted as "spoilt votes". (The fact that this ineffective idea did appear at no. 2 gives some hope that this exercise is not stage managed by constitutional enthusiasts.)

As to which my second thought is that the deliberative stage is only as good as the neutrality of the "guidance" given to the 200 citizens during their deliberations. Whilst this clip from "Yes, Minister" is intended mainly for humour, as with much of that series it is making a serious point. Polling companies stake their reputations on devising neutral non-leading questions which do not point to a particular outcome and therefore bias the result.

The proposals

Everyone will have their own views on what might make it to the final cut of 5 proposals. In looking down the list of substantive rather than trivial proposals, I have ignored those concerned with matters of privacy and databases and related human rights issues (and a referendum on substituting the euro for the pound which came in at an astonishing no. 12), as though important in their own right they seem to me to be not sufficiently connected with the re-invigoration of politics. The highest ranked proposal which I find of interest is one to "increase the number of issues decided by free votes" (no. 3), followed by direct democracy, that is to say more national consultation exercises on matters of importance before policy decisions are taken by means of referenda and the like, which forms three linked proposals at no. 4 in the deliberative results. After that, of the proposals in the results which I would regard as substantive and interesting without necessarily agreeing with them are MP recall votes (no. 9); doing away with some of the Freedom of Information Act exemptions (no. 10); giving MPs more control of the Parliamentary timetable (no. 13), linked in spirit at least to there being more free votes and which is much more far reaching than might be thought, because the control of Parliamentary time by the whips office is where much of the power lies; "allowing only English MPs to vote on matters affecting only England and only English and Welsh MPs to vote on matters affecting only England and Wales" (no. 16); only having ministers in the government from the House of Commons (no. 17); more devolution to local government (no. 18); and proportional representation (no. 23).

I have discounted from my list of interesting substantive proposals things like fixed-term Parliaments (no. 21) on the ground that it is not sufficiently ground-breaking, and having a written constitution (no. 26) on the ground that it is so ground-breaking that it asks more questions than it answers: in fact, producing a written constitution would require all 60 questions to be answered, and many others besides. I do not find a written constitution of itself particularly appealing - it is what would be in it which forms the grit.

Supporters of an English Parliament will be disappointed: following deliberation, holding a referendum on an English Parliament went to no. 45 and misses the cut. A referendum on an English Parliament ended up coming below even "Holding separate referendums (sic) on membership of the Union in England Scotland and Wales" (no. 43), which seems an odd selection of priorities by the participants and it does make one wonder how reliably the exercise was carried out. The ranking also jars both with "Holding a referendum on the strongest form of devolution amongst the nations" which is higher again at no. 38, and which would of its nature require the referendum to cover whether there should be an English Parliament or regional government in England (although curiously the explanatory information indicates that "the nations" did not include England).

On the last point, I must come clean on this: readers of my own blog will know that I am not a great supporter of an English Parliament. Instead I would prefer to see real powers given to a parliament and government for three English regions, the North, the Midlands and the South, forming (with those already existing for Scotland, Wales and Northern Ireland) a federal solution for the UK. I think that could give a new vibrancy to the whole of England (as opposed to the pathetic John Prescott proposals of earlier in the decade which were never intended to devolve anything meaningful and were intended to divide the north of England rather than represent it).

However, regional federalism came out even lower than an English Parliament, at no. 46, and in truth I have always recognised it to be a dead duck politically. Westminster career politicians are not going to vote to divest themselves of most of their current powers and leave themselves only with foreign affairs, defence, immigration, macro-economics and the benefits system as toys to play with, and reclaiming things from Scotland such as health provision to give politicians more to do at the UK level is likely to prove politically unachievable (there is no National Health Service at the institutional UK level any more and probably there cannot now be again). But by the same token, Westminster career politicians are not going to sign up to most of the other Power 2010 proposals either. And I recognise that an English Parliament is, in the decades to come, a more likely outcome than genuine regional devolution because it allows the more straightforward and less challenging metamorphosis of UK power structures into England power structures on matters which will have already become devolved in the remainder of the UK. The England rump ends up defining itself.

For those interested in voting systems, single transferable votes (sometimes also called alternative voting) ended up at no. 34 following deliberation, below proportional representation and missing the cut. Single transferable voting is, however, the only change to the voting system which is ever going to be implemented in practice, were first-past-the-post to be abandoned.

Another interesting one was "Selecting the Upper Chamber by lot from the population" (no. 49). This has a certain whimsical purity about it - a return to the ethos of the old House of Lords but with membership of the House of Lords determined by pure chance at birth (or perhaps on attaining majority) rather than by the chance of heredity at birth. It has a cousin "Selecting some councillors by lot from the local population" (no. 48) for the local level.

The problems

I have commented on the neutrality point, but one other significant problem with the exercise undertaken by Power 2010 is the fact that the issues dealt with cannot in truth be treated as discrete decomposed items in the way that appears in the table of post-deliberation results.

An example is the House of Lords. Having an elected House of Lords ended up ranked no. 28, just making the cut. However, whether the House of Lords is elected has an obvious effect on its political legitimacy and therefore on its power to override the House of Commons. If wholly elected, then the case for it to be able permanently to block rather than just delay a Bill also becomes considerably stronger. Likewise if the House of Lords is elected by proportional representation, the case for keeping first-past-the-post for the House of Commons becomes stronger, and there could be little justification for preventing members of the House of Lords from becoming ministers in the government. It also raises the question whether this new elected chamber should act as second chamber, or at least as an advisory chamber, for the legislatures for Scotland, Northern Ireland and (after a successful referendum under Part 4 of the Government of Wales Act 2006) Wales, given that a great deal of its time would otherwise be devoted to England-only legislation.

In fact, an elected House of Lords would require a wholesale review of the UK constitution going well beyond most of the other relatively modest proposals of the Power 2010 document. It might well require preparation of the written constitution to which I referred earlier.

By way of another example, one of the main arguments against English/Welsh votes on English/Welsh laws is the argument that the UK government must be able to get its business through, and to do that it may need to rely on (and whip the votes of) MPs for Scottish constituencies even though a matter may not by virtue of devolution affect Scotland. This is indeed what happened on student top-up fees in England and on some aspects of foundation hospitals. However, if there are to be more free votes as proposed, where each MP votes for what he or she thinks is the best for his or her constituents rather than in accordance with the party line, the argument for limiting voting rights to those whose constituencies are actually affected by the matter under consideration becomes obviously stronger.

Another problem is the inability of the process undertaken by Power 2010 to offer nuance on a number of the issues. On English/Welsh votes on English/Welsh laws, even though some protection for those in England against a recurrence of the student top-up fees affair is likely to be introduced at some point (and more quickly if the Tories win the next election), the formula at no. 16 which I have cited above does not in fact represent anything ever likely to be implemented, nor is the formula in its stark terms particularly realistic. Instead, the Tories propose an English Grand Committee at committee stage (a little different from the Scottish Grand Committee which used to sit on Scottish legislation, and in theory still can), together with restricted voting at report stage. Under the Tory proposal no Bill affecting England only or England and Wales only could pass either second or third reading without a vote in its favour by all members of Westminster Parliament. My own proposal in the absence of regional federal devolution or an English Parliament has been more limited: this is that, by analogy with the power of delay for a year available to the House of Lords, if a Bill or separate Part of a Bill were not to have a majority in its favour at third reading for the portion of the UK to which it applies as well as for the whole house, it could not be forced through against the wishes of the majority of those members representing that portion until the following session of Parliament. At all stages of a Bill all members would still exercise a vote; but people in England/Wales would get some protection at third reading against laws and decisions, applying to them only, being forced on them which are not approved of by their elected representatives. Possibly after a period of experience, this power to delay could be transformed into a power to block. (I also realise that those who want an English Parliament regard this as inadequate.)

Where we are

Power 2010 may counter criticisms of the kind I have mentioned on the grounds that their approach is the best which is achievable with "open authorship", and on that they are probably right. But the value of the outcomes can be judged from the coherency of the exercise undertaken.

I add to this that some good ideas have undoubtedly come from the process. The "direct democracy" proposals at no. 4 were right to come out near the top, and might if implemented do much to help counter public distrust in politics and politicians. But overall, the exercise and its outcomes seem to me a little like a Jackson Pollock art work. Throw some paint at it, stand back and hope that something has been achieved which hangs together as a complete work.

Warming to the argument, Part 2

2009-12-20T12:08:00.016Z

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.

______________________________

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

Warming to the argument

2009-12-17T19:22:00.016Z

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.

__________________________________________

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.

Keeping confidences

2009-12-11T17:32:00.007Z

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).

Digital Economy Bill

2009-12-05T16:20:00.007Z

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.

The long game

2009-12-01T19:39:00.006Z

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.

More constitutional introspection

2009-11-02T18:36:00.012Z

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

2009-11-02T12:32:00.001Z

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.

Trafigura: The Sequel

2009-10-17T18:19:00.010+01:00

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.

Trafigura: Oil and law don't mix

2009-10-15T11:48:00.011+01:00

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.

A posthumous apology

2009-09-11T22:04:00.004+01:00

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.

Laying the ghost

2009-09-10T20:48:00.005+01:00

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 clichés 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.

The Quality of Mercy

2009-08-28T19:41:00.005+01:00

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.

House of Lords Committee on the Barnett Formula

2009-07-18T00:41:00.010+01:00

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.

Parliamentary Standards Bill

2009-07-04T00:45:00.014+01:00

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.

The cycle of life

2009-06-26T18:45:00.006+01:00

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.

Calman, taxation and representation

2009-06-17T11:03:00.004+01:00

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.

Calman Report

2009-06-16T19:09:00.016+01:00

The Calman Commission reported yesterday. The report, although 268 pages long, is quite a good read, with a perceptive analysis of the difficulties of achieving stable devolution to individual nations within the UK such as Scotland, given the way in which the UK has taken shape since the Acts of Union of 1707 and the unequal sizes and economic resources of its constituent parts.

The Calman recommendations

The report will be a disappointment for those hoping for a step on the road to Scottish independence. Gordon Brown has described it as "bold and realistic". Realistic, perhaps; but bold, no. From the unionist perspective I would characterise it is a clever and well conceived sleight of hand.

The report proposes some additional devolution of powers in a few areas: some further road traffic responsibilities such as alcohol limits and traffic speeds are to go to Hollyrood, together with the control of air powered weapons. Some other rather esoteric matters are proposed to go back to Westminster, such as company liquidation and the regulation of health professionals. But the headline change proposed is 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. In addition, it is proposed that the Scottish government should be able to fix its own rates of stamp duty land tax on property transfers, together with its rates of airport passenger tax, aggregates levy and landfill tax.

As a corollary of this, it is proposed that the Scottish government is also to be able to borrow for capital items to be financed out of these new revenue powers.

Why do I describe this as a sleight of hand? I do so because the Scottish Parliament already has the power to vary the rate of income tax applying in Scotland up or down by up to 3%. This power has remained dormant and unused: no Scottish government has wanted to make active choices between cutting public expenditure and taxation on the one hand and increasing taxation and public expenditure on the other hand. Implementation of the Calman proposal would force the SNP in government to show its hand on whether it is a low tax or high tax government, or whether it is to "cop out" of separate national aspiration by following the rates which are set at Westminster for the remainder of the UK. In short, it forces the making of active choices, and it does so without the Scottish government being able to make up the "missing 10%" by imposing a rate of tax which impinges proportionately more heavily on higher rate payers than on lower rate payers. (Adopting Dennis Healey's famous epithet as Chancellor, it cannot adopt a policy of funding public expenditure by taxing higher earners "till the pips squeak".)

In consequence of the diversion of the top 10% of income tax (or whatever lesser or greater amount the Scottish parliament chooses to fix) directly to the Scottish government, the block grant allocation from UK tax sources will be reduced. Some reports by newspapers with mathematically challenged correspondents have reported that one consequence is that less money is to go from taxpayers south of the border northwards. This is most unlikely in the short term, because the Commission also recommend that the Barnett formula should be retained until an acceptable needs-based formula for block grant allocations for the UK as a whole is arrived at. By far the most likely outcome is that the block grant to the Scottish government from the Barnett formula will be reduced by exactly the net amount of the missing 10% of UK income tax raised in Scotland that would have gone to the UK exchequer in the first year in which the new scheme comes into operation. In terms of UK contribution to public expenditure in Scotland, at the outset there is therefore likely to be no change at all, and in theory at least the "Barnett squeeze" which was intended to bring funding to different parts of the UK more into line is likely to become even less effective than it already is.

One matter highlighted in the report, reflecting in a more accessible way the Scottish Government's own 2008 GERS report, is that Scotland has historically received marginally more in public funds from the UK exchequer than it has contributed to it by way of taxation, even hypothecating 90%¹ of North Sea oil and gas revenues to Scotland and 10%¹ to England. There was a period in the 1980s of both high oil prices and high North Sea production during which Scotland was a net contributor by virtue of its fossil fuel resources, but on average it has been in deficit. This analysis was ostensibly to show why transferring 90% of oil and gas revenues to the Scottish government (with a concomitant reduction in block grant) would not work in practice because of the volatility of oil prices, but no doubt the extensive treatment of this in the report is another nod to the unionist agenda by making it clear to people in Scotland what their choices are. The fiscal deficits are not so severe in terms of Scottish GDP that it would put me off independence if I were a Scot and keen on national self-determination; but in the event of independence significant work would be needed by the Scottish government to avoid difficult times when the oil does run out.

England

The report tip-toes around the issue of England. On the one hand, it says that the West Lothian Question is not for the Commission. One could question that, as part of its remit was to come up with devolution proposals which would "continue to secure the position of Scotland within the United Kingdom", and that could not be done without paying some regard to their effects on the remainder of the United Kingdom, including England. The more is devolved, the more are the matters affecting England on which the West Lothian Question will bite. Were the Commission to have proposed fiscal autonomy for Scotland for example, it is difficult to see how they could have remained oblivious to the effect of the West Lothian Question on taxation matters in securing the position of Scotland in the United Kingdom².

On the other hand, whilst those wanting an English Parliament will be just as disappointed by the report as those wanting Scottish independence, it does venture into the position of England in ways that Gordon Brown will be uncomfortable with, by suggesting that England is and has a political identity which is more than just a collection of regions:

"2.13 It is not for us to discuss where or how power might be decentralised or devolved in England – whether, as has been proposed in the past, to regional level, or by giving more power to local institutions. Nor is it for us to discuss how England’s laws should be made. But, however such ideas might be pursued, they will not affect the fact that England, though larger than Scotland, Wales or Northern Ireland, will remain a nation with a single political identity which it has maintained for at least as long as Scotland’s. It is of course possible to divide the UK into “standard regions” for administrative and statistical purposes. Scotland is one of those regions, as are Wales and Northern Ireland. But the standard regions in England do not have the same sort of political identity as Scotland. This fundamental aspect of the Union will always remain, and must not be ignored in its territorial constitution."

Gordon Brown will also be disappointed by the suggestion that his project for a written constitution, put on the back burner since he first proposed it in 2007, should have an English dimension:

"2.14 Because our constitutional arrangements are unique, it does not make sense to take ideas or institutions from other countries and apply them directly here. ... Devolution to Scotland (and Wales and Northern Ireland) created political institutions that exercise many of the powers of central Government for a significant proportion of the UK. That inevitably has meant that the governance of the rest of the UK cannot continue unchanged. [my emphasis]

2.15 It is not sufficient for Scots (or indeed Welsh or Northern Ireland citizens) to dismiss this as simply a problem for the English: the internal arrangements of the Union are a matter for all of us. The UK now has a territorial constitution, and it needs, in our view, to be more fully and clearly set out."

This is quite surprising, given the strong Labour influence in the make up of the Commission, and is concerning for the government in coming so soon after similar comments in the recent report of the Select Committee on the Ministry of Justice entitled "Devolution - a decade on" (comments here). The current government, and Gordon Brown in particular, will no doubt try to bury this as quickly as it and he are able.

However, given that it is likely that the Conservative party manifesto for the next general election will propose some form of Grand Committee for England-only or England-and-Wales-only legislation, the question does arise whether the Conservatives will put more emphasis on the West Lothian Question in the lead up to the election should polling show a closer contest with Labour than at present, so that every vote counts. (Not that I think an English Grand Committee is a particularly workable answer - my proposal concerning Third Reading here seems to me to be a much better solution.)

______________________________________

¹ Or is it 83% and 17% respectively, the figures used for the geographical allocation between Scotland and England in the Scottish government's 2008 GERS report, based on what would be international borders in the event of independence? It is not clear in the report how the hypothecation has been made.

² In fact, the Calman proposal for MSPs in the Scottish Parliament to set income tax, stamp duty land tax, airport passenger tax, aggregates levy and landfill tax for Scotland still raises, in a more attenuated form, issues about the relationship between taxation and representation when determining these taxes for the remainder of the UK, which I will cover in a later blog article.

Update: Article on taxation and representation here.

Voting reform

2009-06-10T11:57:00.004+01:00

There is apparently to be a statement today by Gordon Brown about constitutional reform, which will include proposals for exploring voting reform by the so-called "National Council for Democratic Renewal", which is not a national council at all but just a committee of Ministers of the government.

Some on the right have regarded this as a last act of desperation by the Prime Minister in order to keep Labour in power. There is probably some force in this given that his initiative comes on the heels of a historically poor performance by Labour in the county and European elections last week. If that is not Gordon Brown's real purpose then it gives us another example of his inability to read how his actions appear to the world outside, because most will perceive his motives to be suspect.

The Liberals may feel that this is their big opportunity to pursue proportional representation. Proportional representation is good for any small party which can place itself as a party of the centre, because it would result in a string of coalition governments, and a party of the centre forms the obvious coalition partner for two larger parties with more opposed political leanings such as the Conservatives or Labour. The Liberals could expect to be in power as junior partners for a number of years - that is, until new political groupings were to emerge as politics splinters, as in due course it would and does under proportional representation.

However, rather than proportional representation, the only form of voting reform which it appears that the Prime Minister could get through his own cabinet is some kind of single transferable voting system, sometimes also called alternative voting because this system allows a voter to choose an alternative candidate should her main choice (first preference) be knocked out because of a lack of first preference votes. Full-on single transferable voting enables subsequent transfers to third and fourth preferences and so on should earlier preferences be knocked out, but this is something of a purists' refinement which has little practical impact. However it is implemented, it is not proportional representation; but some right wing commentators still see it as a devious plot by the Prime Minister to keep the Conservatives permanently out of power.

I think this is a misreading, or at least an exaggeration. Boris Johnson was elected Mayor of London under this system in 2008 in an area (Greater London) which historically is by no means friendly to the Conservatives, and he only received marginally less second preference votes than did Ken Livingstone, and at a time which was uninfluenced by the MPs' expenses scandal. Such limited polling evidence as there is suggests that just at present the Conservatives would gain more second preference votes from Liberal supporters than would Labour. This is not surprising given Labour and Gordon Brown's current unpopularity, but unfortunately there is little reliable evidence on the trends over the long term. One suspects Liberal voters may on average be slightly more attuned to Labour, but I also suspect that second preference support turns more to whoever is in opposition at the time. What it is likely to cause is a greater difficulty for a government in winning a second term, as it amplifies movements of political opinion amongst floating voters.

There is one further thing to be said about alternative voting: it has great dangers for the Liberals. It encourages the smaller specialist parties such as the Greens or UKIP as first preference one-issue "pressure groups", leaving voters secure in the knowledge that their vote will not be wasted because they can specify Labour or the Conservatives as their second preference. In the round, this would tend to reduce the vote for the Liberals rather than increase it.

The big losers of voting reform could well be the Liberals, and the gainers the one-issue pressure groups who would be given a platform. Be careful what you wish for.

What to do on Thursday

2009-06-02T12:03:00.003+01:00

I usually have a pretty clear view of which way I am going to vote some time in advance of a European or general election. (I have to say, no doubt to my shame, that I rarely bother with local elections unless they happen to coincide, as now, with another one. I simply don't know how the local parties' policies stack up for my area and there seems little easy way of finding out.)

This time, with two days to go, I am still unsure.

I think what in the end will guide me is that on this occasion we have a European election, and I should therefore vote on European issues. On this, David Cameron has disappointed me. The Conservative party policy of holding a referendum on whether to attempt to renegotiate an international treaty (the Lisbon treaty) after it has already been ratified by the UK government seems to me to be madness. My worry is that he is still at least partly a captive of the loony right wing of his party which has forgotten that Britain has lost an empire and which harbours the vain hope of re-establishing special trading areas with its former members, and an even more loony group who think the UK should apply to become a state of the United States. Possibly David Cameron calculates that Gordon Brown will not call an election before next May, and that in the meantime the other EU countries remaining to ratify it (principally Ireland, the Czech Republic, Germany and Poland) will do him a favour by doing so, thus conveniently making it a done deal.

Or even more worryingly, perhaps David Cameron really means it. I would not despair of a referendum being lost and reason prevailing, but the political atmosphere is so febrile at the moment that rational debate is likely to be drowned out by a "sod the lot of them" attitude which will take the opportunity to say no to anything. On such little things are great issues decided.

I had hopes, but also some suspicions, when Gordon Brown became Prime Minister. My suspicions seem to have triumphed: what is left of the Labour party seems to be the old municipal machine of closed-door fixers who think the ends justify any means, exported to the national scene. We have councils on this, conventions on that, consultations on the other, all carefully stage managed so that the only outcomes which will emerge are those which have already been decided. We have had behind-the-scenes filth coming from political aides within 10 Downing Street itself, turned on other members of the government. We have an ever more centralist and directive party which will only consider pretend devolution within England lest it cede any powers, and which is incapable of dealing with the anomalies which their devolution policies have created within the UK. We have a database government which has lost a clear vision of human and civil rights.

Oh dear. Many religions and early societies have purification ceremonies with which adherents may cleanse themselves after carrying out some unpleasant but necessary duty. Someone should provide a ceremony for those answering the call to vote on Thursday.

Constitutional reform

2009-06-01T15:07:00.020+01:00

It is curious how the revelations of abuse by some MPs of the expenses system that MPs have created for themselves have stimulated calls for constitutional reform.

This probably suits both sides of the argument. No doubt those MPs who are supporters of the constitutional status quo (most of the parliamentary Labour party probably) will be relieved to see attention passing to something other than them, and electoral reformers see it as their approximately once-every-decade chance to wave the flag for proportional representation. In response to these pressures we have the Prime Minister proposing to set up a "National Council for Democratic Renewal" to be formed of, wait for it, Ministers in government. Anything more guaranteed to promote centralist "top down" policy forming and minimise the prospect of democratic renewal would be difficult to imagine.

Justice Committee - Devolution: a decade on

At the same time, by co-incidence the report of the Justice Select Committee of the House of Commons (the departmental Select Committee covering the Ministry of Justice) was published at the beginning of last week looking at the British constitution from the perspective of 10 years of devolution. Whilst recognising the present anomalies of constitutional arrangements for people in England, their report was also a depressing read for its inability to get to grips with solutions. The evidence given to the Committee was interesting however, particularly that taken on 19 February last year (which can be seen here (parts one, two, three and four). Vernon Bogdanor, professor of government at Oxford Unitversity has (like John Curtice, professor of politics at Strathclyde University) for some time beaten the drum for the view that there is no constitutional problem to address with respect to the position of people in England arising as a consequence of the devolution of executive and legislative powers elsewhere; and that there is only a political issue to deal with from a feeling amongst some in England that their interests are not sufficiently taken into account, which can be solved by having more elected mayors along the lines of the Mayor of London as "figureheads" for the major cities.

Professor Bogdanor's criticisms of Ken Clarke's then partly-formed proposals for an English Grand Committee followed the Ministry of Justice handbook, positing a case where the UK government did not have a majority in England: "... if you had a government with a majority in the United Kingdom but another party with a majority in England, the government with the majority in the United Kingdom could not say it had a policy on health or education because that would depend on what the English MPs thought ... it would bring the Government to a halt".

Undoubtedly that situation would be problematic, but surely leaving things as they are in those circumstances would be even more problematic. It seems inconceivable that a UK government could spend its five year term enacting legislation on health, education, transport, local government and town and country planning relating to England only which was opposed by the majority of members in England, and which could only be passed by whipping its Scottish members through the lobbies in one division after another. Surely this would be bound to fuel unnecessary (and no doubt for the most part childish but none the less strongly felt) resentment between those in different parts of the UK. The fact of the matter is that in the circumstances posited, the only sensible course would be for co-operation between the government and the majority party in England, and if for a number of years legislative intervention were to dry up except on non-contentious issues, many might regard that as a good thing. The dangers of impasse where action is needed could be further diminished if my suggestion here were adopted, namely that if a particular part of a Bill relating to only a part of the UK were not to have a majority of members representing the part of the UK to which it applies on Third Reading in the Commons (in addition to a majority of the whole House on Third Reading), then by analogy with the power of delay available to the House of Lords, the part of the Bill in question could only be enacted by passing it again in the next session.

Unlock Democracy

However, some of the most interesting and intelligent evidence, both in analysing the issues and coming up with serviceable solutions, seems to me to come from Peter Facey representing an organisation to which I have not previously paid much attention called "Unlock Democracy". Of the problem, he said this:

"Theoretically, Professor Bogdanor is right, that there are 528 English MPs and they can outvote MPs from other parts of the United Kingdom, including the fourth bit, Northern Ireland, but the reality is that [the House of Commons] splits on party lines, on policy lines. The example which was given in the earlier session was that if at the next election a government is returned with a majority based effectively on MPs from Scotland and Wales and, because of the present political make-up of the United Kingdom, this is going to be the Labour party, in those circumstances it will depend on MPs from Scotland voting through legislation in England. That, I think, is the fundamental difficulty with Professor Bogdanor's position, even though, yes, he is right: there are more English MPs than there are Scottish or Welsh MPs. The problem when it comes down to it is that, if there are more Conservative and Liberal Democrat English MPs than there are Labour MPs but Labour has a majority in Westminster, that is when it becomes a real political issue. On the question of risk, which was the second part of the question, yes, there are risks in dealing with the English Question (or questions) and we should not pretend that there are not, but the bigger risk for me personally is the group which says, "Do not ask the question", because I think we have now got to a point where doing nothing is probably worse than doing something, that if we simply stay where we are and we let circumstances develop and we get into that crisis point it is very difficult then to do something, so now, when the issue is not as burning, is the time to deal with it. If it becomes a constitutional crisis because you effectively have England being governed by a party which is perceived, by the media at least, or elements of the media, as being not English but foisting policies on from elsewhere, then it becomes very difficult in a core, logical way to deal with the issue, and therefore we need to deal with it now, even though there are risks."

He advocates a national element for England within Westminster to deal with this (how this might differ from Ken Clarke's proposals for a Grand Committee or indeed mine relating to Third Reading remains to be seen), which would then take the pressure off the creation of artificial regional units within England in order to temper the West Lothian Question. One can then concentrate on realistic devolution to accord with what people want, rather than the devolution that the government thinks it should dictate. He said:

"I think one of the problems with the route we have gone down for decentralisation is that we have created government regions where even the one I used to live in in the south west has no recognition on the ground. Devon does not necessarily feel in the same region as the northern parts around Bristol. We also get this idea that you have to break England up into large units which can be given the same powers as Scotland and Wales. Kent has 1.3 million people. That is 300,000 people less than Northern Ireland, but Northern Ireland already is regarded as big enough to have those powers. Kent has more people in it than ten US states and those states, the smallest one being Wyoming, have more powers than the Scottish Parliament, so the idea in terms of decentralisation is that we have to somehow create these large units. I am not against it if the people in the north east want to have it on a regional basis but we must find a way forward which is flexible enough to allow those units to be choosing, whether those are government regions, collections of existing local government units or in some cases individual councils at the moment. Where you live, the county of Hampshire, again is a very similar size to Northern Ireland and if you include in it the unitary authorities it is larger than Northern Ireland, so we need to start thinking about some of our counties and local units as the vehicles for devolution and then look at bringing government below that down as well, not simply to have the idea that to do devolution in England we have to always create new units. Where that is appropriate, yes, but we also have to say that where there is demand that can be to existing units.

...

"What we are toying with the idea of is having an English devolution enabling act, which says, 'These are the powers which have already been devolved elsewhere in the United Kingdom', and if powers are then devolved later it could be be added to it, where they could be called down. They could either be asked for by existing local authorities, and if they met certain criteria they could be given to them, subject to a referendum endorsing it, or central government could say, 'We would like you to have this, subject to a referendum', or, the third option, the people themselves could call for those powers. ... The option would have to be that they could either join in with another area if they want to or they would continue with being governed by the United Kingdom Parliament. It is a messy way of doing devolution but I happen to think it goes with the grain of the governance of England"

Now this seems to me to represent a real way forward. Will it be opposed by centrists within the civil service and by the current Cabinet - most certainly, because it would offer meaningful devolution (as well as respecting people's wishes). A project of this kind could also be swamped in today's climate by that portion of the political elite on the soft left who see proportional representation as the sole or main answer to public re-engagement in politics and see now as the opportunity to promote it. There is just a chance David Cameron might pick up ideas like this, but as we found with Tony Blair, new Prime Ministers can quickly forget their zeal to deal with constitutional thorns once they have taken office and the sclerosis of power has seriously set in.

So going back to Professor Bogdanor and his unwillingness to face the issues thrown up by devolution - whilst the prospect of a UK government without a majority in England seems remote in 2010, it could occur in 2014/5. Were that to happen and a full-blown constitutional crisis to arise, the lack of vision of those such as Professors Bogdanor and Curtice in the academic community will I think have to take much of the blame.

Political balls

2009-03-05T20:37:00.003Z

In his play Julius Caesar, Shakespeare gave us the lines:

Cowards die many times before their deaths;
The valiant never taste of death but once.
Of all the wonders that I yet have heard,
It seems to me most strange that men should fear;
Seeing that death, a necessary end,
Will come when it will come.

That's because international football was not played in the sixteenth century, or this supreme explorer of the ups and downs of human existence would surely also have had to cover the England football team when considering apprehensions of death. I die a death whenever the England football team loses. I was in two weeks' mourning after England failed to qualify for Euro 2008. I strongly suspect that Shakespeare would have felt the same.

With the possible exception of Wales, each of the constituent nations of the United Kingdom are football nations. I enjoy watching six nations rugby, but it might as well be tiddly-winks compared with football, and I am pretty certain that most people in Scotland and Northern Ireland feel the same.

What the hell therefore is the (English) Football Association up to, and why do they seem so content to align themselves with the government's proposals for a British under-23 football team in the London Olympics of 2012. Gordon Brown has a Britishness agenda which seems to compel him to want to see Britain in everything, so I can at least understand where he is coming from when pressing for a British football team in the Olympics. I can even understand Sebastian Coe of the Olympic Delivery Authority, also now a politician (albeit from a different party), making himself blind to the consequences of his support for Gordon Brown's proposal, and as another mitigating factor probably his being a Chelsea supporter has resulted in him only having half a football brain left anyway.

But why is Lord Triesman, the current FA Chairman, the man supposed to be representing the interests of English football, taking Gordon Brown's agenda without quibble? I find it mystifying: possibly it is yet another example of how football and politics don't mix. Lord Triesman is a very able man, but let it be remembered that he is also now at heart a politician and was a junior Minister and government spokesman in the Lords until he resigned this week to avoid giving the impression to FIFA of there being political involvement in the 2018 World Cup bid.

The Scottish FA's analysis and leadership on this issue is completely right. The fact of the matter is that having four home nations separately represented in international football is an anomaly, which we are lucky to have and must guard jealously. We will only be able to do so for as long as we do not give FIFA a reason or excuse for reviewing the position. Fielding a British football team at the Olympics will give rise to a pointless hostage to fortune for very little benefit. Olympic football at the end of the day counts for nothing: it is the World Cup and the European Championship which are the pinacles of international football achievement for the home nations. It would be a tragedy to put at jeopardy English (and Scottish, Welsh and Nothern Irish) representation in world football simply so a few under 23s can run around a football pitch in the Olympics.

Nothing any individual member of FIFA says now makes any difference to this analysis. FIFA members come and go; international football goes on forever (or at least, until the sun becomes a red giant or there is earlier thermal runaway in the earth's climate). What is said by FIFA now will have very little impact on what is thought by FIFA in 10 or 20 years time. Politicians of all people should realise this.

My message is threefold:

Politicians: Keep out of football.

Gordon Brown: Even if you are not solely responsible, you have figured large in the ruination of our economy, please do not ruin football too.

The Football Association: Remember what and who you represent. Object wholeheartedly to this misconceived proposal by supporting the other home football associations in their opposition.

Iceland and terrorism powers

2009-03-03T19:46:00.014Z

Most people will be familiar with the story or myth that the government used "terrorism powers" to freeze UK assets of the Landsbanki bank at the time of its collapse on 7 October last year, early in the current financial crisis now upon us.

Now time has passed and tempers have cooled a little, I want to look back at that, because it seems to me to be a wrong-headed view, and it distracts from some real issues concerning terrorism and civil liberties.

Terrorism

I am as concerned as many over the erosion of civil liberties, which has been justified in part by the government on the basis that it is a government's primary duty to keep members of the public safe, including safe against terrorist outrages. This is a false or at best simplistic analysis on a number of grounds. First, there is no such thing as "safe". Life only offers degrees of risk - degrees of risk about whether you are going to be run down by a car as you walk down the street, as well as degrees of risk about whether you are likely to be blown up by a terrorist when walking down the same street (the former is incidentally considerably more probable than the second). The government is not a one-issue pressure group and must reach a balanced judgement on policy. In this case the balance is between reducing the frequency of criminal killings (or at least, increasing the frequency of being able to mete out justice to those guilty of the killings) on the one hand, and the creation of an invasive "Big Brother" society on the other.

So, for example, the police in England, Wales and Northern Ireland (but not Scotland) have power to take compulsory DNA samples from those arrested and are thereafter under no obligation to destroy them even if the people concerned are subsequently found to be innocent or indeed are never even charged once the investigation is complete. The police now hold over 1.4 million such samples of which over half are from people who have not been convicted of any offence. I was disturbed to see Harriet Harman justify this on the Andrew Marr Show at the weekend on the ground that it assisted in the conviction of rapists. No doubt it does, and rape is indeed a horrible crime, but if the efficiency of obtaining criminal convictions is the sole criterion of policy then let's just introduce the police state now; and this is from a former legal officer of the National Council for Civil Liberties. Road accidents can also be avoided by adopting Pol Pot policies for the banning of all vehicular traffic and establishing a rural paradise. (As an aside, I was pleased when the European Court of Human Rights found in December that a blanket and indiscriminate policy of the kind the government has presently adopted on DNA retention is contrary to the European Convention.)

But I have never fully gone along with the public reaction against the action on the part of the government in protecting UK assets in the case of Landsbanki and Kaupthing. This reaction seems to be based on the proposition that the title of the "Anti-Terrorism, Crime and Security Act 2001" (which is the enactment which contained some of the powers used by the UK government) has the word "terrorism" in it. It also contains the words "crime" and "security". First a run down on some of the facts.

Landsbanki, Glitnir and Kaupthing

On 7 October the Icelandic government stepped in and took control of the Landsbanki bank because of the considerable excess of its liabilities over its assets. It announced that it would do all it could to protect the savings of the bank's Icelandic customers, but this commitment did not in its terms extend to its foreign savers. In addition, the UK government stated that the Icelandic government had been unable to confirm that it would meet its obligations to cover the first £16,000 of sums invested in the bank by foreign savers. There appears to have been, amongst other things, a telephone exchange¹ which included:

UK Chancellor: "So the entitlements the people have, which I think is about £16,000, they will be paid?"

Icelandic Finance Minister: "I hope that will be the case. I cannot state that or guarantee that now but we are certainly working to solve this issue."

Later on 7 October the Icelandic government also took control of another bank, Glitnir.

The UK government described the special treatment of Icelandic savers, and the refusal to give a straightforward answer to a straightforward question on depositor insurance, as "effectively illegal" (they were perhaps too nice to say that a failure to meet insurance obligations would be "effectively theft"), and the UK government clearly felt that more might be on the way. Frankly, the loss of savings already in Iceland was probably not a surprise to the government, and international defaults do from time to time occur at times of crisis. What it appears that the UK government feared was that such good assets of Landsbanki as it possessed in the UK, and assets of UK subsidiaries of the Kaupthing bank, would be siphoned off in the direction of Iceland, leaving UK savers in those banks high and dry. As any government would and should do in these circumstances, it looked at its options.

UK government action

There were a number of possible routes the UK government could follow to protect UK savers' assets from disappearing abroad, but the most straightforward with respect to Landsbanki and its Icesave operation (which did not operate via UK subsidiaries), and the one which presumably the government on legal advice considered was the most likely to limit the loss of UK savings, was offered by section 4 of the Anti-Terrorism, Crime and Security Act 2001. This provides:

"4(1) The Treasury may make a freezing order if the following two conditions are satisfied.

(2) The first condition is that the Treasury reasonably believe that—

(a) action to the detriment of the United Kingdom’s economy (or part of it) has been or is likely to be taken by a person or persons, or

(b) action constituting a threat to the life or property of one or more nationals of the United Kingdom or residents of the United Kingdom has been or is likely to be taken by a person or persons.

(3) If one person is believed to have taken or to be likely to take the action the second condition is that the person is—

(a) the government of a country or territory outside the United Kingdom, or

(b) a resident of a country or territory outside the United Kingdom.

(4) If two or more persons are believed to have taken or to be likely to take the action the second condition is that each of them falls within paragraph (a) or (b) of subsection (3); and different persons may fall within different paragraphs."

Acting under these powers, on 8 October the Landsbanki Freezing Order 2008 was made by the Treasury, freezing Landsbanki assets in the UK at 10.10am.

The Treasury shortly after made the Kaupthing Singer & Friedlander Limited Transfer of Certain Rights and Liabilities Order 2008 under banking legislation, providing arrangements for the taking over and transfer of the assets of the UK subsidiary companies of Kaupthing to ING Direct NV (a Dutch company). Following the making of this order, Kaupthing went into administrative receivership in Iceland (it is in administrative protection but not technically bankrupt) - following the bursting of the Iceland bubble its only worthwhile assets were those of its successful overseas subsidiaries - and some other European countries also made transfer of assets orders of Kaupthing subsidiaries under their own banking legislation. Whether this was linked to fears about the flight of assets is not entirely clear, as the Financial Services Authority appears to have separately reported on 8 October that the Kaupthing subsidiary no longer met its threshold conditions for FSA authorisation due to lack of funding (something not related to its Kaupthing parent except to the extent that there would have been issues about the ability of the parent to further capitalise its subsidiary to bring it within the rules - it probably could not).

I have to say that, had the UK government failed to take emergency steps to protect UK assets in order to prevent them being exported to Iceland, then I think they would rightly have been subject to very substantial criticism. Faced with an Icelandic bank with substantial UK investors having become effectively worthless, an Icelandic government announcing investor protection arrangements only applying to Icelandic nationals, and the havering of the Icelandic Finance Minister over even meeting its insurance obligations at a time when every second counts in terms of capital movements, would have been extremely worrying. The discriminatory treatment against non-Icelandic investors was also probably contrary to the Icelandic government's obligations relating to the European Economic Area (both the Dutch and UK governments are of that view, disputed of course by the Icelandic government).

Icelandic view

Many people in Iceland, including the Icelandic government, seem to be upset about the actions of the UK government, and also at action taken by the Dutch government to protect their investors. The Icelandic government have abandoned proposals to take the UK government to court in the UK by way of judicial review for the freezing of Landsbanki assets, but say that they will bring proceedings before the European Court of Human Rights on Landsbanki. They say they intend to bring judicial review proceedings in the UK in respect of Kaupthing, but they are surely now out of time to do so.

One feels every sympathy with the predicament of the people of Iceland, who having had a significant proportion of their national economy built on a bubble have been victims of their bankers' irresponsibility and avarice to a considerably greater extent than have the people of the UK (and it has been bad enough in the UK); I can also understand why, given the predicament of the Icelandic economy, the Icelandic government might choose to abandon its obligations to those outside Iceland. However, watching UK assets disappear north-westwards is not an option. Furthermore, Part 2 of the 2001 Act (within which section 4 is situated) is not only or even primarily concerned with terrorism, but with economic damage, which undoubtedly would have been caused had there been an exporting of Landsbanki assets to Iceland. Part 2 is most definitely not intended for use in dealing with the proceeds of terrorism, as some have suggested (it is section 1, in Part 1, which does that). Having decided to put its own nationals first with the remaining assets at its disposal - as I say, understandable in the circumstances - it seems odd for the Icelandic government then to complain about the UK government doing the same for UK nationals.

One also has to ask what point the Icelandic government are trying to make on Landsbanki, other than enjoying pointing blame away from themselves by whipping up hysteria against Gordon Brown and Alastair Darling. Everyone agrees Landsbanki is and was bust, and had already ceased trading by the time the freezing order was made. So the Icelandic government seriously wants to argue in the European Court of Human Rights that it was not only lawful for them to move money contributed by UK investors out of the UK for the purposes only of compensating Icelandic savers, but it was also unlawful for the UK government to prevent them from doing so?

Kaupthing is a slightly different case because the making of the transfer order under banking legislation for the transfer of its UK subsidiary's assets appears to have triggered the parent company's move into administration in Iceland. However if it is correct that by 8 October the Kaupthing subsidiary had failed to meet UK funding requirements then some intervention would have been required given that by 8 October it would probably have been impossible for it to re-capitalise.

Part 2 of the Anti-Terrorism, Crime and Security Act 2001

What of Part 2 of the 2001 Act though?

It is a requirement of the making of an Order under section 4 that the Treasury must have reasonable grounds for believing action to the detriment of the United Kingdom's economy is intended, and in order to continue in effect the order must be approved by both Houses of Parliament within 28 days. An order can only last 2 years, and must be reviewed by the Treasury.

Perversely perhaps, the fact that freezing orders are subject to affirmative resolution in Parliament would make it more difficult to bring proceedings in court for judicial review on the ground that the Treasury's belief was not reasonable. Whether there should be a procedure for court approval as well as or instead of Parliamentary approval perhaps depends on where you think the balance between the judiciary and Parliament should lie in relation to such approvals, but it seems highly improbable that a court would have done anything except approve the freezing of assets in this particular case.

Part of the public criticism of the government about Landsbanki is almost certainly a reflection of general public disquiet over the extent to which terrorism and crime are being used as reasons (critics might say excuses) for the slow and apparently continuing erosion of our basic civil liberties. But in my view Landsbanki is not an example of this. Possibly we also see something of ourselves in "plucky little Iceland".

I am much more concerned about the creep towards a surveillance society, arbitrary police powers and the "you don't need to worry if you're not guilty" approach to human rights.

________________________________________________

¹See eg the debate in Committee in the House of Commons on the freezing order here

Blogs, the Enlightenment and Creationism revisited

2009-02-09T23:21:00.013Z

In Blogs, the Enlightenment and Creationism I wrote about, amongst other things, so-called "intelligent design" and the Kitzmiller/Dover case.

I have recently come across a publication entitled "Rescuing Darwin" by Nick Spencer and Denis Alexander, published by Theos, which is well worth a read for those interested in the subject, and which also contains a description of the results of recent polling on public attitudes to Darwinian evolution by natural selection.

It is freely available but under terms which are to my poor mind next to incomprehensible. Despite that, it is clear enough that it is free for individual readers to download (go to the "download report" link on the page I have given) and read, so download and enjoy.

For those living near or visiting London, I also recommend an outing to Down House, Darwin's former family home now run by English Heritage, which gives a remarkable insight into Darwin's life and ideas. A google search will find internet links, with particulars of when it is open.

Devolution and the West Lothian Question - Part 5: 85% is enough

2009-01-19T16:09:00.005Z

Related articles:
Part 1
Part 2
Part 3
Part 4

I have received an answer to my letter of 13th December referred to in Part 4, which is here. I am glad to say that the correspondence is now drawing to a close, but the essential proposition underlying present Ministers' thinking is now clear: 85% representation on matters devolved elsewhere is enough.

As I say in my response, I think the government is playing a dangerous game here for their own party advantage. As I mention in Part 3, "what I believe would threaten the future of the UK, and at the very minimum cause unacceptable ill-feeling within its constituent parts, is if a UK government were regularly and persistently to enact (by means of whipping Scottish members) controversial legislation for England (and Wales prior to a successful Assembly Act referendum) on matters devolved in Scotland which is opposed by the majority of members elected for England (and Wales prior to the referendum). The threat would be even worse if there were a SNP government in Scotland pouring petrol on the flames."

Present Ministers seem content to play this game were this electoral outcome to arise, notwithstanding that it would be almost certain to fail in the end.

Why have we reached the situation that Ministers seem unable to recognise that, even after causing such ill-feeling, the party advantage they look for would in the end elude them? Jack Straw seems to be a man on the back burner. The present situation seems to be a combination of a Minister of Justice who has lost interest in the job, and a clever Prime Minister who suffers from a one-track mind. (As an aside, on the few occasions I see Jack Straw on the television, he looks ever more doleful and ever more like my dog - somewhat alarming as it is owners who are supposed to grow to resemble their dog).

I am a sports fan, and I enjoy listening to BBC Radio 5's Saturday morning programme "Fighting Talk". In this programme, four sports personalities gain points by commenting in an entertaining way on topical sporting issues put to them. The two who at the end of the programme have the most points have a "play-off" to decide the winner called "Defending the indefensible". They have to try to argue an absurd sporting proposition convincingly.

The Withering Vine

The make-up of the Commission on the West Lothian Question

Binding referenda

Michael Moore's statement

Incitefulness

A referendum

Very dangerous times, Part 2

Very dangerous times

Commission on the West Lothian Question

New Labour and service provision

Commoditised software

Internet access and censorship

Keep calm and carry on

MPs get tough

Privacy and superinjunctions - some facts

Responses to the SNP's victory

Independence, the Scottish Parliament and the Scottish Government

The aftermath

A dismal campaign

Inflation and hypocrisy

Libya

Census forms

Law making for Wales

Localism

Student debt

The West Lothian question rumbles on

Internet censorship

Don't blink

The Woolas election judgement

You'll never walk alone (even in Texas)

The Conflict of Laws (Eady v The World)

The Final Holtham Commission Report

Unicorns and trade marks

The 55% proposal

A coalition with potential

How much time is there

Gordon Brown doing the right thing

The aftermath

The SNP and the BBC

In the thick of it

The perils of political debate

More on the West Lothian Question

Simon says: fair comment

Constitutional Futures

Watching the International Intellectual Property Alliance and the US Trade Representative

Power 2010: the sequel

Power 2010: the story so far

Warming to the argument, Part 2

Warming to the argument

Keeping confidences

Digital Economy Bill

The long game

More constitutional introspection

Forever young

Trafigura: The Sequel

Trafigura: Oil and law don't mix

A posthumous apology

Laying the ghost

The Quality of Mercy

House of Lords Committee on the Barnett Formula

Parliamentary Standards Bill

The cycle of life

Calman, taxation and representation

Calman Report

Voting reform

What to do on Thursday

Constitutional reform

Political balls

Iceland and terrorism powers

Blogs, the Enlightenment and Creationism revisited

Devolution and the West Lothian Question - Part 5: 85% is enough