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).
Wednesday, 28 April 2010
Friday, 16 April 2010
The perils of political debate
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.
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.
More on the West Lothian Question
Victor Bogdanor, Professor of Government at Oxford University, has been opining again, this time in an article in today's Times, mainly centering on what he thinks will be a Liberal Democrat break-through in the election in May. Certainly Nick Clegg seems to have done quite well in yesterday's TV debate and it does make the election an intriguing one. Professor Bogdanor's main thesis in the article is (and has been in the past) that proportional representation in the House of Commons is the way to go.
At the same time, he has taken another opportunity to take a swipe at the Conservative party's policy on the West Lothian Question which now features in their manifesto, namely to have an English Grand Committee for domestic legislation, such as on health, education and local government, which only applies to England or to England and Wales.
He says this about the manifesto:
First, the Tory policy is for an English Grand Committee, not "in short, English votes on English laws". Under the Tory policy no Bill applying only to England or England and Wales could pass its second and third reading stages without a majority of all members of the House of Commons, including Scottish and Northern Irish members. If Scottish members don't like a particular proposal, they can vote to block it.
Secondly, were there to be a cut in education spending in England, it does not mean the Scottish government would have to do the same to its education expenditure, as expenditure is not hypothecated in this way. The block grant paid into the Scottish Consolidated Fund is calculated globally by reference to all expenditure on matters in England which are devolved in Scotland. Were the Scottish block grant to be reduced because of cuts in expenditure in England on education, the Scottish government could choose to maintain education spending at the expense of something else: but in fact Scottish block grant would not be cut at all unless a cut in the English budget for education were to be used either to fund UK-wide expenditure (for example, defence and foreign affairs) or were to be used to cut general taxation. Were it to be used to cut general taxation, the Scottish Government could decide to maintain levels of taxation in Scotland by exercising its right to raise income tax by up to 3p in the pound (which the Scottish Parliament already has the power to do and does not rely on Calman), so providing the revenue which they would otherwise lose by the UK tax cut.
Thirdly, as I have previously mentioned, service legislation on, say, education would only very rarely have a direct effect on spending. It is the annual expenditure votes for the services concerned which determine that, on which all members of the House of Commons can and do vote. (For more information on how so-called supply works, see this.)
Lastly, both the Conservative and Liberal Democrat parties now have proposals to replace the Barnett formula with a needs based formula. Were that to be done, the argument (poor as in my view it was to begin with when examined critically) falls flat on its face.
At the same time, he has taken another opportunity to take a swipe at the Conservative party's policy on the West Lothian Question which now features in their manifesto, namely to have an English Grand Committee for domestic legislation, such as on health, education and local government, which only applies to England or to England and Wales.
He says this about the manifesto:
"'A Conservative Government', the manifesto declares, 'will introduce new rules so that legislation referring specifically to England, or to England and Wales, cannot be enacted without the consent of MPs representing constituencies of those countries' — in short, English votes for English laws.This is the "Barnett consequential" argument. The trouble is that, as I have mentioned before, this analysis is wrong. It as if, by repeating it often enough, it becomes right.
"The trouble is, however, that any issue at Westminster involving the expenditure of public money is of concern to Scotland, since it may affect the level of taxation in Scotland and also, indirectly, the level of Scottish public expenditure. Scotland is financed through a block fund, the size of which depends, through the Barnett formula, on expenditure in England.
"Were a Conservative government to cut expenditure in a devolved area such as, for example, education, there would be a knock-on effect north of the Border. The Scots would have to cut their own expenditure on education, whether they wished to or not. It is for this reason that MPs from the devolved areas currently retain the right to vote on what might seem to be merely English domestic affairs."
First, the Tory policy is for an English Grand Committee, not "in short, English votes on English laws". Under the Tory policy no Bill applying only to England or England and Wales could pass its second and third reading stages without a majority of all members of the House of Commons, including Scottish and Northern Irish members. If Scottish members don't like a particular proposal, they can vote to block it.
Secondly, were there to be a cut in education spending in England, it does not mean the Scottish government would have to do the same to its education expenditure, as expenditure is not hypothecated in this way. The block grant paid into the Scottish Consolidated Fund is calculated globally by reference to all expenditure on matters in England which are devolved in Scotland. Were the Scottish block grant to be reduced because of cuts in expenditure in England on education, the Scottish government could choose to maintain education spending at the expense of something else: but in fact Scottish block grant would not be cut at all unless a cut in the English budget for education were to be used either to fund UK-wide expenditure (for example, defence and foreign affairs) or were to be used to cut general taxation. Were it to be used to cut general taxation, the Scottish Government could decide to maintain levels of taxation in Scotland by exercising its right to raise income tax by up to 3p in the pound (which the Scottish Parliament already has the power to do and does not rely on Calman), so providing the revenue which they would otherwise lose by the UK tax cut.
Thirdly, as I have previously mentioned, service legislation on, say, education would only very rarely have a direct effect on spending. It is the annual expenditure votes for the services concerned which determine that, on which all members of the House of Commons can and do vote. (For more information on how so-called supply works, see this.)
Lastly, both the Conservative and Liberal Democrat parties now have proposals to replace the Barnett formula with a needs based formula. Were that to be done, the argument (poor as in my view it was to begin with when examined critically) falls flat on its face.
Saturday, 3 April 2010
Simon says: fair comment
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:
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.
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.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.
"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 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.
Sunday, 28 February 2010
Constitutional Futures
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.
Saturday, 27 February 2010
Watching the International Intellectual Property Alliance and the US Trade Representative
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.
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.
Wednesday, 24 February 2010
Power 2010: the sequel
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.
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.
Friday, 15 January 2010
Power 2010: the story so far
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.
______________
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.
Sunday, 20 December 2009
Warming to the argument, Part 2
So the Copenhagen climate change conference is over, with some good news as well as bad news.
Copenhagen
On the good news side, China and the US have actually managed to agree something. On the bad news side, it was not enough to meet UN targets of limiting rises in global temperatures to 2C above pre-industrial levels, and most of the other countries there might as well not have turned up. The other countries and in particular the EU could have failed to "take note of" the US/China accord, which was supported by Brazil and India, as a protest, but since the accord was not approved at the conference - unanimity would have been required for approval and that was not available from those countries who stand to be flooded by it - that would only have been symbolic. Also on the good side, it looks as if some concerted action will be taken on deforestation, which as I mentioned in Part 1 has a significant impact on the earth's carbon sink.
On limiting temperature rises, the accord stated that "We shall, recognising the scientific view that the increase in global temperature should be below 2C, on the basis of equity and in the context of sustainable development, enhance our long-term co-operative action to combat climate change." The accord did not in fact on its words adopt 2C as a target, even as a non-binding one, but instead "recognised" it as "the scientific view". The Intergovernmental Panel on Climate Change which is the author of this scientific view recommends that to meet a 2C target, developed countries must cut emissions by at least 25% from 1990 levels by 2020, and that global emissions must peak and begin to decline by 2020 at the latest. The accord came up with no collective target to cut emissions to achieve this and it did not specify a year at which emissions are to peak.
Because of the weak formulation of the agreement between the US and China, the EU did not offer, as it was prepared to do, to move its current target of a 20% cut in emissions by 2020 to 30%, and Australia and Japan stuck to their minimum offers. These offers will now be considered at the next round of discussions in Mexico next year, but China, India and Brazil will not it appears accept independent verification of whether they will meet whatever is agreed because of concerns about national sovereignty (or, put more succinctly, they do not like being pushed around by the west given that the west is still the largest global producer of human induced carbon dioxide).
The IPCC view is that what looks to be on offer for Mexico will cause global temperatures to rise by around 3C, but this seems to be about the best that can be achieved at the moment. As I mentioned in Part 1, feedback effects make it difficult to say for sure what the final result of the expected levels of carbon dioxide to be put into the atmosphere will be, because how the oceans will react to these rises is still subject to research.
Subsidiary issues
I have three other subsidiary thoughts. First, some of the remarks made about China: if I were in the Chinese government I would be somewhat annoyed about these. China may by now be putting into the atmosphere about the same amount, or slightly more, carbon dioxide than the US, but if so it is still way behind in emissions per head. China has a population of around 1,300 million, and the US around 310 million. There seems to me to be some hypocrisy at work here in order to force China to a (necessary) deal.
Secondly, despite forcing China into a deal it is not a foregone conclusion that President Obama will get the modest commitments made by him for the US through Congress, and in particular the Senate. The US is a wonderful but strange country (I was partly educated there and I like the place), but part of its strangeness is the anti-science views held by some of the right wing in the Republican party, where science sometimes seems to be viewed as a test of one's faith rather than representing any objective reality, supported in part also by the view that concessions are for wimps and inconsistent with the country's national prestige. I have noticed that this tinge of irrationality seems to be affecting some of the right wing political blogs in the UK now also (we have sites referring to the IPCC as "climate cooling deniers"), but this seems partly for the fun of having a good argument, partly a dislike of Gordon Brown and partly because those interested in politics tend not to know much about science.
Thirdly then, Gordon Brown. Readers of this blog will know I do not like the Gordon Brown/Ed Balls/Charlie Whelan axis of fixers which now charts the direction of the Labour Party in the lead up to next year's election, and which I happen to think the Labour party will end up regretting and find quite damaging to them. I also happen to think that Gordon Brown is unelectable. And I think his major role, with Donald Dewar, in bringing forward devolution for Scotland in a way which is seriously unfair to people in England, in order to retain electoral advantages for the Labour party in forming a UK government, is to be seriously deprecated. And I think he is now being reckless with the public finances (and also that his agreement with the French to tax the City to produce money for the global warming fund for developing nations shows an astonishing lack of grasp of the national interest1).
However, on climate change the fact of the matter is that he has been putting in significant good work, and I do not think this was just political posturing with an eye to next year's election. I must give some credit where it is due.
______________________________
1 This fund is one of the good news parts of the accord. But putting a specific tax on the City is madness.
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.
Thursday, 17 December 2009
Warming to the argument
As it has been snowing today, I thought I would turn to global warming, which has been the subject of debate since internal e-mails within the Climate Research Unit of the University of East Anglia were hacked into and published.
Those involved in climate research have been "revising" or "weighting" old data, and it so happens that this revising has emphasised warming in the last two decades as against temperatures experienced during a warm period between around 1000 and 1350 AD and in the 1930s. The issue is whether this revising was for objective scientific reasons - to account for example for a better understanding of differences in measuring techniques applicable to estimating temperatures at different times in the past (eg from tree rings) - or whether the hacked e-mails show that there has been an illegitimate manipulation of data done because those who did it thought it was "in a good cause", namely to strengthen the case for the saving of the planet. A sub-issue is the extent to which the collected data is still objectively reliable given this revision.
The background
Some facts are a matter of accepted science by all those on both sides of the debate. It is indisputable that human activity has affected and will continue to affect the global climate. Everyone accepts that carbon dioxide at trace levels is a greenhouse gas, the release of which into the atmosphere by the burning of fossil fuels will increase global temperatures. The question is to what extent and whether it matters.
The problem here is that the impact of increases of carbon dioxide in the atmosphere creates instabilities: every mole of carbon dioxide that is released into the atmosphere causes through warming approximately an additional two moles of water vapour to be released, which has a more potent greenhouse effect than does carbon dioxide. In addition, as polar ice melts, the heat absorption of the earth increases (less solar radiation is reflected back into space) thus also increasing temperatures, and the methane trapped in frozen northern latitudes is also released to the atmosphere, which is itself a very potent greenhouse gas. Against that there are balancing factors the other way, namely that both the oceans and natural plant growth (and plant growth increases as levels of carbon dioxide increase) form carbon dioxide sinks; and increased cloud formation increases the reflection of solar radiation from earth. It is indisputable that a point would be reached at which the second will not be capable of accommodating the first and some form of runaway would take place. This tipping point would come at lower levels of fossil fuel consumption if we continue to cut down the rain forests, as the rain forests form a significant proportion of the earth's current carbon sink. There are other natural processes, in particular rock (silicate) weathering, which decrease levels of carbon dioxide, but the time scales for this are much too long to operate in the period we are concerned with.
All climate scientists agree that the ultimate fate of the earth will be thermal runaway, and the climate will become similar to that of Venus - temperatures well beyond 100C and so hot as to incapable of sustaining any form of conventional life. This will occur irrespective of the effects of mankind on the environment because the luminosity of the sun is increasing at a rate of about 8% per 1 billion years as it expends its nuclear fuel. The earth is now approximately 4.5 billion years old, and plant life in one form or another has existed for about 500 million years. In approximately 100 million years the indirect effects of rising temperatures on photosynthesis from increased solar radiation will cause most of today's plant life to die out (perversely perhaps, this will arise because silicate weathering from increased temperatures will by then have reduced levels of carbon dioxide to below those necessary for the main form of photosynthesis to take place). In 1 billion years' time the oceans will have evaporated and earth will begin losing some of its atmosphere; and by about 4 billion years' time complete thermal runaway will have taken place. Such life destroying thermal runaway will be later followed by the sun turning into a red giant in its final period of nuclear fusion about 7 billion years from now, during which the earth will be burnt to a crisp. The sun will then collapse and be extinguished (it will become a black dwarf).
Such extinction of life is a long way ahead viewed from our perspective (although a short time ahead in terms of the evolution of life on earth), and I entirely accept the argument that we do not want to hasten our demise, but as Private Fraser would have said, as a species "we're all doomed I tell ye"1.
Moving back to the present, it should also be noted that the earth has already experienced wide climate variation. We are at present in an ice age, that is a time when there are permanent ice sheets on both poles. To be more exact we are in an inter-glacial period of an ice age. There have been times (in fact the majority of time in the history of animal life on earth) when there have been no permanent ice caps. There have been other times when the ice sheets have nearly extended to the equator - the "snowball earth". This climate variation has been caused by variations in the luminosity of the sun (which as mentioned increases over time), the position of the earth and its orbit in relation to the sun and most particularly by the effect of the movements of the continents through plate tectonics on ocean currents.
Where we are
For the reasons mentioned above, in planning for the future we are looking at around the next 50 to 100 million years (a long time by human standards). After that, the bets are off from natural causes which we cannot avert. As I say, the question is whether human induced global warming (as opposed to long term solar induced global warming) matters when looking at that period. The problem we have is that we don't know for sure how serious those effects will be, but there certainly will be effects.
The two possible effects from increasing levels of carbon dioxide deposition in the atmosphere are:
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.
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 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.
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