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".
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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.
Friday, 15 January 2010
Sunday, 20 December 2009
Warming to the argument, Part 2
So the Copenhagen climate change conference is over, with some good news as well as bad news.
Copenhagen
On the good news side, China and the US have actually managed to agree something. On the bad news side, it was not enough to meet UN targets of limiting rises in global temperatures to 2C above pre-industrial levels, and most of the other countries there might as well not have turned up. The other countries and in particular the EU could have failed to "take note of" the US/China accord, which was supported by Brazil and India, as a protest, but since the accord was not approved at the conference - unanimity would have been required for approval and that was not available from those countries who stand to be flooded by it - that would only have been symbolic. Also on the good side, it looks as if some concerted action will be taken on deforestation, which as I mentioned in Part 1 has a significant impact on the earth's carbon sink.
On limiting temperature rises, the accord stated that "We shall, recognising the scientific view that the increase in global temperature should be below 2C, on the basis of equity and in the context of sustainable development, enhance our long-term co-operative action to combat climate change." The accord did not in fact on its words adopt 2C as a target, even as a non-binding one, but instead "recognised" it as "the scientific view". The Intergovernmental Panel on Climate Change which is the author of this scientific view recommends that to meet a 2C target, developed countries must cut emissions by at least 25% from 1990 levels by 2020, and that global emissions must peak and begin to decline by 2020 at the latest. The accord came up with no collective target to cut emissions to achieve this and it did not specify a year at which emissions are to peak.
Because of the weak formulation of the agreement between the US and China, the EU did not offer, as it was prepared to do, to move its current target of a 20% cut in emissions by 2020 to 30%, and Australia and Japan stuck to their minimum offers. These offers will now be considered at the next round of discussions in Mexico next year, but China, India and Brazil will not it appears accept independent verification of whether they will meet whatever is agreed because of concerns about national sovereignty (or, put more succinctly, they do not like being pushed around by the west given that the west is still the largest global producer of human induced carbon dioxide).
The IPCC view is that what looks to be on offer for Mexico will cause global temperatures to rise by around 3C, but this seems to be about the best that can be achieved at the moment. As I mentioned in Part 1, feedback effects make it difficult to say for sure what the final result of the expected levels of carbon dioxide to be put into the atmosphere will be, because how the oceans will react to these rises is still subject to research.
Subsidiary issues
I have three other subsidiary thoughts. First, some of the remarks made about China: if I were in the Chinese government I would be somewhat annoyed about these. China may by now be putting into the atmosphere about the same amount, or slightly more, carbon dioxide than the US, but if so it is still way behind in emissions per head. China has a population of around 1,300 million, and the US around 310 million. There seems to me to be some hypocrisy at work here in order to force China to a (necessary) deal.
Secondly, despite forcing China into a deal it is not a foregone conclusion that President Obama will get the modest commitments made by him for the US through Congress, and in particular the Senate. The US is a wonderful but strange country (I was partly educated there and I like the place), but part of its strangeness is the anti-science views held by some of the right wing in the Republican party, where science sometimes seems to be viewed as a test of one's faith rather than representing any objective reality, supported in part also by the view that concessions are for wimps and inconsistent with the country's national prestige. I have noticed that this tinge of irrationality seems to be affecting some of the right wing political blogs in the UK now also (we have sites referring to the IPCC as "climate cooling deniers"), but this seems partly for the fun of having a good argument, partly a dislike of Gordon Brown and partly because those interested in politics tend not to know much about science.
Thirdly then, Gordon Brown. Readers of this blog will know I do not like the Gordon Brown/Ed Balls/Charlie Whelan axis of fixers which now charts the direction of the Labour Party in the lead up to next year's election, and which I happen to think the Labour party will end up regretting and find quite damaging to them. I also happen to think that Gordon Brown is unelectable. And I think his major role, with Donald Dewar, in bringing forward devolution for Scotland in a way which is seriously unfair to people in England, in order to retain electoral advantages for the Labour party in forming a UK government, is to be seriously deprecated. And I think he is now being reckless with the public finances (and also that his agreement with the French to tax the City to produce money for the global warming fund for developing nations shows an astonishing lack of grasp of the national interest1).
However, on climate change the fact of the matter is that he has been putting in significant good work, and I do not think this was just political posturing with an eye to next year's election. I must give some credit where it is due.
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1 This fund is one of the good news parts of the accord. But putting a specific tax on the City is madness.
Copenhagen
On the good news side, China and the US have actually managed to agree something. On the bad news side, it was not enough to meet UN targets of limiting rises in global temperatures to 2C above pre-industrial levels, and most of the other countries there might as well not have turned up. The other countries and in particular the EU could have failed to "take note of" the US/China accord, which was supported by Brazil and India, as a protest, but since the accord was not approved at the conference - unanimity would have been required for approval and that was not available from those countries who stand to be flooded by it - that would only have been symbolic. Also on the good side, it looks as if some concerted action will be taken on deforestation, which as I mentioned in Part 1 has a significant impact on the earth's carbon sink.
On limiting temperature rises, the accord stated that "We shall, recognising the scientific view that the increase in global temperature should be below 2C, on the basis of equity and in the context of sustainable development, enhance our long-term co-operative action to combat climate change." The accord did not in fact on its words adopt 2C as a target, even as a non-binding one, but instead "recognised" it as "the scientific view". The Intergovernmental Panel on Climate Change which is the author of this scientific view recommends that to meet a 2C target, developed countries must cut emissions by at least 25% from 1990 levels by 2020, and that global emissions must peak and begin to decline by 2020 at the latest. The accord came up with no collective target to cut emissions to achieve this and it did not specify a year at which emissions are to peak.
Because of the weak formulation of the agreement between the US and China, the EU did not offer, as it was prepared to do, to move its current target of a 20% cut in emissions by 2020 to 30%, and Australia and Japan stuck to their minimum offers. These offers will now be considered at the next round of discussions in Mexico next year, but China, India and Brazil will not it appears accept independent verification of whether they will meet whatever is agreed because of concerns about national sovereignty (or, put more succinctly, they do not like being pushed around by the west given that the west is still the largest global producer of human induced carbon dioxide).
The IPCC view is that what looks to be on offer for Mexico will cause global temperatures to rise by around 3C, but this seems to be about the best that can be achieved at the moment. As I mentioned in Part 1, feedback effects make it difficult to say for sure what the final result of the expected levels of carbon dioxide to be put into the atmosphere will be, because how the oceans will react to these rises is still subject to research.
Subsidiary issues
I have three other subsidiary thoughts. First, some of the remarks made about China: if I were in the Chinese government I would be somewhat annoyed about these. China may by now be putting into the atmosphere about the same amount, or slightly more, carbon dioxide than the US, but if so it is still way behind in emissions per head. China has a population of around 1,300 million, and the US around 310 million. There seems to me to be some hypocrisy at work here in order to force China to a (necessary) deal.
Secondly, despite forcing China into a deal it is not a foregone conclusion that President Obama will get the modest commitments made by him for the US through Congress, and in particular the Senate. The US is a wonderful but strange country (I was partly educated there and I like the place), but part of its strangeness is the anti-science views held by some of the right wing in the Republican party, where science sometimes seems to be viewed as a test of one's faith rather than representing any objective reality, supported in part also by the view that concessions are for wimps and inconsistent with the country's national prestige. I have noticed that this tinge of irrationality seems to be affecting some of the right wing political blogs in the UK now also (we have sites referring to the IPCC as "climate cooling deniers"), but this seems partly for the fun of having a good argument, partly a dislike of Gordon Brown and partly because those interested in politics tend not to know much about science.
Thirdly then, Gordon Brown. Readers of this blog will know I do not like the Gordon Brown/Ed Balls/Charlie Whelan axis of fixers which now charts the direction of the Labour Party in the lead up to next year's election, and which I happen to think the Labour party will end up regretting and find quite damaging to them. I also happen to think that Gordon Brown is unelectable. And I think his major role, with Donald Dewar, in bringing forward devolution for Scotland in a way which is seriously unfair to people in England, in order to retain electoral advantages for the Labour party in forming a UK government, is to be seriously deprecated. And I think he is now being reckless with the public finances (and also that his agreement with the French to tax the City to produce money for the global warming fund for developing nations shows an astonishing lack of grasp of the national interest1).
However, on climate change the fact of the matter is that he has been putting in significant good work, and I do not think this was just political posturing with an eye to next year's election. I must give some credit where it is due.
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1 This fund is one of the good news parts of the accord. But putting a specific tax on the City is madness.
Thursday, 17 December 2009
Warming to the argument
As it has been snowing today, I thought I would turn to global warming, which has been the subject of debate since internal e-mails within the Climate Research Unit of the University of East Anglia were hacked into and published.
Those involved in climate research have been "revising" or "weighting" old data, and it so happens that this revising has emphasised warming in the last two decades as against temperatures experienced during a warm period between around 1000 and 1350 AD and in the 1930s. The issue is whether this revising was for objective scientific reasons - to account for example for a better understanding of differences in measuring techniques applicable to estimating temperatures at different times in the past (eg from tree rings) - or whether the hacked e-mails show that there has been an illegitimate manipulation of data done because those who did it thought it was "in a good cause", namely to strengthen the case for the saving of the planet. A sub-issue is the extent to which the collected data is still objectively reliable given this revision.
The background
Some facts are a matter of accepted science by all those on both sides of the debate. It is indisputable that human activity has affected and will continue to affect the global climate. Everyone accepts that carbon dioxide at trace levels is a greenhouse gas, the release of which into the atmosphere by the burning of fossil fuels will increase global temperatures. The question is to what extent and whether it matters.
The problem here is that the impact of increases of carbon dioxide in the atmosphere creates instabilities: every mole of carbon dioxide that is released into the atmosphere causes through warming approximately an additional two moles of water vapour to be released, which has a more potent greenhouse effect than does carbon dioxide. In addition, as polar ice melts, the heat absorption of the earth increases (less solar radiation is reflected back into space) thus also increasing temperatures, and the methane trapped in frozen northern latitudes is also released to the atmosphere, which is itself a very potent greenhouse gas. Against that there are balancing factors the other way, namely that both the oceans and natural plant growth (and plant growth increases as levels of carbon dioxide increase) form carbon dioxide sinks; and increased cloud formation increases the reflection of solar radiation from earth. It is indisputable that a point would be reached at which the second will not be capable of accommodating the first and some form of runaway would take place. This tipping point would come at lower levels of fossil fuel consumption if we continue to cut down the rain forests, as the rain forests form a significant proportion of the earth's current carbon sink. There are other natural processes, in particular rock (silicate) weathering, which decrease levels of carbon dioxide, but the time scales for this are much too long to operate in the period we are concerned with.
All climate scientists agree that the ultimate fate of the earth will be thermal runaway, and the climate will become similar to that of Venus - temperatures well beyond 100C and so hot as to incapable of sustaining any form of conventional life. This will occur irrespective of the effects of mankind on the environment because the luminosity of the sun is increasing at a rate of about 8% per 1 billion years as it expends its nuclear fuel. The earth is now approximately 4.5 billion years old, and plant life in one form or another has existed for about 500 million years. In approximately 100 million years the indirect effects of rising temperatures on photosynthesis from increased solar radiation will cause most of today's plant life to die out (perversely perhaps, this will arise because silicate weathering from increased temperatures will by then have reduced levels of carbon dioxide to below those necessary for the main form of photosynthesis to take place). In 1 billion years' time the oceans will have evaporated and earth will begin losing some of its atmosphere; and by about 4 billion years' time complete thermal runaway will have taken place. Such life destroying thermal runaway will be later followed by the sun turning into a red giant in its final period of nuclear fusion about 7 billion years from now, during which the earth will be burnt to a crisp. The sun will then collapse and be extinguished (it will become a black dwarf).
Such extinction of life is a long way ahead viewed from our perspective (although a short time ahead in terms of the evolution of life on earth), and I entirely accept the argument that we do not want to hasten our demise, but as Private Fraser would have said, as a species "we're all doomed I tell ye"1.
Moving back to the present, it should also be noted that the earth has already experienced wide climate variation. We are at present in an ice age, that is a time when there are permanent ice sheets on both poles. To be more exact we are in an inter-glacial period of an ice age. There have been times (in fact the majority of time in the history of animal life on earth) when there have been no permanent ice caps. There have been other times when the ice sheets have nearly extended to the equator - the "snowball earth". This climate variation has been caused by variations in the luminosity of the sun (which as mentioned increases over time), the position of the earth and its orbit in relation to the sun and most particularly by the effect of the movements of the continents through plate tectonics on ocean currents.
Where we are
For the reasons mentioned above, in planning for the future we are looking at around the next 50 to 100 million years (a long time by human standards). After that, the bets are off from natural causes which we cannot avert. As I say, the question is whether human induced global warming (as opposed to long term solar induced global warming) matters when looking at that period. The problem we have is that we don't know for sure how serious those effects will be, but there certainly will be effects.
The two possible effects from increasing levels of carbon dioxide deposition in the atmosphere are:
The current furore about whether global temperatures have decreased over the past decade is really a side issue, since short-term climatic variation is quite normal: there was a warm period about a thousand years ago, and a cold period about 600 years ago. The fact of the matter is that viewed from a longer term perspective, releasing carbon dioxide into the atmosphere will cause long-term rises in global temperatures, some polar melting and some changes in weather patterns. The latter two are being observed now. (Although global temperatures may not have been rising over the past decade, polar temperatures certainly have.) The question is how much of this will be caused and to what extent we can take it as a global society.
To give complete balance, the interglacial period we are now in will also at some point end. This will likely cause some re-glaciation of northern areas, and thus also population relocations and possibly war. But the time scales for that are much less pressing than those caused by global warming through consumption of fossil fuels and deforestation.
The fact of the matter is that levels of carbon dioxide in the atmosphere are increasing and this will have an effect. Future generations will rightly curse us if we fail to deal with it now; and it is getting urgent. It would be a great shame if any unscientific activities by those at the Climate Research Unit that may have taken place because they "thought it was in a good cause" - and we won't know whether there were or not until the inquiry at present under way reports - serves to cloud this truth.
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1 Even if the human species escapes thermal runaway on the earth by establishing a human-friendly atmosphere on Mars and moving there, life on Mars would also be made unsustainable when the sun enters its red giant phase. Even if that is avoided by moving to another solar system, if one wants to be particularly morbid it should be noted that the second law of thermodynamics and the unavoidable increase in entropy over time give us a one-way ticket to nothingness, albeit in a very, very, very long time, even if other unpleasant events do not intervene before then such as the decay of fundamental particles, a big crunch or a big rip.
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.
Friday, 11 December 2009
Keeping confidences
Most readers will by now know that Jack Straw issued a certificate yesterday under section 53 of the Freedom of Information Act 2000 overriding a decision made by the Information Commissioner under Part 4 of that Act that the 1997 minutes of the Cabinet Ministerial Committee on Devolution to Scotland and Wales and the English Regions should be released in response to an information request under the 2000 Act. It was this Cabinet committee which had the task of establishing how the devolution commitments in the Labour party's 1997 election manifesto (which were in rather vague terms) should be implemented.
The retention of information
The Cabinet Office had refused the information request for these minutes on the grounds (a) that they fall within the exemption in sections 35 (information relating to the formulation of government policy) and 36 (information which would be likely to prejudice the maintenance of the convention of the collective responsibility of Ministers of the Crown or be likely to inhibit the free and frank provision of advice, or the free and frank exchange of views for the purposes of deliberation), and (b) that by virtue of this prejudice the public interest in maintaining the exemption outweighs the public interest in disclosing the information. Both limbs needed to be fulfilled for the minutes to be withheld, because the section 35 and 36 exemptions are not absolute exemptions. To withhold them the "balance of the public interest" test also has to be applied and met. The Cabinet Office thought it was, but the Information Commissioner disagreed.
Section 53 of the 2000 Act gives the relevant Minister of the Crown power to override decisions of the Information Commissioner or Information Tribunal on the public interest test where the decision relates to amongst others a government department, by issuing a certificate under that section. This power has only been used once before.
I have to say that, contrary to received opinion in the blogosphere, I have very little argument with Jack Straw's decision. In my view it would result in worse government, not better, if ministers or their advisers could not say what their real views were on a matter before the Cabinet because of fears that those views may subsequently come out within a period which is still politically active, particularly if those ministers are still in government, as some still are - including in particular Jack Straw. One would expect there to have been differences of opinion on how devolution was to be implemented to give effect to the manifesto commitment - on a point of such constitutional significance it would be disappointing if there were not. Nor do I have a problem with the government having the reserve power to override the Information Commissioner. At the end of the day I think matters of constitutional importance should be decided by our elected representatives, who can take their chances at the ballot box.
As one could predict, those with strong views about devolution are now bringing up their own theories about what the government is trying to hide. The SNP have issued a statement indicating that the minutes will show that there were some in the cabinet unpersuaded by the case for the granting of wide legislative powers under the devolution arrangements and that the government are trying to hide this. The Scotsman newspaper in an editorial seems offended that the Cabinet may have discussed knock-on effects such as whether it should result in review of the Barnett formula and whether Scottish over-representation at Westminster should be reduced to bring it to the level of representation applying in England. The former has not yet happened, the second in the end did. (The Scotsman editorial writer also appears to think that the Information Tribunal can override the section 53 certificate - it can't.)
As I say, there ought to have been and quite probably was robust discussion about the extent to which devolution was to go and about its knock-on effects elsewhere, during the course of which those in the Donald Dewar camp (probably including Gordon Brown), who wanted a wide range of powers to be devolved including legislative competence, won the argument. As I have commented before in this blog, many seem to underestimate the amount of autonomy given by the Scotland Act 1998 to the Scottish government and Parliament, including legislative and executive autonomy in the fields of health (there no longer is a "National Health Service" in the UK sense), education, housing, local government, transport (other than air transport) and most of the justice system. Unlike the proposals of a decade earlier, the 1998 Act works on the principle that everything is devolved unless it is explicitly stated in the Act to be a reserved matter. It did so so successfully, that 80% of the business as Westminster now relates to England and Wales, or England only.
Those who want a Parliament for England have put forward the opposite hypothesis, that what the government is trying to hide is its indifference to the unfairness for those in England of the current devolution arrangements, and/or that in Labour's own self-interest it never seriously intended meaningful devolution for England. The latter may well be true because as I have previously commented the regional devolution proposals brought forward by John Prescott were weak in the extreme, to the point of showing bad faith. However I doubt very much that the government were in 1997 indifferent to unfairness to people in England - unfairness is not the business of those having to face an electorate at 5 yearly intervals. Probably they just felt they could "face it out" in the short term and that something would turn up in the medium to long term.
The future
So, although withholding the Cabinet minutes may avoid annoying people in England and Scotland who are sensitive to annoyance about devolution in more or less equal measures, the decision seems to me to be right insofar as it relates to Cabinet government and collective responsibility.
An interesting point arises about the future however. Whether or not the Tories end up with a majority in the next Parliament, and I still think they will, they are almost certain to form the largest party and in the event of a hung Parliament either form a minority administration or form a pact with the Liberals. If in a year's time another information request arrives, one can predict that the Information Commissioner will remain of his present view.
Will the then Minister of Justice want to renew the section 53 certificate, or would he or she quite like Labour to be discomforted by the Information Commissioner? And how does this relate to the convention that a government does not get to see the previous government's confidential cabinet papers? The then Minister of Justice (or however else he/she chooses to style the name of the office) will have to see the minutes to reach a view on whether to renew the certificate. A tricky issue - one which quite probably an incoming Tory government will choose to let lie. After all, it would have plenty of other things to worry about. In any event, the present government announced in the summer that it was reducing the then-applicable 30 year period for release of Cabinet papers as public records to 20 years, and many on the Tory side thought this was a weak attempt to relight feelings of antipathy concerning Margaret Thatcher in advance of the pending election. The Tories could just wait another 8 years and allow Labour to embarrass itself with its own policy (in good time for the election after next).
The retention of information
The Cabinet Office had refused the information request for these minutes on the grounds (a) that they fall within the exemption in sections 35 (information relating to the formulation of government policy) and 36 (information which would be likely to prejudice the maintenance of the convention of the collective responsibility of Ministers of the Crown or be likely to inhibit the free and frank provision of advice, or the free and frank exchange of views for the purposes of deliberation), and (b) that by virtue of this prejudice the public interest in maintaining the exemption outweighs the public interest in disclosing the information. Both limbs needed to be fulfilled for the minutes to be withheld, because the section 35 and 36 exemptions are not absolute exemptions. To withhold them the "balance of the public interest" test also has to be applied and met. The Cabinet Office thought it was, but the Information Commissioner disagreed.
Section 53 of the 2000 Act gives the relevant Minister of the Crown power to override decisions of the Information Commissioner or Information Tribunal on the public interest test where the decision relates to amongst others a government department, by issuing a certificate under that section. This power has only been used once before.
I have to say that, contrary to received opinion in the blogosphere, I have very little argument with Jack Straw's decision. In my view it would result in worse government, not better, if ministers or their advisers could not say what their real views were on a matter before the Cabinet because of fears that those views may subsequently come out within a period which is still politically active, particularly if those ministers are still in government, as some still are - including in particular Jack Straw. One would expect there to have been differences of opinion on how devolution was to be implemented to give effect to the manifesto commitment - on a point of such constitutional significance it would be disappointing if there were not. Nor do I have a problem with the government having the reserve power to override the Information Commissioner. At the end of the day I think matters of constitutional importance should be decided by our elected representatives, who can take their chances at the ballot box.
As one could predict, those with strong views about devolution are now bringing up their own theories about what the government is trying to hide. The SNP have issued a statement indicating that the minutes will show that there were some in the cabinet unpersuaded by the case for the granting of wide legislative powers under the devolution arrangements and that the government are trying to hide this. The Scotsman newspaper in an editorial seems offended that the Cabinet may have discussed knock-on effects such as whether it should result in review of the Barnett formula and whether Scottish over-representation at Westminster should be reduced to bring it to the level of representation applying in England. The former has not yet happened, the second in the end did. (The Scotsman editorial writer also appears to think that the Information Tribunal can override the section 53 certificate - it can't.)
As I say, there ought to have been and quite probably was robust discussion about the extent to which devolution was to go and about its knock-on effects elsewhere, during the course of which those in the Donald Dewar camp (probably including Gordon Brown), who wanted a wide range of powers to be devolved including legislative competence, won the argument. As I have commented before in this blog, many seem to underestimate the amount of autonomy given by the Scotland Act 1998 to the Scottish government and Parliament, including legislative and executive autonomy in the fields of health (there no longer is a "National Health Service" in the UK sense), education, housing, local government, transport (other than air transport) and most of the justice system. Unlike the proposals of a decade earlier, the 1998 Act works on the principle that everything is devolved unless it is explicitly stated in the Act to be a reserved matter. It did so so successfully, that 80% of the business as Westminster now relates to England and Wales, or England only.
Those who want a Parliament for England have put forward the opposite hypothesis, that what the government is trying to hide is its indifference to the unfairness for those in England of the current devolution arrangements, and/or that in Labour's own self-interest it never seriously intended meaningful devolution for England. The latter may well be true because as I have previously commented the regional devolution proposals brought forward by John Prescott were weak in the extreme, to the point of showing bad faith. However I doubt very much that the government were in 1997 indifferent to unfairness to people in England - unfairness is not the business of those having to face an electorate at 5 yearly intervals. Probably they just felt they could "face it out" in the short term and that something would turn up in the medium to long term.
The future
So, although withholding the Cabinet minutes may avoid annoying people in England and Scotland who are sensitive to annoyance about devolution in more or less equal measures, the decision seems to me to be right insofar as it relates to Cabinet government and collective responsibility.
An interesting point arises about the future however. Whether or not the Tories end up with a majority in the next Parliament, and I still think they will, they are almost certain to form the largest party and in the event of a hung Parliament either form a minority administration or form a pact with the Liberals. If in a year's time another information request arrives, one can predict that the Information Commissioner will remain of his present view.
Will the then Minister of Justice want to renew the section 53 certificate, or would he or she quite like Labour to be discomforted by the Information Commissioner? And how does this relate to the convention that a government does not get to see the previous government's confidential cabinet papers? The then Minister of Justice (or however else he/she chooses to style the name of the office) will have to see the minutes to reach a view on whether to renew the certificate. A tricky issue - one which quite probably an incoming Tory government will choose to let lie. After all, it would have plenty of other things to worry about. In any event, the present government announced in the summer that it was reducing the then-applicable 30 year period for release of Cabinet papers as public records to 20 years, and many on the Tory side thought this was a weak attempt to relight feelings of antipathy concerning Margaret Thatcher in advance of the pending election. The Tories could just wait another 8 years and allow Labour to embarrass itself with its own policy (in good time for the election after next).
Saturday, 5 December 2009
Digital Economy Bill
The Digital Economy Bill was introduced into the House of Lords by Lord Mandleson shortly after the Queen's Speech and received its Second Reading last week. Clauses 4 to 17 of this Bill give effect to the so-called "three strikes and out" proposals, under which repeated downloading of material in breach of copyright will cause an internet subscriber to be disconnected from the internet or otherwise restricted in some way (what the Bill refers to as "technical measures").
Breach of copyright is breach of copyright, and although many think that attempting to prevent unlawful sharing of copyrighted material over the internet is a fruitless exercise which is bound to fail in the end, a few countries have been persuaded by the international media corporations (mainly those making and selling CDs and DVDs) to attempt legislation in the area. These include France and now the United Kingdom, but this approach is not yet widespread. To that extent the UK and France will be something of a test bed.
These proposals have to be viewed against the background that for many access to the internet has become essential to leading a normal life - a point the government itself made when promulgating its proposals for broadband to be made available compulsorily over the whole of the UK, including rural areas, to be paid for by current telephone subscribers. For many, probably most, it has become as important to everyday life as did the provision of electricity supplies in the last century.
One feature of the Bill is that practically everything of substance, including the procedures for giving warnings (and indeed even the number of warnings - there is no mention in the Bill of "three strikes") is to be fleshed out in codes of practice. The Bill requires the provisions of the codes to be objectively justifiable, non-discriminatory, proportionate and transparent, and to provide rights of appeal ("subscriber appeals") to an independent technical panel and thence (if a subscriber has been cut off or had internet access restricted) on grounds to be specified in the code to an Appeals Tribunal, but this is a poor substitute for spelling out more of the detail and the subscriber protections in the Bill itself, particularly as these codes will only be subject to the most limited Parliamentary examination - some require approval by statutory instrument subject to annulment procedure, which is cursory enough given that Parliamentary time is rarely given to annulment motions, and some are not even subject to that. The Data Protection Act 1998 for example sets out considerably more detail on the information which is protected by it, and on enforcement and appeals.
There is a good analysis of the Bill produced by the UK's Open Rights Group so I will not go into more detail about it here: those interested can read that article. I should say though that I do not agree with the Group's contention that the appeal procedures are defective because it would not be open to an internet subscriber to appeal a proposal that he or she should be cut off on the grounds that what was done was not in fact in breach of copyright. The Group reason that the "copyright infringement disputes" subject to appeal comprise a dispute which "relates to an act or omission in relation to a technical obligation or the technical obligations code" and that this does not go to whether there was a breach of copyright in the first place. However it seems to me that what would be appealed would be the cutting-off of the internet supply or the placing of restrictions on the internet supply to the subscriber - that would be the "act in relation to ... the technical obligations code" and that would allow the subscriber to raise the issue of whether the rights of the copyright owner have in fact been infringed, and not just whether in fact file sharing took place. The Bill provides for two levels of appeals. For cases only involving the "initial obligations code" (mainly involving preparation of copyright infringement lists) there will be no second right of appeal from the technical panel to the Appeals Tribunal, but there will be once the possibility of being cut off or having internet access restrictions imposed comes into play through the "technical obligations code".
Nonetheless I think the Bill is subject to criticism on the grounds that these essential protections are left to the codes rather than set out in the Bill itself.
Leaving aside the detail set out in the Open Rights Group analysis, there are four other overview points I would make about the Bill. First we (the internet subscribers) are going to pay for this. The Bill provides for copyright owners wanting to invoke the procedures to contribute to the costs of internet service providers in operating the code, but these are not required by the Bill to be pound for pound. In addition, internet service providers as well as copyright owners can be required to contribute to OFCOM's costs in drawing up the codes, and in preparing reports, which it would have to do both quarterly and annually, about copyright infringement by internet subscribers. This is a form of taxation, to be met in the end by internet subscribers, rather nicely described as a "sharing of costs".
Secondly, although the Bill enables (but does not require) the code to compel a copyright owner to enter into arrangements with an internet service provider regarding the number of copyright infringements the owner can allege against the provider's subscribers within a particular period, there are no sanctions for repeated incorrect or inaccurate claims of infringement leading subscribers to be cut off when they should not be, or to spend the time and effort in appealing when they should not have to do so. In particular, no protection is offered for subscribers against those alleging infringement other than that of appeal. The omens are not good on this: a number of claims of illegal file sharing have been made by media company representatives against people in the United States under different (US federal) legislation where the evidence for this has been shown to be simply wrong or technically deficient, but I also make the more general observation that human nature is such that if overly broad powers are given they will in the end be abused. Even the police are prone to that, as witness the improper use they have been making of sections 44 and 58 of the Terrorism Act 2000 to prevent people taking photographs in public places in a way we would not have thought possible in this ostensibly free country only three or four years ago. If the police feel able to do this, what about distant media companies with zealous middle managers wanting to meet their quota for catching "those criminal file sharing commies", companies which probably aren't even in a UK legal jurisdiction to begin with.
The potential for abuse is further widened by the fact that the Bill provides that the codes may provide that "the number and nature of copyright infringement reports relating to the subscriber may be taken into account for the purposes of any technical measures" (that is, a cutting-off), and that there can be a minimum threshold number of reports before an internet service provider is required to take action as well as a maximum number of infringements that a copyright owner can make. These "copyright infringement reports" are the copyright owner's allegations of infringement, not proven infringements. And any warning to a subscriber sent by virtue of an infringement report does not even need to be sent by post - according to proposed new section 124A(7) of the Communications Act 2003 as inserted by clause 4 of the Bill it would be sufficient if it is sent by e-mail, even though e-mail is known not to be a reliable means of delivery. Within the first year or two of a scheme of this kind coming into force, we will be having our first horror stories of people being cut off the internet where they should not be as a result of the poor practices of those operating the scheme and in particular of the media companies, poor practices which will quite probably be strenuously denied until someone does the public service of leaking some internal documents demonstrating it. I do not think the Bill as yet requires the codes to be robust enough to deal with this.
Thirdly, the cutting-off of a subscriber, or other technical measures, are not necessarily the end of the matter. The internet service provider could be required on application to a court to reveal the name of a subscriber equating to a particular internet address (the numerical internet address given to a computer or router when connecting to the provider's internet service). I do not have a problem with that provided that data protection safeguards are met (and they should be if application has to be made to a court), but it demonstrates that there are other remedies available to an infringed copyright owner apart from cutting a subscriber off. To the credit of the Bill, it does provide in clause 5 a "subscriber identity firewall" which requires an order of the court before actual names can be revealed.
Fourthly, clause 17 of the Bill enables amendment of Parts 1 and 7 of the Copyright, Designs and Patents Act 1988 by order made by statutory instrument subject to affirmative procedure just on the grounds that it is "for the purpose of preventing or reducing the infringement of copyright by means of the internet, if it appears to the Secretary of State appropriate to do so having regard to technological developments that have occurred or are likely to occur". Apart from the fact that this is a grossly excessive power to confer - to change the fundamentals of copyright law as set out in Part 1 of the 1988 Act - it is difficult to see how this could be necessary to give effect to the intentions of clauses 4 to 16 of the Bill. The government's explanation for this extraordinary provision at Second Reading was completely unconvincing and it would be very alarming if this clause were to survive into the Bill as enacted. Let's hope it does not do so.
Breach of copyright is breach of copyright, and although many think that attempting to prevent unlawful sharing of copyrighted material over the internet is a fruitless exercise which is bound to fail in the end, a few countries have been persuaded by the international media corporations (mainly those making and selling CDs and DVDs) to attempt legislation in the area. These include France and now the United Kingdom, but this approach is not yet widespread. To that extent the UK and France will be something of a test bed.
These proposals have to be viewed against the background that for many access to the internet has become essential to leading a normal life - a point the government itself made when promulgating its proposals for broadband to be made available compulsorily over the whole of the UK, including rural areas, to be paid for by current telephone subscribers. For many, probably most, it has become as important to everyday life as did the provision of electricity supplies in the last century.
One feature of the Bill is that practically everything of substance, including the procedures for giving warnings (and indeed even the number of warnings - there is no mention in the Bill of "three strikes") is to be fleshed out in codes of practice. The Bill requires the provisions of the codes to be objectively justifiable, non-discriminatory, proportionate and transparent, and to provide rights of appeal ("subscriber appeals") to an independent technical panel and thence (if a subscriber has been cut off or had internet access restricted) on grounds to be specified in the code to an Appeals Tribunal, but this is a poor substitute for spelling out more of the detail and the subscriber protections in the Bill itself, particularly as these codes will only be subject to the most limited Parliamentary examination - some require approval by statutory instrument subject to annulment procedure, which is cursory enough given that Parliamentary time is rarely given to annulment motions, and some are not even subject to that. The Data Protection Act 1998 for example sets out considerably more detail on the information which is protected by it, and on enforcement and appeals.
There is a good analysis of the Bill produced by the UK's Open Rights Group so I will not go into more detail about it here: those interested can read that article. I should say though that I do not agree with the Group's contention that the appeal procedures are defective because it would not be open to an internet subscriber to appeal a proposal that he or she should be cut off on the grounds that what was done was not in fact in breach of copyright. The Group reason that the "copyright infringement disputes" subject to appeal comprise a dispute which "relates to an act or omission in relation to a technical obligation or the technical obligations code" and that this does not go to whether there was a breach of copyright in the first place. However it seems to me that what would be appealed would be the cutting-off of the internet supply or the placing of restrictions on the internet supply to the subscriber - that would be the "act in relation to ... the technical obligations code" and that would allow the subscriber to raise the issue of whether the rights of the copyright owner have in fact been infringed, and not just whether in fact file sharing took place. The Bill provides for two levels of appeals. For cases only involving the "initial obligations code" (mainly involving preparation of copyright infringement lists) there will be no second right of appeal from the technical panel to the Appeals Tribunal, but there will be once the possibility of being cut off or having internet access restrictions imposed comes into play through the "technical obligations code".
Nonetheless I think the Bill is subject to criticism on the grounds that these essential protections are left to the codes rather than set out in the Bill itself.
Leaving aside the detail set out in the Open Rights Group analysis, there are four other overview points I would make about the Bill. First we (the internet subscribers) are going to pay for this. The Bill provides for copyright owners wanting to invoke the procedures to contribute to the costs of internet service providers in operating the code, but these are not required by the Bill to be pound for pound. In addition, internet service providers as well as copyright owners can be required to contribute to OFCOM's costs in drawing up the codes, and in preparing reports, which it would have to do both quarterly and annually, about copyright infringement by internet subscribers. This is a form of taxation, to be met in the end by internet subscribers, rather nicely described as a "sharing of costs".
Secondly, although the Bill enables (but does not require) the code to compel a copyright owner to enter into arrangements with an internet service provider regarding the number of copyright infringements the owner can allege against the provider's subscribers within a particular period, there are no sanctions for repeated incorrect or inaccurate claims of infringement leading subscribers to be cut off when they should not be, or to spend the time and effort in appealing when they should not have to do so. In particular, no protection is offered for subscribers against those alleging infringement other than that of appeal. The omens are not good on this: a number of claims of illegal file sharing have been made by media company representatives against people in the United States under different (US federal) legislation where the evidence for this has been shown to be simply wrong or technically deficient, but I also make the more general observation that human nature is such that if overly broad powers are given they will in the end be abused. Even the police are prone to that, as witness the improper use they have been making of sections 44 and 58 of the Terrorism Act 2000 to prevent people taking photographs in public places in a way we would not have thought possible in this ostensibly free country only three or four years ago. If the police feel able to do this, what about distant media companies with zealous middle managers wanting to meet their quota for catching "those criminal file sharing commies", companies which probably aren't even in a UK legal jurisdiction to begin with.
The potential for abuse is further widened by the fact that the Bill provides that the codes may provide that "the number and nature of copyright infringement reports relating to the subscriber may be taken into account for the purposes of any technical measures" (that is, a cutting-off), and that there can be a minimum threshold number of reports before an internet service provider is required to take action as well as a maximum number of infringements that a copyright owner can make. These "copyright infringement reports" are the copyright owner's allegations of infringement, not proven infringements. And any warning to a subscriber sent by virtue of an infringement report does not even need to be sent by post - according to proposed new section 124A(7) of the Communications Act 2003 as inserted by clause 4 of the Bill it would be sufficient if it is sent by e-mail, even though e-mail is known not to be a reliable means of delivery. Within the first year or two of a scheme of this kind coming into force, we will be having our first horror stories of people being cut off the internet where they should not be as a result of the poor practices of those operating the scheme and in particular of the media companies, poor practices which will quite probably be strenuously denied until someone does the public service of leaking some internal documents demonstrating it. I do not think the Bill as yet requires the codes to be robust enough to deal with this.
Thirdly, the cutting-off of a subscriber, or other technical measures, are not necessarily the end of the matter. The internet service provider could be required on application to a court to reveal the name of a subscriber equating to a particular internet address (the numerical internet address given to a computer or router when connecting to the provider's internet service). I do not have a problem with that provided that data protection safeguards are met (and they should be if application has to be made to a court), but it demonstrates that there are other remedies available to an infringed copyright owner apart from cutting a subscriber off. To the credit of the Bill, it does provide in clause 5 a "subscriber identity firewall" which requires an order of the court before actual names can be revealed.
Fourthly, clause 17 of the Bill enables amendment of Parts 1 and 7 of the Copyright, Designs and Patents Act 1988 by order made by statutory instrument subject to affirmative procedure just on the grounds that it is "for the purpose of preventing or reducing the infringement of copyright by means of the internet, if it appears to the Secretary of State appropriate to do so having regard to technological developments that have occurred or are likely to occur". Apart from the fact that this is a grossly excessive power to confer - to change the fundamentals of copyright law as set out in Part 1 of the 1988 Act - it is difficult to see how this could be necessary to give effect to the intentions of clauses 4 to 16 of the Bill. The government's explanation for this extraordinary provision at Second Reading was completely unconvincing and it would be very alarming if this clause were to survive into the Bill as enacted. Let's hope it does not do so.
Tuesday, 1 December 2009
The long game
The Scottish government published its white paper on proposals for a referendum on Scottish independence yesterday. Since its publication, most of the political commentariat appear to think that Alex Salmond is on the run, with the recent Labour by-election win in Glasgow (albeit in one of their safest seats in the UK), and with polls showing a small decrease in the amount of enthusiasm in Scotland for independence.
I think this is a misjudgement. Alex Salmond is in this for the long game, and it is significant that the white paper yesterday proposed that only three of the four main options available for the future should be put to the Scottish electorate in a referendum. These three options are:
He probably realises that he is not going to be able to get a Bill with a referendum offering these three options through the Scottish Parliament as at present constituted, but he is no doubt looking beyond that to the Parliament as constituted after the next Scottish elections. No doubt he would be willing, if he had to, to reach "devolution max" and subsequently independence after a period of "Calmanisation", but the clear preference coming from the white paper is to avoid that detour and go straight to "devolution max" where he would be well placed to create severe difficulties for unionist government within the UK leading ultimately to independence.
Devolution max
This option involves remaining within the UK but having control of a wide range of things which are currently reserved matters. People in Scotland would continue to have British nationality and to participate in UK affairs within the realms of defence and foreign affairs, to the budget for which they would presumably contribute, together with what the white papers refers to as "macroeconomic policy" and possibly some social protection and pensions, but aside from that they would set all of their own social priorities and most particularly determine most of their own taxation. On this the opaqueness of the white paper is most marked - one of the main levers of macroeconomic policy for the UK government is taxation. If that is taken away through devolution, the main macroeconomic lever left is the fixing of the Bank of England repo rate (sometimes called the bank rate); but this could not be devolved anyway without Scotland adopting its own currency, or acceding to the Euro (in which case the Scottish government would be subject to the rate fixed by the European Central Bank).
Let us then carry out a thought experiment with a system of "devolution max" of this kind in force which goes down the road that the SNP are charting. Were the Scottish government to become financially autonomous, responsible for raising its own taxation to meet its own expenditure, the UK parliament would only set taxation for the rump of the UK - England, Wales and Northern Ireland. It seems inevitable that members of the UK parliament elected for Scottish constituencies would no longer be able to vote in connection with the fixing of rates of taxes such as income tax and corporation tax applying outside Scotland, to which their constituents would not be subject: were they to do so, it would fly against the constitutional links between taxation and representation (in fact as I have mentioned even the much more modest Calman proposals raise issues concerning this constitutional link), and be grossly unfair to people in the remainder of the UK.
However, if there were to be a UK government dependent on its Scottish members for its majority, we could then be left with a UK government which could only wield a majority on matters of defence and foreign affairs but not on taxation. It could therefore be left unable to progress its policies on anything. It would probably be forced to march its Scottish members through the lobbies to force through taxation measures, and policies in all areas except defence and foreign affairs, which could not apply in Scotland. People in the remainder of the UK, and particularly in England, would probably not stand for it. Constitutional mayhem would result: and the pressure points leading to break-up could well come from England rather than Scotland.
The unionist parties
It is probably for this reason that only the Scottish Liberal Democrats have come out in favour of "devolution max" - or at any rate, Tavish Scott their leader has. Such is the chaotic state of Liberal Democrat policy making that, akin to the debacle over Vince Cable's mansion tax, no attempt has been made by them to address the wider issue of how the remainder of the UK could be governed in a way which would actually work in the event of "devolution max". Thankfully we do not need to spend too much time wringing our hands over this at the UK level as the Liberal Democrats are never going to be elected to government at Westminster to give effect to their policy. However, if they hold the balance of power in the Scottish parliament after the next Scottish elections they may turn out to be the SNP's version of the Bolsheviks' "useful idiots" in terms of assisting in passing a referendum Bill in the Scottish parliament. This surely must be one of Alex Salmond's hopes.
How the Tories would take this on depends on their leader at the time (which might not be David Cameron if the party fails to secure a working majority at the next election). David Cameron is wedded to the union but support for the union amongst the Tories cannot necessarily be assured in the future. A different leader might be open to the siren calls of Scottish fiscal autonomy notwithstanding the constitutional instabilities this would create. The post-Thatcher era has left the Tories as, in effect, an English party, so in that sense they do not have a great deal to lose.
The Labour party have the most at risk from "devolution max". They tread a delicate path requiring them to keep their Labour bases in Scotland and to a lesser extent Wales adequately rewarded on the one hand, and not being seen as an anti-English party on the other hand. "Devolution max" would mean they could stop worrying about dissatisfaction with the Barnett formula, but they show no signs at all of thinking about how to resolve the present constitutional anomalies arising from asymmetrical devolution, which would not leave them well prepared if faced with a situation where they had to deal with the problem of a successful "devolution max" referendum. Electoral dynamics also mean that it is only they (either with a small UK majority on their own part or in a Lib/Lab pact) who could end up in government faced with the constitutional dilemma to which I have referred, and one fears that their first and maybe last reaction would be to put their heads in the sand.
In consequence, neither the Labour party nor (in the short term) the Tories are going to go down the "devolution max" road. Were they to be manoeuvred by Alex Salmond into it, say via the Liberal Democrats in the Scottish parliament, I would not give the union more than a few years to survive. For Alex Salmond, job done.
I think this is a misjudgement. Alex Salmond is in this for the long game, and it is significant that the white paper yesterday proposed that only three of the four main options available for the future should be put to the Scottish electorate in a referendum. These three options are:
- no change
- "devolution max" within the UK (what the white paper refers to as "Full Devolution")
- independence from the UK
He probably realises that he is not going to be able to get a Bill with a referendum offering these three options through the Scottish Parliament as at present constituted, but he is no doubt looking beyond that to the Parliament as constituted after the next Scottish elections. No doubt he would be willing, if he had to, to reach "devolution max" and subsequently independence after a period of "Calmanisation", but the clear preference coming from the white paper is to avoid that detour and go straight to "devolution max" where he would be well placed to create severe difficulties for unionist government within the UK leading ultimately to independence.
Devolution max
This option involves remaining within the UK but having control of a wide range of things which are currently reserved matters. People in Scotland would continue to have British nationality and to participate in UK affairs within the realms of defence and foreign affairs, to the budget for which they would presumably contribute, together with what the white papers refers to as "macroeconomic policy" and possibly some social protection and pensions, but aside from that they would set all of their own social priorities and most particularly determine most of their own taxation. On this the opaqueness of the white paper is most marked - one of the main levers of macroeconomic policy for the UK government is taxation. If that is taken away through devolution, the main macroeconomic lever left is the fixing of the Bank of England repo rate (sometimes called the bank rate); but this could not be devolved anyway without Scotland adopting its own currency, or acceding to the Euro (in which case the Scottish government would be subject to the rate fixed by the European Central Bank).
Let us then carry out a thought experiment with a system of "devolution max" of this kind in force which goes down the road that the SNP are charting. Were the Scottish government to become financially autonomous, responsible for raising its own taxation to meet its own expenditure, the UK parliament would only set taxation for the rump of the UK - England, Wales and Northern Ireland. It seems inevitable that members of the UK parliament elected for Scottish constituencies would no longer be able to vote in connection with the fixing of rates of taxes such as income tax and corporation tax applying outside Scotland, to which their constituents would not be subject: were they to do so, it would fly against the constitutional links between taxation and representation (in fact as I have mentioned even the much more modest Calman proposals raise issues concerning this constitutional link), and be grossly unfair to people in the remainder of the UK.
However, if there were to be a UK government dependent on its Scottish members for its majority, we could then be left with a UK government which could only wield a majority on matters of defence and foreign affairs but not on taxation. It could therefore be left unable to progress its policies on anything. It would probably be forced to march its Scottish members through the lobbies to force through taxation measures, and policies in all areas except defence and foreign affairs, which could not apply in Scotland. People in the remainder of the UK, and particularly in England, would probably not stand for it. Constitutional mayhem would result: and the pressure points leading to break-up could well come from England rather than Scotland.
The unionist parties
It is probably for this reason that only the Scottish Liberal Democrats have come out in favour of "devolution max" - or at any rate, Tavish Scott their leader has. Such is the chaotic state of Liberal Democrat policy making that, akin to the debacle over Vince Cable's mansion tax, no attempt has been made by them to address the wider issue of how the remainder of the UK could be governed in a way which would actually work in the event of "devolution max". Thankfully we do not need to spend too much time wringing our hands over this at the UK level as the Liberal Democrats are never going to be elected to government at Westminster to give effect to their policy. However, if they hold the balance of power in the Scottish parliament after the next Scottish elections they may turn out to be the SNP's version of the Bolsheviks' "useful idiots" in terms of assisting in passing a referendum Bill in the Scottish parliament. This surely must be one of Alex Salmond's hopes.
How the Tories would take this on depends on their leader at the time (which might not be David Cameron if the party fails to secure a working majority at the next election). David Cameron is wedded to the union but support for the union amongst the Tories cannot necessarily be assured in the future. A different leader might be open to the siren calls of Scottish fiscal autonomy notwithstanding the constitutional instabilities this would create. The post-Thatcher era has left the Tories as, in effect, an English party, so in that sense they do not have a great deal to lose.
The Labour party have the most at risk from "devolution max". They tread a delicate path requiring them to keep their Labour bases in Scotland and to a lesser extent Wales adequately rewarded on the one hand, and not being seen as an anti-English party on the other hand. "Devolution max" would mean they could stop worrying about dissatisfaction with the Barnett formula, but they show no signs at all of thinking about how to resolve the present constitutional anomalies arising from asymmetrical devolution, which would not leave them well prepared if faced with a situation where they had to deal with the problem of a successful "devolution max" referendum. Electoral dynamics also mean that it is only they (either with a small UK majority on their own part or in a Lib/Lab pact) who could end up in government faced with the constitutional dilemma to which I have referred, and one fears that their first and maybe last reaction would be to put their heads in the sand.
In consequence, neither the Labour party nor (in the short term) the Tories are going to go down the "devolution max" road. Were they to be manoeuvred by Alex Salmond into it, say via the Liberal Democrats in the Scottish parliament, I would not give the union more than a few years to survive. For Alex Salmond, job done.
Monday, 2 November 2009
More constitutional introspection
Scottish nationalist (with a small 'n') Gerry Hassan has another interesting article on England in his blog, and it seems to me to be one of the best analyses of the position that I have seen in a while. Whether he belongs to the party which would require "nationalist" to have a capital 'n' I don't know, but sometimes things are best done looking in from the outside, and this is a case in point.
I think the article speaks for itself but I would just make two points on it. First, I don't think that regional government within England is necessarily as he supposes a dead duck from the point of view of whether people in England would be willing to vote in favour of it (although it may well be a dead duck because of our political class at Westminster). The Prescott regional proposals offered virtually no meaningful devolution at all. A few highways functions would have moved from the government offices for the regions, but in the main what few functions the regional assemblies would have had (mainly transport and planning functions) came by lifting them from the county councils. It was pretend-devolution, and its overwhelming rejection in the North East region in 2004 resulted largely from the fact that local people saw through it. The other problem with the current regions is that they are formed from lines drawn on a map by civil servants with a view to making the numbers work out, rather than to reflect local identities or aspirations.
I may be unduly influenced by the fact that genuine regional government is my favoured solution (from that point of view I declare an interest), but I think that if a regional parliament and government were offered to three regions in England, namely the North, the Midlands and the South, with people having an opportunity to indicate which region they think they are in, and with powers at least as great as those available to the Welsh Assembly and government, I think there could well be support amongst the public at large. The sticking point in all this is the politicians. Try as they might (and they try very little), they are simply unwilling to give up power. Career Westminster politicians and Whitehall civil servants are just not willing to divest themselves of control over health, education, the justice system, local government, planning and the like in England (all devolved in Scotland and, apart from the justice system, in Wales and Northern Ireland also), and so leave themselves only with macro economics, immigration, the benefits system and foreign affairs as toys to play with.
Secondly, he suggests one tipping point for sentiment in England may arise if the next general election were to result in a hung Parliament with a UK government (say a Lib-Lab coalition) not formed of the party having a majority in England (the Tories), which would result in most contentious laws in England on devolved matters in effect being passed by virtue only of the votes of members outside England. I don't think in practice this is going to happen. I think by far the most likely outcome is that the Tories will have a working majority and will pass laws (possibly in conjunction with legislation to give effect to the Calman Commission recommendations) implementing Ken Clark's proposed solution to the West Lothian question.
I think the tipping point will happen further down the line. Let's say in an election in 5 or 10 years' time, we have a small Labour majority, or Lib-Lab coalition, forming a UK government but with a Tory majority in England. The temptation for a latter-day Gordon Brown to dismantle any provision for those in England introduced earlier by the Tories in order to get through his or her legislative programme so as to avoid having to reach compromises on devolved matters with a Tory opposition having a majority in England may prove irresistible. Whether the UK constitution could survive this strain on it is a matter for speculation; but I have little doubt that someone like Ed Balls would not let that dissuade him. Power easily goes to people's heads, and to some more than others.
Some may think I am unduly pessimistic about our political class. I hope that is true, but I doubt it (I remain even more shocked by the goings-on in 10 Downing Street revealed by the Damian McBride affair than I am by the Commons' expenses scandal, which has been well known for some time). Politicians are just like everyone else, with the same vices and virtues. An unwillingness to give up power which has been hard gained is one commonly shared human vice. For that reason I doubt that much will come of ventures such as Power 2010, chaired by Helena Kennedy who is a working peer in the House of Lords taking the Labour whip.
If one has to be a realist and therefore must abandon ideas of meaningful regional devolution in England, as I suppose one must do (and no regional devolution is certainly better than pretend regional devolution), we are therefore left with Gerry Hassan's thesis of there being a need to forge some form of English identity with progressive values. Whatever the outcome of all this, I suspect that in 20 or 30 years' time, Vernon Bogdanor's defence of the status quo will be looked on as laughable.
I think the article speaks for itself but I would just make two points on it. First, I don't think that regional government within England is necessarily as he supposes a dead duck from the point of view of whether people in England would be willing to vote in favour of it (although it may well be a dead duck because of our political class at Westminster). The Prescott regional proposals offered virtually no meaningful devolution at all. A few highways functions would have moved from the government offices for the regions, but in the main what few functions the regional assemblies would have had (mainly transport and planning functions) came by lifting them from the county councils. It was pretend-devolution, and its overwhelming rejection in the North East region in 2004 resulted largely from the fact that local people saw through it. The other problem with the current regions is that they are formed from lines drawn on a map by civil servants with a view to making the numbers work out, rather than to reflect local identities or aspirations.
I may be unduly influenced by the fact that genuine regional government is my favoured solution (from that point of view I declare an interest), but I think that if a regional parliament and government were offered to three regions in England, namely the North, the Midlands and the South, with people having an opportunity to indicate which region they think they are in, and with powers at least as great as those available to the Welsh Assembly and government, I think there could well be support amongst the public at large. The sticking point in all this is the politicians. Try as they might (and they try very little), they are simply unwilling to give up power. Career Westminster politicians and Whitehall civil servants are just not willing to divest themselves of control over health, education, the justice system, local government, planning and the like in England (all devolved in Scotland and, apart from the justice system, in Wales and Northern Ireland also), and so leave themselves only with macro economics, immigration, the benefits system and foreign affairs as toys to play with.
Secondly, he suggests one tipping point for sentiment in England may arise if the next general election were to result in a hung Parliament with a UK government (say a Lib-Lab coalition) not formed of the party having a majority in England (the Tories), which would result in most contentious laws in England on devolved matters in effect being passed by virtue only of the votes of members outside England. I don't think in practice this is going to happen. I think by far the most likely outcome is that the Tories will have a working majority and will pass laws (possibly in conjunction with legislation to give effect to the Calman Commission recommendations) implementing Ken Clark's proposed solution to the West Lothian question.
I think the tipping point will happen further down the line. Let's say in an election in 5 or 10 years' time, we have a small Labour majority, or Lib-Lab coalition, forming a UK government but with a Tory majority in England. The temptation for a latter-day Gordon Brown to dismantle any provision for those in England introduced earlier by the Tories in order to get through his or her legislative programme so as to avoid having to reach compromises on devolved matters with a Tory opposition having a majority in England may prove irresistible. Whether the UK constitution could survive this strain on it is a matter for speculation; but I have little doubt that someone like Ed Balls would not let that dissuade him. Power easily goes to people's heads, and to some more than others.
Some may think I am unduly pessimistic about our political class. I hope that is true, but I doubt it (I remain even more shocked by the goings-on in 10 Downing Street revealed by the Damian McBride affair than I am by the Commons' expenses scandal, which has been well known for some time). Politicians are just like everyone else, with the same vices and virtues. An unwillingness to give up power which has been hard gained is one commonly shared human vice. For that reason I doubt that much will come of ventures such as Power 2010, chaired by Helena Kennedy who is a working peer in the House of Lords taking the Labour whip.
If one has to be a realist and therefore must abandon ideas of meaningful regional devolution in England, as I suppose one must do (and no regional devolution is certainly better than pretend regional devolution), we are therefore left with Gerry Hassan's thesis of there being a need to forge some form of English identity with progressive values. Whatever the outcome of all this, I suspect that in 20 or 30 years' time, Vernon Bogdanor's defence of the status quo will be looked on as laughable.
Forever young
I went to a concert last night which featured all of Focus, the Strawbs and Wishbone Ash. All were good, but Focus remained the most innovative with Thijs van Leer on Hammond (what bands still play a Hammond organ?) - and after seeing Pierre van der Linden I now know that I want to be a drummer when I grow up.
It is a reminder that like it or not (and many don't), those born in the late 40s and the 50s still set the agenda for much in the social, political and cultural scene. Isn't our likely next Prime Minister, David Cameron, a timid and air-brushed version of what we might have been heard 20 years ago, albeit still trapped by the right wing of his own party into insipid ineffectiveness?
But what of young people in Britain today? Very often marginalised, victimised and disposable. The UK was recently criticised by the UN's Committee on the Rights of the Child for its retrogressive (and ultimately self-defeating) approach to the young, and in particular in relation to the demonisation of teenagers. Treat young people as criminals and they will become criminals: yes, binge drinking by teenagers is problematic, but it is not answered by forever bringing in new criminal sanctions. Much of the blame probably lies in the anti-risk culture that has developed, which leaves the young deprived of all meaningful energetic interaction with the world around them, and results in the only release remaining to them being the creation of mayhem on Friday and Saturday nights when they reach an age to tell their elders to get lost. Policies need to be developed not to deprive the young of all creative physical and other impulses, but to channel them into socially acceptable forms free of the excessive regulation encouraged by well intended but socially destructive one-issue pressure groups. Perhaps we also have to be mature enough to realise that in life bad things sometimes happen, to the young as well as to the old, and it doesn't always mean that someone is to blame: but the unfortunate truth may be that we are some way from that.
Maybe a mature public debate is required about the role of risk in society, and how the balance is to be struck between attempts to eliminate all risk on the one hand (it can't be done, and were all risk to be eliminated then life would not be worth living), and the inevitable accidents and misfortunes which are going to happen on the other hand. Perhaps the judiciary need to be involved in this, with their propensity when faced with a hard case to find negligence in any situation.
And surely the use by some Councils and others of so-called "Mosquitos" - devices which emit unpleasantly loud high-pitched sound audible only to those under about 20 in order to drive them from city centres - comprises the most gross and improper interference with the human rights of the young? I challenge any reader and ask them, if your local authority had tried to oust you from town centres with these kind of techniques when you were in your teens, how would you have reacted? If your local council or other local organisations have installed them, why not start a local campaign against this disgraceful practice; all the better if some public spirited individual with the money to spare could combine this with the bringing of proceedings for public nuisance or judicial review against the bodies concerned. It might well lose, but the publicity might be worth the price, and it could just win.
David Cameron should get back to hugging a hoodie, not as a gimmick but by way of starting public debate on how the opportunities and challenges necessary for the healthy development of young people into productive adults is to be accomplished. That will mean listening and thinking, and admitting that it will be difficult to find the correct answer, and not marching into office with an "I'll fix it" attitude. Probably that is more than we can expect from any politician, but just as we cannot live without risk, so we cannot live without hope.
It is a reminder that like it or not (and many don't), those born in the late 40s and the 50s still set the agenda for much in the social, political and cultural scene. Isn't our likely next Prime Minister, David Cameron, a timid and air-brushed version of what we might have been heard 20 years ago, albeit still trapped by the right wing of his own party into insipid ineffectiveness?
But what of young people in Britain today? Very often marginalised, victimised and disposable. The UK was recently criticised by the UN's Committee on the Rights of the Child for its retrogressive (and ultimately self-defeating) approach to the young, and in particular in relation to the demonisation of teenagers. Treat young people as criminals and they will become criminals: yes, binge drinking by teenagers is problematic, but it is not answered by forever bringing in new criminal sanctions. Much of the blame probably lies in the anti-risk culture that has developed, which leaves the young deprived of all meaningful energetic interaction with the world around them, and results in the only release remaining to them being the creation of mayhem on Friday and Saturday nights when they reach an age to tell their elders to get lost. Policies need to be developed not to deprive the young of all creative physical and other impulses, but to channel them into socially acceptable forms free of the excessive regulation encouraged by well intended but socially destructive one-issue pressure groups. Perhaps we also have to be mature enough to realise that in life bad things sometimes happen, to the young as well as to the old, and it doesn't always mean that someone is to blame: but the unfortunate truth may be that we are some way from that.
Maybe a mature public debate is required about the role of risk in society, and how the balance is to be struck between attempts to eliminate all risk on the one hand (it can't be done, and were all risk to be eliminated then life would not be worth living), and the inevitable accidents and misfortunes which are going to happen on the other hand. Perhaps the judiciary need to be involved in this, with their propensity when faced with a hard case to find negligence in any situation.
And surely the use by some Councils and others of so-called "Mosquitos" - devices which emit unpleasantly loud high-pitched sound audible only to those under about 20 in order to drive them from city centres - comprises the most gross and improper interference with the human rights of the young? I challenge any reader and ask them, if your local authority had tried to oust you from town centres with these kind of techniques when you were in your teens, how would you have reacted? If your local council or other local organisations have installed them, why not start a local campaign against this disgraceful practice; all the better if some public spirited individual with the money to spare could combine this with the bringing of proceedings for public nuisance or judicial review against the bodies concerned. It might well lose, but the publicity might be worth the price, and it could just win.
David Cameron should get back to hugging a hoodie, not as a gimmick but by way of starting public debate on how the opportunities and challenges necessary for the healthy development of young people into productive adults is to be accomplished. That will mean listening and thinking, and admitting that it will be difficult to find the correct answer, and not marching into office with an "I'll fix it" attitude. Probably that is more than we can expect from any politician, but just as we cannot live without risk, so we cannot live without hope.
Saturday, 17 October 2009
Trafigura: The Sequel
I commented on the Trafigura affair in my earlier article Trafigura: Oil and law don't mix.
According to BBC reports, Trafigura through their solicitors Carter Ruck have released the Guardian from the injunction precluding them reporting on the preliminary report into the disposal of oil residues around the Ivory Coast which had apparently been procured by Trafigura from a technical adviser. A number of copies of the report (the "Minton report") are now on the web. Now that the preliminary report is open to the public, I can see that I was wrong to refer to disposal at sea. The residues referred to in the report and about which a dispute about responsibility arises were disposed of to coastal landfill sites around the Ivory Coast.
I have also now dug out a copy of the Parliamentary question against which the High Court issued a secret gagging injunction. It was thus:
As I mentioned in my earlier article, the sub-judice principle rightly makes it a contempt of court to publish material in active proceedings likely to prejudice the fair disposal of those proceedings, and the principle is most commonly thought of in terms of criminal proceedings, although it also applies, as in the Trafigura case, to civil proceedings. The two main areas of prejudice which might arise from newspaper reports is prejudice to witnesses and prejudice to jurors. Given that the Minton report is a technical scientific report which would be the subject of expert evidence at any trial, and expert witnesses are first professionals and secondly would read the Minton report themselves in preparing their own evidence, it is unlikely that release of the report now could affect witnesses in the defamation action. Normally civil cases do not involve juries, which is why the sub-judice principle bears less heavily on them in comparison to criminal cases, but defamation proceedings are one of the two remaining classes of civil trial in which a jury may be requested to determine matters of fact. However, given that the Minton report would be compellable in civil proceedings (Trafigura could be required to produce it to the defendants and thus to the jury), any obvious substantial prejudice would be difficult to find.
But how could the PQ, which only names but does not extract the Minton report, be prejudicial? Possibly it might make it easier to find an illicit copy on the web by means of a Google search, but a knowledgeable searcher could equally well have searched on "Trafigura Ivory Coast oil report", and found it were an illicit copy available. It is ridiculous.
There are worrying indications that the High Court issues secret gagging injunctions without reasonable inquiry. Incidentally, I note that the BBC report says that "the legal firm Carter Ruck has written to the Guardian saying the paper should regard itself as 'released forthwith' from any reporting restrictions", but this is an order of the court not an order of Carter Ruck. This reduces the court to acting as mere agents of any applicant firm of solicitors who happen to produce an affidavit saying they fear prejudice.
If we had a written constitution then we would more clearly know that secret gagging orders should only be issued where there is such a compelling and exceptional case in the interests of justice to limit public knowledge of the case as to outweigh the public interest in the open and transparent administration of justice. If the courts have got into the habit of issuing secret gagging orders like confetti, they should step back, realise that there are constitutional issues at stake, and stop. If legislative intervention is necessary to secure this, Parliament should get to work on it. There is nothing, after all, party political in this.
According to BBC reports, Trafigura through their solicitors Carter Ruck have released the Guardian from the injunction precluding them reporting on the preliminary report into the disposal of oil residues around the Ivory Coast which had apparently been procured by Trafigura from a technical adviser. A number of copies of the report (the "Minton report") are now on the web. Now that the preliminary report is open to the public, I can see that I was wrong to refer to disposal at sea. The residues referred to in the report and about which a dispute about responsibility arises were disposed of to coastal landfill sites around the Ivory Coast.
I have also now dug out a copy of the Parliamentary question against which the High Court issued a secret gagging injunction. It was thus:
Paul Farrelly (Newcastle-under-Lyme): To ask the Secretary of State for Justice, what assessment he has made of the effectiveness of legislation to protect (a) whistleblowers and (b) press freedom following the injunctions obtained in the High Court by (i) Barclays and Freshfields solicitors on 19 March 2009 on the publication of internal Barclays reports documenting alleged tax avoidance schemes and (ii) Trafigura and Carter-Ruck solicitors on 11 September 2009 on the publication of the Minton report on the alleged dumping of toxic waste in the Ivory Coast, commissioned by Trafigura.Possibly one could just about take the view that releasing the Minton report might be prejudicial to the legal action they are thought to have brought for defamation against a broadcaster (although I doubt it - see further below), but it is astonishing that a judge of the High Court thought this innocuous PQ was such a threat to the judicial process that he or she needed to gag it, and gag it secretly. Probably not only astonishing, but also an outrage, given the public interest in openness in the administration of justice.
As I mentioned in my earlier article, the sub-judice principle rightly makes it a contempt of court to publish material in active proceedings likely to prejudice the fair disposal of those proceedings, and the principle is most commonly thought of in terms of criminal proceedings, although it also applies, as in the Trafigura case, to civil proceedings. The two main areas of prejudice which might arise from newspaper reports is prejudice to witnesses and prejudice to jurors. Given that the Minton report is a technical scientific report which would be the subject of expert evidence at any trial, and expert witnesses are first professionals and secondly would read the Minton report themselves in preparing their own evidence, it is unlikely that release of the report now could affect witnesses in the defamation action. Normally civil cases do not involve juries, which is why the sub-judice principle bears less heavily on them in comparison to criminal cases, but defamation proceedings are one of the two remaining classes of civil trial in which a jury may be requested to determine matters of fact. However, given that the Minton report would be compellable in civil proceedings (Trafigura could be required to produce it to the defendants and thus to the jury), any obvious substantial prejudice would be difficult to find.
But how could the PQ, which only names but does not extract the Minton report, be prejudicial? Possibly it might make it easier to find an illicit copy on the web by means of a Google search, but a knowledgeable searcher could equally well have searched on "Trafigura Ivory Coast oil report", and found it were an illicit copy available. It is ridiculous.
There are worrying indications that the High Court issues secret gagging injunctions without reasonable inquiry. Incidentally, I note that the BBC report says that "the legal firm Carter Ruck has written to the Guardian saying the paper should regard itself as 'released forthwith' from any reporting restrictions", but this is an order of the court not an order of Carter Ruck. This reduces the court to acting as mere agents of any applicant firm of solicitors who happen to produce an affidavit saying they fear prejudice.
If we had a written constitution then we would more clearly know that secret gagging orders should only be issued where there is such a compelling and exceptional case in the interests of justice to limit public knowledge of the case as to outweigh the public interest in the open and transparent administration of justice. If the courts have got into the habit of issuing secret gagging orders like confetti, they should step back, realise that there are constitutional issues at stake, and stop. If legislative intervention is necessary to secure this, Parliament should get to work on it. There is nothing, after all, party political in this.
Thursday, 15 October 2009
Trafigura: Oil and law don't mix
The Trafigura affair, creditably taken up by the Guardian newspaper and raised in Prime Minister's questions yesterday, is interesting. It involves what has been referred to as "secret injunctions" or "super injunctions". A secret injunction is similar to a normal injunction, namely an order of the court issued to a person requiring that person to do or not to do something, but it is coupled with a further injunction requiring that person not to divulge (except to the person's legal adviser) that the injunction has been issued and what it relates to.
The background
Trafigura are an oil-trading company and are the subject of proceedings by affected people in West Africa concerning an alleged releasing of oil sludge residues at sea, a matter which it must be said is still to be proven one way or the other, but is at least a matter of public knowledge. The English dimension arises because Trafigura also appear to have brought defamation proceedings in England against a broadcasting enterprise which has referred to the affair. Trafigura appear to have persuaded a judge in the High Court (the identity of whom also appears to be a secret) that a secret injunction should be issued in the case preventing reporting of the defamation proceedings on sub-judice grounds. I say "appear" here and further below because the secrecy requirements make it difficult to know exactly what is going on.
Not unreasonably, there was some concern about the court-sanctioned gagging going on in this case. Paul Farrelly MP tabled a Parliamentary question about it to Ministers in order to draw attention to this, and probably also to circumvent the gagging in the hope that newspapers would report on the Parliamentary question. In response Trafigura went a step further, entirely logical if you accept the premise that secret court proceedings are acceptable in a democracy, of obtaining a second secret injunction, this time preventing reporting by the Guardian newspaper and possibly others (as it is secret we don't know) of the Parliamentary question.
Sub-judice
One of the issues lying behind the injunction is therefore that of sub-judice. The sub-judice principle, of common law origin but now found in statute (most recently in the Contempt of Court Act 1981), makes it a contempt of court to publish material in active proceedings likely to prejudice the fair disposal of those proceedings. The principle is most commonly thought of in terms of criminal proceedings, although it also applies, as in the case in question, to civil proceedings. Of itself, the sub-judice rule is necessary in any society that wishes trials to be conducted fairly.
However two additional elements have entered into the Trafigura affair. The first is the increasing readiness of the judiciary to issue secret injunctions preventing mention being made of legal proceedings and the parties to them, particularly in defamation and privacy cases. It may well be that there are instances where mere mention of a defamation case may aggravate the defamation, or may prejudice the proceedings, but they must be few in number and it is difficult to see how that could apply in this case. If the Trafigura matter highlights this growing trend and prompts legislative intervention in the way the courts conduct the practice, that may not be a bad thing. There is a matter of public interest at stake here, namely the principle that all legal proceedings should be as open as is practicable and consistent with justice, to which it appears too little weight may be being given on occasions by the High Court when dealing with privacy and defamation cases. One of the weapons of the police state is the secret trial.
Parliamentary privilege
The other aspect is that of Parliamentary privilege. Despite suggestions to the contrary, the issue by the court of the injunction, whilst appearing to be ill-judged, did not breach Parliamentary privilege. Article 9 of the Bill of Rights 1689 provides that "the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament". This prevents courts or others involving themselves in proceedings in Parliament, and gives absolute immunity to things said and done in Parliament. However, the question that sometimes arises is what are "proceedings in Parliament" protected by article 9. It has been held for example that the article does not include most correspondence between members and Ministers on constituency matters, and in the well-known case of Stockdale v Hansard (1839) 9 Ad & El 1 it was held that whilst papers published internally within Parliament relating to Parliamentary business are protected, publication of them outside Parliament by order of the House is not. (The Stockdale case in fact concerned publication by order of the House of a report into Newgate prison which alleged the circulation there of pornographic material.)
In response to the Stockdale decision, Parliament duly enacted the Parliamentary Papers Act 1840. This confers absolute privilege in any proceedings, including defamation and contempt of court, whether criminal or civil, in respect of the publication or copying of any document or paper published by order of the House, and qualified privilege (that is, privilege in the absence of malice or other improper motive) in respect of the publication of any fair summary or extract of the document or paper.
The making of a Parliamentary question to a Minister, including a written one (the vast majority of Parliamentary questions are written), and the making of a reply by a Minister, are undoubtedly proceedings in Parliament for the purposes of article 9. However, it is also clear from the Stockdale case that the further publication of the Parliamentary question outside Parliament is not. Likewise, unless published by order of the House as one of the papers of the House, it is not protected by the 1840 Act either, and it appears that although all Parliamentary questions are published on-line on Parliament's website, there is no formal order of the House that that should be done - I think, although I stand to be corrected if I am wrong on that point of fact.
Assuming there is no such general order of the House for publication of Parliamentary questions - and it would be interesting to see if the judge actually inquired into this - the issuing of the injunction against publication of the particular Parliamentary question relevant to the Trafigura case was within the legal competence of the judge in question. What one must question however is whether in the exercise of that power he or she was right to take the view that the making of the secret injunction was justified on the merits, given the public interest in openness in legal proceedings.
The background
Trafigura are an oil-trading company and are the subject of proceedings by affected people in West Africa concerning an alleged releasing of oil sludge residues at sea, a matter which it must be said is still to be proven one way or the other, but is at least a matter of public knowledge. The English dimension arises because Trafigura also appear to have brought defamation proceedings in England against a broadcasting enterprise which has referred to the affair. Trafigura appear to have persuaded a judge in the High Court (the identity of whom also appears to be a secret) that a secret injunction should be issued in the case preventing reporting of the defamation proceedings on sub-judice grounds. I say "appear" here and further below because the secrecy requirements make it difficult to know exactly what is going on.
Not unreasonably, there was some concern about the court-sanctioned gagging going on in this case. Paul Farrelly MP tabled a Parliamentary question about it to Ministers in order to draw attention to this, and probably also to circumvent the gagging in the hope that newspapers would report on the Parliamentary question. In response Trafigura went a step further, entirely logical if you accept the premise that secret court proceedings are acceptable in a democracy, of obtaining a second secret injunction, this time preventing reporting by the Guardian newspaper and possibly others (as it is secret we don't know) of the Parliamentary question.
Sub-judice
One of the issues lying behind the injunction is therefore that of sub-judice. The sub-judice principle, of common law origin but now found in statute (most recently in the Contempt of Court Act 1981), makes it a contempt of court to publish material in active proceedings likely to prejudice the fair disposal of those proceedings. The principle is most commonly thought of in terms of criminal proceedings, although it also applies, as in the case in question, to civil proceedings. Of itself, the sub-judice rule is necessary in any society that wishes trials to be conducted fairly.
However two additional elements have entered into the Trafigura affair. The first is the increasing readiness of the judiciary to issue secret injunctions preventing mention being made of legal proceedings and the parties to them, particularly in defamation and privacy cases. It may well be that there are instances where mere mention of a defamation case may aggravate the defamation, or may prejudice the proceedings, but they must be few in number and it is difficult to see how that could apply in this case. If the Trafigura matter highlights this growing trend and prompts legislative intervention in the way the courts conduct the practice, that may not be a bad thing. There is a matter of public interest at stake here, namely the principle that all legal proceedings should be as open as is practicable and consistent with justice, to which it appears too little weight may be being given on occasions by the High Court when dealing with privacy and defamation cases. One of the weapons of the police state is the secret trial.
Parliamentary privilege
The other aspect is that of Parliamentary privilege. Despite suggestions to the contrary, the issue by the court of the injunction, whilst appearing to be ill-judged, did not breach Parliamentary privilege. Article 9 of the Bill of Rights 1689 provides that "the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament". This prevents courts or others involving themselves in proceedings in Parliament, and gives absolute immunity to things said and done in Parliament. However, the question that sometimes arises is what are "proceedings in Parliament" protected by article 9. It has been held for example that the article does not include most correspondence between members and Ministers on constituency matters, and in the well-known case of Stockdale v Hansard (1839) 9 Ad & El 1 it was held that whilst papers published internally within Parliament relating to Parliamentary business are protected, publication of them outside Parliament by order of the House is not. (The Stockdale case in fact concerned publication by order of the House of a report into Newgate prison which alleged the circulation there of pornographic material.)
In response to the Stockdale decision, Parliament duly enacted the Parliamentary Papers Act 1840. This confers absolute privilege in any proceedings, including defamation and contempt of court, whether criminal or civil, in respect of the publication or copying of any document or paper published by order of the House, and qualified privilege (that is, privilege in the absence of malice or other improper motive) in respect of the publication of any fair summary or extract of the document or paper.
The making of a Parliamentary question to a Minister, including a written one (the vast majority of Parliamentary questions are written), and the making of a reply by a Minister, are undoubtedly proceedings in Parliament for the purposes of article 9. However, it is also clear from the Stockdale case that the further publication of the Parliamentary question outside Parliament is not. Likewise, unless published by order of the House as one of the papers of the House, it is not protected by the 1840 Act either, and it appears that although all Parliamentary questions are published on-line on Parliament's website, there is no formal order of the House that that should be done - I think, although I stand to be corrected if I am wrong on that point of fact.
Assuming there is no such general order of the House for publication of Parliamentary questions - and it would be interesting to see if the judge actually inquired into this - the issuing of the injunction against publication of the particular Parliamentary question relevant to the Trafigura case was within the legal competence of the judge in question. What one must question however is whether in the exercise of that power he or she was right to take the view that the making of the secret injunction was justified on the merits, given the public interest in openness in legal proceedings.
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