Category Archives: academe

Standing in the shadows

More on Eric Kaufmann’s recent research into ‘racial self-interest’.

The concept of ‘racial self-interest’ runs through EK’s research report. In fact, it runs through the research like a barium meal: it goes in at one end and comes out unchanged at the other, after being visible all the way through. A few quotations to give you the idea:

Shadi Hamid … argues that it is important to distinguish racism and racial self-interest, and that Trump supporters, who voted in a racially self-interested way to limit immigration, should not be accused of racism. (Executive Summary)

is it the case that immigration skeptics are majority ethnic partisans who are acting in what Shadi Hamid terms their ‘racial self-interest’: seeking to maximise the demographic advantage of their group (Introduction)

Consider the question: ‘A white American who identifies with her group and its history supports a proposal to reduce immigration. Her motivation is to maintain her group’s share of America’s population. Is this person: 1) just acting in her racial self-interest, which is not racist; 2) being racist; 3) don’t know.’ … First, the words Asian, Black or Latino are swapped for White to see how responses change. Second, ‘decrease’ [sic] is changed to ‘increase’ immigration, and ‘maintain’ to ‘increase’ group share. Thus: ‘An Asian American who identifies with her group and its history supports a proposal to increase immigration from Asia. Her motivation is to increase her group’s share of America’s population.’  (Immigration and Racism: A Conjoint Analysis)

The questions were very explicit about specifying that the subject in each question wants particular policies in order to preserve or enhance her group’s demographic share. In this sense, the ‘correct’ answer is that people are ‘acting in their racial self-interest, which is not racist.’ It is possible – and consistent – for someone to consider all racially self-interested behaviour racist. But the variation in white liberal responses based on whether the question pertains to whites or minorities, belies this rational explanation.  (Immigration and Racism in Britain and America)

On the question of whether group-oriented immigration preferences are racist, white liberals are more biased than white conservatives … imputing white racist motivations to those trying to advance their racial self-interest. … it is important to draw a distinction between irrational racism and rational group self-interest. Wanting fewer people from other ethnic groups or higher numbers of co-ethnics to bolster one’s group share is not racist (Conclusion)

“Racial self-interest? How is that not racist by itself?” (Justify Your Answer: Examining qualitative evidence)

The last one is from a survey participant, not EK; I just thought we needed some fresh air.

The research starts from the assumption that ‘racial self-interest’ is distinct from racism, and that recognising this fact explains – and helps condone – some racially discriminatory behaviour. The survey then prompts participants with the information that ‘racial self-interest’ is in fact distinct from racism, and invites them to apply it to a hypothetical situation which is designed to exemplify racial self-interest. Finally, EK reads the data and concludes that ‘racial self-interest’ is distinct from racism, and that only irrational bias can account for left-wingers’ failure to acknowledge the fact.

This isn’t all that’s going on here, though. A clue is supplied by a passing reference to Kahneman and Thinking, fast and slow. The sucker-punch structure of EK’s question is very reminiscent of the question with which Tversky and Kahneman identified the ‘conjunction problem’:

Linda is 31 years old, single, outspoken, and very bright. She majored in philosophy. As a student, she was deeply concerned with issues of discrimination and social justice, and also participated in anti-nuclear demonstrations. Which is more probable?

a) Linda is a bank teller.

b) Linda is a bank teller and is active in the feminist movement.

The great majority of people consistently get this wrong. The correct answer is – logically has to be – a); “A and also B” cannot be more probable than “A with or without B”, whatever A and B are. But we’re not hard-wired to be good at probability; we seem to read the question as an invitation to fill in the blank in the way that gives the most satisfying story, in this case option b). EK’s question is different, but it has a definite family resemblance; it’s as if we were asked

As a student, she was deeply concerned with issues of discrimination and social justice, and also joined the local Labour Party. Which is more probable?

a) Linda is a Labour Party member, which is not the same as being a socialist.

b) Linda is a socialist.

In EK’s research, in other words, respondents were primed with the ‘right’ answer and duly repeated it back, in the same way that Tversky and Kahneman’s subjects were effectively primed with the ‘wrong’ answer. But this isn’t the point of the research; the point is that a minority of respondents gave the ‘wrong’ answer despite the priming – and it’s these subjects that EK is really interested in. His interest isn’t unmotivated – he clearly believes that the ‘racial self-interest’ model is in fact the right answer, as well as being the ‘right’ answer to the question as he formulated it. This, though, is something that the research as designed can’t confirm or deny; it’s assumed at the outset and assumed in the conclusion.

As, perhaps, it has to be: as the previous post demonstrate, it’s very difficult to separate ‘racial self-interest’ from racism other than by definitional fiat – and even that is liable to collapse if we look at ‘racial self-interest’ from the outside, in terms of its effects on those who are disadvantaged by it. (If I stop my daughter playing with your daughter because of the colour of your skin, do you think that (a) I’m motivated by racial hate; (b) my motives are unknowable and may be nothing more than racial self-interest, which would be perfectly fine; or (c) whatever my motives, my actions themselves are hateful?)

Nor is it clear what the advantage of adopting this concept would be, other than that some people with racist views would no longer be challenged on them. For EK, this in itself would be beneficial:

In one focus group run as part of my ESRC-Demos research, a lady complained of the Croydon (UK) tramlink that ‘I might have been the only English person on that tram… I didn’t like it… I could have been in a foreign country’ was challenged by another participant who asked, ‘Why should that affect you that there’s minorities on the [tram]?’ The woman swiftly changed her narrative to a more acceptable, economic, form of opposition to immigration: ‘It doesn’t affect me. It, um… I’ve got grandchildren and children… I don’t think things are going to get any better or easier for them, to get work.’ In other words, economic but not ethnocultural concerns about immigration are considered legitimate subjects for public debate. This produces dishonest debate rather than a frank and rational exchange between people of all backgrounds – realising they share similar ethnic motivations and must reach an accommodation that is fair to all.

But why would the detoxifying of ‘ethnocultural concerns’ be a good thing? How would the resulting ‘honest’, ‘frank and rational’ debate go?

– Why should that affect you that there’s minorities on the [tram]?
“Well, I’m White, aren’t I. Don’t like being outnumbered by foreigners – stands to reason. It’s against my racial self-interest.”
– Oh, racial self-interest, right. Don’t feel it so strongly myself, but if you do, well, fair enough.

There isn’t that much to debate, at the end of the day: a woman in Croydon didn’t like being – or feeling – outnumbered by foreign people on a tram, and that feeling is either (a) racist and therefore not legitimate or (b) not racist and therefore legitimate. It doesn’t matter how many people might frankly and honestly admit to racist sentiments, if encouraged to do so; if those sentiments are racist, they shouldn’t be publicly legitimated. Really, this is just “you can’t say that any more” in more sophisticated language.

The notion of racial self-interest also carries the unwelcome implication that there are such things as races which can have self-interest. EK has gestured towards the classic sociologist’s answer to this kind of question – that if people believe things are real and act accordingly, they are real in their consequences – but in this case it won’t really do. To believe in ethnic groups – even to believe in one’s own – is not necessarily to believe in ethnic group interests. If people believe that the Black British identity, the Muslim identity, the Welsh-speaking identity (etc) are real and act accordingly, no harm necessarily follows: everyone is free to maintain, develop and celebrate the identities which they feel to be theirs, and to seek out like-minded people to support them in doing so. No harm necessarily follows, up to the point where they start believing that identities like these have interests and are in competition. It’s this additional belief that leads people to act hatefully to people of the ‘wrong’ group, and it’s this belief that we generally call racism.

The one situation where ethnic group interests can become a reality, ironically, is when the ethnic group is under threat – which may be the end result of racism. Where a particular group is threatened with extinction, or its existence is denied, or its identity is treated with contempt, all members of that group have a genuine common interest in group preservation and self-assertion. But this interest is met by physical and cultural survival; there is no intrinsic interest in group expansion, except so far as necessary to assure bare survival. Moreover, the group interest is secondary; it is derivative of the fundamental individual rights which everyone has, to life and to self-actualization through culture. If those needs are met in ways that don’t perpetuate the group, the group has no independent interest in survival. There may be a thousand nominal Muggletonians in Britain, but if none of them feels that being a Muggletonian is an important part of their identity, the extinction of Muggletonianism is inevitable and is not to be regretted (except by historians).

The group extinction scenario clearly has no relevance to the position of Whites in Britain and the USA. EK invokes it nevertheless, noting that Zoroastrians frown on exogamy for just this reason. A similar logic presumably underlies an otherwise puzzling formulation, when EK argues that if someone objects to their child’s chosen partner on the grounds that the union would “defile their race’s purity”, this is racism, but that if the motive is “to preserve the vitality” of their ethnic group, this is “group-interested behaviour”. (Got that, everyone? Purity bad, vitality good.) EK seems to wish to help himself to the genuine issues faced by groups which are so small as to be in danger of extinction; he manages it by blurring the difference between genuinely preserving an ethnic group from extinction and preserving its “vitality”, or believing one is doing so. But the threat to the survival of Zoroastrianism is a reality, not merely something that becomes real by being acted on. If you act as if being English is ‘a thing’, you’re creating the social reality of being English. If you act as if the English are under threat of extinction, you’re creating social reality based on assumptions which you know to be false – in other words, you’re acting in bad faith.

At the end of the report we still have no clue as to why EK believes that ‘racial self-interest’ is a valid model, to the point that people who fail to believe in it can be labelled as biased and irrational. It’s clearly not because he believes that discrete human ‘races’ actually exist, in the sense that distinguishable noble gases or species of lizard exist. Certainly, many people believe in and identify with ethnic groups (defined in a variety of different ways). And certainly, a lot of people believe that ethnic groups have interests – at least, that their ethnic group does – and that the pursuit of these interests is entirely distinct from racism and should not be given such a pejorative label. But it’s not the role of the social scientist to give scientific credibility to widely-held errors – least of all errors as dangerous as this one is.

Next: but what about multiculturalism, eh?

You’ve got ventriloquists

My previous post is now approaching 3,000 reads; it’s now the best-read post in this blog’s history, passing the previous record-holder – which was (bizarrely) my annotated “There There, My Dear”.

I’m pleased with the impact the post has had and very pleased with its reception (I’ll write about some critical responses in another post), but since I wrote it I’ve felt that more was needed. The post was a line-by-line fisking of David Goodhart’s column, following the twists, feints and occasional leaps of the argument, so it wasn’t a very systematic presentation of my disagreement with his and Eric Kaufmann’s ideas. I hadn’t read the whole of EK’s report when I wrote it; I’ve now made good that omission, which in turn has prompted further reflections. Also, DG complained about the post’s facetiousness, which is fair enough; I was trying to raise a smile quite a lot of the time, if only to keep the anger at bay.

So this and the next couple of posts will be devoted to my considered, and reasonably straight-faced, thoughts on this whole ‘racial self-interest’ thing. First, let’s talk about the vexed issue of racism and how to define it. Here’s the OED definition, one more time:

A belief that one’s own racial or ethnic group is superior, or that other such groups represent a threat to one’s cultural identity, racial integrity, or economic well-being; (also) a belief that the members of different racial or ethnic groups possess specific characteristics, abilities, or qualities, which can be compared and evaluated. Hence: prejudice, discrimination, or antagonism directed against people of other racial or ethnic groups (or, more widely, of other nationalities), esp. based on such beliefs.

Needless to say, this isn’t the definition DG and EK prefer; on Twitter, DG ridiculed my reliance on ‘dictionary definitions’ – which is fairly rich coming from somebody who’d relied on a definition plucked out of the air. For DG the ‘normal definition’ of racism is “irrational hatred, fear or contempt for another group”. EK, in the project report, quotes DG (it’s a small world) hypothesising “someone who identifies loosely with their own ethnic group … [and] wishes to live in an area where the group is predominant”; this person, however, “holds no negative views of other groups”, and as such we are invited to consider him or her not to be racist. EK for his part notes that different people do in fact define racism differently – although “most agree that someone who does not want to live next to a person of a different race is racist” – and offers to resolve the problem by coming up with a narrower, core definition on which we can all agree. In his words,

the central question concerns motivation. Do [people who want to reduce immigration] fear, hate or look down upon those of other ethnic backgrounds? If the answer is yes, they are racist by any definition of the term. Or is it the case that immigration skeptics are majority ethnic partisans who are … seeking to maximise the demographic advantage of their group[?]

And in this case, again, we are invited to consider that these people are not racists.

Now, you’ll have noted the absence from the OED definition of any reference to fear, hatred or contempt, so central to both EK’s and DG’s version of the term (DG’s formulation in fact specifies irrational hatred, etc, implying that in some situations he might not even consider those negative emotions to rise to the level of racism). So how can this definition be valid? Let’s suppose that you are one of our putative non-racists, feeling no animus towards any other group but identifying with your own group, wishing to maximise its demographic advantage and preferring to live in an area where the group is predominant. Let’s suppose you live in a street with nineteen houses, ten of them (your own included) occupied by people who identify with the same ethnic group as you – White British, Bosnian Serb, Loyalist, Hutu, whatever it might be. Now suppose that one of those ten families moves out suddenly – trading up to the outer suburbs, relocating for a job in another town, whatever – and the house is bought by a family from the other group. They’re perfectly nice people – you’ve got nothing against them as individuals; the thought of hating or fearing them personally has never crossed your mind – but they’re not from your group, and that matters to you; you want to maximise your group’s demographic advantage, and to live in an area where your group predominates, and while their group has the majority in your street that isn’t possible. You hear on the grapevine that the location is really convenient for them, the house is the house of their dreams and they got a really good deal on it; you’re happy for them, really you are, but still.

Now suppose that your street is a gated community, and buying a house there isn’t just a matter of putting the money down: the residents’ committee have to agree on any newcomer. Or suppose that they’ve got the house fair and square, but you hear rumours that they’re not really happy there and they’re thinking of moving out – they hadn’t expected their new neighbours to throw so many loud parties. Decision time: if you’re going to act on your preference for a community numerically dominated by your group, your course of action is clear. You regretfully vote against the newcomers in the residents’ committee; you find the first excuse to throw the loudest and longest party you can manage. Let’s face it, the new family was never going to fit in – it’s a kindness, really, to let them find out sooner rather than later…

I respectfully put it to DG, EK and their co-thinkers that, from the point of view of the newcomers, it doesn’t make much difference whether you consciously hate them or not. There is very little difference between being coerced into giving up something valuable by people who genuinely hate you, and being coerced into giving up something valuable by people who just don’t want you around. In any case, hatred is as hatred does: if somebody denied you the house of your dreams just because they didn’t like the look of you, I think you could be excused for feeling that they did in fact hate and/or look down on you. In point of fact, if the history of ghettoisation and ethnic cleansing tells us anything, it’s that terrible things can be done by people who don’t consciously hate or fear anyone, but just think it’d be better all round if those people were somewhere out of sight.

It could be argued, conversely, that this is all a dreadful misrepresentation – when we talk about wanting to maximise demographic advantage we’re not actually talking about people who would do nasty things like veto new residents on racial grounds. But if we’re not talking about that, what on earth are we talking about? I may have a deep-seated yearning to surround myself with fans of Cannon and Ball (no ironists or timewasters please), but if I never act on it in any way it’s not of any interest to anyone. We’re surely talking about beliefs that people are prepared to act on – or that they genuinely want politicians to act on on their behalf. That being the case, the difference between being an ‘ethnic partisan’ and ‘irrational hatred, fear or contempt for another group’ is vanishingly small.

DG believes this is all a terrible mistake, tactically as well as normatively: “To describe as racist what many ordinary citizens regard as reasonable anxieties about rapid change is simply wrong, and a cause of great resentment”. EK: “Real racism exists and is dangerous. All the more reason to refine the term, using it precisely rather than permitting it to be stretched by political entrepreneurs”. Both seem to be backed up by a former Labour voter, quoted by US academic Justin Gest: “I think the anti-racists have made it worse. They look for trouble. They construe everything as racist.” Labelling people’s views as racist both alienates those people and makes them less sensitive to the actual danger of racism; instead, we should keep our definitional powder dry, abandoning the OED definition for the higher ground of a hatred-based definition. DG again: “The point is precisely to cordon off racism as far as possible into a place where everyone can recognise it and reject it, and then place linguistic and intellectual barriers between it and other forms of thought and behaviour that may involve race but are not racist”. Or rather, to relocate the linguistic and intellectual barriers which make racism taboo, putting some of the forms of thought and behaviour currently regarded as racism outside them.

There are two arguments here, both of them fairly confused. Whether ordinary citizens regard their views as ‘reasonable anxieties’ has no bearing on whether or not those views are in fact racist. (And let’s face it, most people have always regarded their own views as reasonable.) Calling their views racist may cause great resentment, but that doesn’t mean we shouldn’t do it (although it may call for a degree of tact). It certainly doesn’t mean that we should redefine racism so as not to offend anyone(!). DG argues both that racism has no intrinsic meaning (but that we should redefine it to exclude anything that ‘many ordinary citizens’ currently think), and that it has an intrinsic meaning which is much narrower than its current usage. EK for his part argues that the current definition has been deliberately stretched out of shape, apparently for partisan advantage, and that this over-extended definition tends to discredit the whole concept (although in that case it’s not clear where the partisan advantage is coming from).

But the whole argument’s moot, given that – as we’ve seen – there is no significant distinction between the broad and narrow definitions. To stop somebody getting what they want, not because it directly benefits you but because of who they are, is to treat that person hatefully and contemptuously. Whether you’re cackling evilly while you do it, or mentally reassuring yourself that you’re acting for the greater good, is not the deciding factor; in fact it’s a very trivial factor, of little interest to anyone but you.

As for the “anti-racists make it worse” argument, I think we should call its bluff – particularly bearing in mind that the “former Labour voter” quoted had subsequently transferred her loyalties to the BNP and then to UKIP, and that Gest also recorded her making comments such as

there were dozens of Romanian women with children, and it’s clear they had been on the nick. Vile people, Romanians. Then you walk outside, and it’s so loud with all the halal shops and rubbish in the streets. We look like a suburb of Nairobi.

Are people really being alienated by anti-racists insisting on labelling harmless traditional preferences and turns of phrase as ‘racist’? Or is it just a case of people expressing racist views, being told that those views are racist and being – or acting – mortally offended?

Next: ‘racial self-interest’ and how to ask a silly question.

Ouster!

‘Twas the voice of the Wanderer, I heard her exclaim,
You have weaned me too soon, you must nurse me again
– Stevie Smith

I’ve been following the developing saga of Article 50 through a variety of sources – notably the UK Constitutional Law Association blog, Mark Elliott’s Public Law for Everyone, and the invaluable commentary on Twitter from Schona Jolly, Jo Maugham, Rupert Myers and others. (Exeter! Who’d have thought it?) For what it’s worth I’m inclined to think that Mark Elliott and Hayley Hooper‘s reading of the constitutional position is correct – that the UK’s EU membership is ultimately a matter of treaties concluded between governments, and that any individual rights arising from it were available to be applied from the moment membership was agreed, but were not (and could not be) applied until they had been brought into domestic law by Parliament. This being the case, if membership were to cease, the applicability of those rights would remain in law until such point as the European Communities Act was repealed, but it could have no effect, as the rights would no longer be available. To put it another way, any invocation of a right – or any other legal provision – which exists as a function of Britain’s membership of the EU must implicitly be conditional on EU membership subsisting at the time the invocation is made; to say otherwise would be to say that all EU-based legislation must be repealed before Britain could leave the EU, a proposition which (as far as I’m aware) nobody has advanced. This being the case, it must be possible for EU membership to cease and for EU-derived rights subsequently to be invoked (unsuccessfully, of course).

If the existence of EU-derived rights is no bar to leaving the EU by executive decision, neither is the principle of parliamentary democracy. It is true that the peculiar mechanism of Article 50 – with its inexorable two-year time limit – carries the risk of truncating Britain’s EU membership without any kind of Parliamentary agreement or even consultation, but this is only an idiosyncratic example of a much broader principle: it is governments, not Parliaments, that make treaties and dissolve treaties. Nor does the executive require Parliamentary approval for the making of treaties (as distinct from the enactment of those treaties’ effects into domestic law). Not only could the government have triggered Article 50 the morning after the referendum, as David Cameron originally suggested that his government would; in purely legal terms, Article 50 could have been triggered at any time, including before or even during the referendum campaign. This would certainly have been politically unwise, but it would have been within the competence of the executive; the “constitutional requirements” referred to in the text of Article 50 are undefined, and it would be decidedly courageous to argue that the British constitution requires respect for a specific referendum result. In this perspective, it could even be argued that the current appeal rests on a category error: the EU-derived rights which are at issue are not being disapplied in British law but extinguished at source, and there is – as a matter of constitutional principle – very little that Parliament can properly say about it. As a firm – not to say terrified – opponent of Brexit I don’t take any pleasure in this; nevertheless, it seems to me that this is where the law leads us. The current appeal, for me, is an eminently political case – and one which I strongly support on political grounds – but argued on legal grounds which are dismayingly weak. But we shall have to see what the SC makes of it. (I suspect that the interventions of the Scottish and NI governments may end up being a stronger part of the appellants’ case than their original argument.)

For now, here’s an argument that occurred to me recently, and which I don’t think I’ve seen anywhere else (although I admit I’m not quite up to date with the UKCLA blog); it suggests that, despite the constitutional argument advanced above, the primacy of Parliament may still have a role to play.

Consider the Alternative Vote referendum of 2011. (For anyone in need of a spare rabbit hole, my thoughts on AV are here, and some thoughts on why the referendum was lost are here and here. Note appearance of Matthew Elliott and Daniel Hannan.) It’s commonly acknowledged that the AV referendum, if passed, would have been legally binding in a way that the EU referendum wasn’t; while the European Union Referendum Act 2015 simply enabled the public to express a preference (which we were informally assured the government would subsequently implement), the Parliamentary Voting System and Constituencies Act 2011 actually legislated to introduce AV, with a conditional clause providing that, when the result of the referendum was known, the relevant provisions should either be brought into force or repealed by ministerial order. If the referendum had passed, AV would have been introduced by the executive, without any further parliamentary scrutiny: Parliament had voted (albeit with substantial opposition) for a referendum result to have the power to force the executive’s hand in this specific way.

But there is nothing in the 2011 Act which mandates that the ministerial order should be made immediately, or in any specific time frame; it would have been possible for the government to drag its feet, even to the point where it was (regrettably) no longer possible to introduce AV in time for the next general election. More to the point, nothing in the 2011 Act precluded a future repeal. Even if we assume that the referendum result would have bound the government of the day to implement AV – and to refrain from taking steps to repeal it – the result would have placed no such obligation on individual MPs; it would have been entirely possible for an MP (of any party) to introduce an Alternative Vote (Repeal) Bill, which could then go through the Commons on a simple majority vote. (Anyone who doesn’t think that electoral reforms can be made and then reversed hasn’t been paying attention to Italian politics.) The point here is the obverse of the principle with which I started. Governments make treaties, but Acts of Parliament are made by Parliament – and what Parliament makes, Parliament can unmake.

The constitutional significance of the use of a referendum, in this perspective, is very limited. The 2011 Act specified that a referendum should be held and that its result should determine whether the Act’s AV provisions were brought into force or repealed. The AV referendum itself was thus an event within a process fully specified, and circumscribed, by an Act of Parliament – an Act like any other, available to be amended or repealed by subsequent Acts. Certainly the referendum result was binding on the government, but it was binding in a very specific way, set out in detail within a Bill which was the subject of parliamentary debate and scrutiny. The referendum provisions did not determine the detailed wording of the Act, still less permit the executive to disregard it; they simply modified the procedure for implementing the Act to incorporate two alternative paths and an external ‘trigger’ event to determine the choice between them.

So there is nothing about the use of a referendum which changes the rules of the game, when it comes to legislation made in Parliament. Normally, a Bill is put before Parliament, debated and voted on, and – if not voted down – becomes an Act of Parliament and brings about changes to the law. All of this, including contested votes in Parliament, was true of the 2011 Act; the only difference was that when that Act changed the law, it did so subject to a choice between two possible changes (both specified in detail), that choice being determined by the result of a referendum. There was nothing in the whole process to challenge the primacy of Parliament: the British people chose, but they chose from two alternatives both of which had been minutely specified in advance, and both of which had gained the approval of Parliament.

But this is not the situation we’re currently facing. What about the situation where a referendum result is addressed, in effect, not to Parliament but to the executive – and where what is at issue is not domestic law but an international treaty? Before exploring this scenario, it’s worth recalling that the British system of democratic representation is parliamentary all the way down. When we talk of ‘the government’ taking action, we’re generally talking about action being taken by or on behalf of the Prime Minister – which is to say, the member of parliament who last formed a government, on the basis that she or he was best able to command a majority in the House of Commons. In countries with an elected Head of State, Presidents may have their own legitimacy and exert power in their own right, even to the point of being involved in government formation. It’s impossible to imagine Britain having a ‘non-party’ government – as Italy has done more than once – let alone such a government drawing substantial legitimacy from having been approved by the Queen. Government ministers – even the Prime Minister – are MPs like any other, and they can be held to account by their fellow MPs in Parliament. The executive is whatever remains when the domestic politics are stripped out: the Prime Minister and other key ministers acting on behalf of the country, plus the civil service supporting them. But ‘acting’ is the operative word: no Prime Minister ever ceases to be an MP and a member of a party, and the call of partisan politics can never be entirely silenced. (Winston Churchill, perhaps more than any other Prime Minister, encapsulates our contemporary idea of a Prime Minister acting on behalf of the country as a whole – but it was he who said, less than a month after VE Day, that a Labour government would inevitably bring in “some form of Gestapo”.)

It follows that, while referendums can make demands of the executive, they can only legitimately make a certain kind of demand – which is to say, demands with no possible ambiguity; demands specified to such a degree that nothing is required of ‘the government’ but to turn up and sign on the dotted line. As a rule of thumb, if the action being demanded could be carried out by a senior civil servant, then a demand is being made on the executive. It’s also worth remembering where these demands will have come from. In some countries – Italy again springs to mind – referendums have an independent democratic function and can be initiated at the grassroots level; once a certain level of support is reached, the referendum goes ahead with binding effect. (It makes the Number 10 ‘petitions’ site look a bit feeble.) In Britain, referendums must be backed by specific legislation, which – of course – emanates from Parliament. And if the legislation setting up a referendum is faulty, it’s up to Parliament to put it right.

So, there’s a difference between demands made to Parliament and demands made to the executive. As we saw earlier, if the executive signs up to the UN Convention On Undersized Oily Fish there is nothing, constitutionally, for Parliament to say about it. Equally, if a referendum on whether Britain should remain bound by the UN Convention On Undersized Oily Fish gave a majority for Leave, parliamentary debate wouldn’t come into it; the relevant junior minister or senior civil servant would just have to go and un-sign. But there’s also a difference between the executive and what we think of as ‘the government’. The government, in this sense, generally refers to the PM and Cabinet – a group of elected MPs. Constitutionally, however, MPs are just that – members of Parliament, who debate with and are held to account by their fellow members of Parliament. A demand to the executive which cannot be implemented by the executive – which has to be debated, developed, amended and refined by MPs before it can be actioned – is not a demand to the executive at all. It’s impossible to imagine a referendum on “leaving that treaty we signed on that Tuesday that time, you know, the one with the blue binding, or maybe dark green” – this wording would obviously leave far too much scope for government ministers to identify a treaty of their own choice, effectively frustrating the will of the people (or most of them) while purporting to honour it. But a referendum with precise and specific demands could be equally badly formed, if those demands couldn’t be implemented without political debate and extensive planning – say, “implement a flat rate of income tax and balance the budget”. In effect if not in form, this would also be a demand for ‘the government’, not for the executive: a demand, in other words, for MPs to work out how the stated demand could be met, consistent with other government commitments, and then to meet it. But if something is a matter for MPs and not for the executive, then it is a matter for Parliament. If Parliament is to be excluded, the demand needs to be phrased in a way that obviates the need for debate.

The point about the EU referendum is that it was a lot more like the ‘flat rate tax’ example than the ‘oily fish’ one. What distinguishes the result of the EU referendum from that of the AV referendum is not that the latter was legally binding and the former advisory; both bound the government to a course of action. (Although this binding should not be understood to be permanent; governments can and do change course, as we’ve seen – and, in any case, a government cannot bind its successors.) The key difference between the two is that the course of action to which the AV referendum bound the government was fully and precisely specified, leaving no more work for the legislature to do. The course of action to which the government was bound by the EU referendum is almost entirely unspecified. The referendum question, and in particular the 2015 Act, was badly drawn up – presumably because nobody responsible, the then Prime Minister included, imagined that ‘Leave’ would win. As such, the referendum was, almost literally, half-baked; it was released on the world in an unfinished state, and should go back to Parliament to be specified in the appropriate level of detail. This being impossible, it should be recognised that it is for Parliament to define ‘Brexit’, to plan out what will be involved in leaving the EU, and to publicise its benefits and costs.

At present, far from having its hands bound by the result, the government enjoys an unparallelled degree of freedom to define the result how it pleases, or not to define it at all – all the while refusing to grant Parliament any substantive oversight. Constitutionally, this is a monstrous power-grab – not by ‘the executive’ but by a group of MPs – and it should not be tolerated. Parliament needs to have a say on the referendum result, not because leaving the EU will mean that certain rights are forfeit, and not because the referendum was advisory, but simply because the referendum was a badly-formed question. It was posed in such a way that the implications of a ‘Leave’ victory, and the precise nature of a ‘Leave’ settlement, could only be worked out after the fact, in a political debate among MPs. But if such a debate is to happen – and it is happening already – then it must happen in Parliament, not between the Prime Minister and her trusties. We should not permit the ouster of Parliament.

Instructions for dancing (1)

I don’t think the Appeal Court’s ruling last week – on whether Labour’s NEC had the power to set a retroactive ‘freeze date’ for eligibility to vote in the leadership election, disenfranchising some 130,000 people who are otherwise members in good standing – was wrong in law, as Jeremy Corbyn suggested. But, by the same token, I don’t think we can say it’s definitely wrong to say it was wrong in law. (Bear with me.) There is no law that can only ever be read one way, no case that could only ever have been decided one way. The fact that the Appeal Court reversed the previous week’s court ruling isn’t a demonstration of corruption or incompetence, but one example of a perfectly normal phenomenon in law: one reading of a legal question being superseded by another reading.

This isn’t to say that judges are free to decide cases, and interpret statute, any way that they please; on the contrary, legal rulings – particularly at Appeal Court level – need to be, and are, justified by closely-reasoned argument. When one court’s decision gets reversed by another, it’s very rarely a matter of Judge B announcing “Judge A was wrong, I’m right”. Rather, the higher court examines the argument in which the first judge’s ruling is embedded and puts forward a ruling grounded in a better argument – better in the sense of greater logical coherence or comprehensiveness, greater appropriateness to the situation at hand, better fit to statute and existing precedent, lesser probability of creating problems in future cases, and so on. Sometimes the greater appropriateness/coherence/etc of the higher court’s ruling is glaring and unarguable; sometimes it’s more debatable, and in these cases the original ruling may eventually be reinstated – either through appeal to a yet higher court or, in the longer term, by the precedent set by the appeal being distinguished (i.e. disregarded) so consistently that it falls into disuse.

The key point here is that the question “is this ruling correct?” both does and doesn’t have an answer. An Appeal Court ruling gives a definitive statement of how the law should be interpreted, together with supporting arguments; the Appeal Court ruling is the law (unless it’s reversed by the Supreme Court), and the answer to the question of whether it’s correct has to be Yes (unless the AC has really screwed up). At the same time, the arguments supporting the AC’s judgment give one particular reading of the body of materials which the court had to work with, together with reasons for adopting that reading. It’s possible for a reasonable person to hold that, although the AC has ruled that reading A applies and consequently the law is X, it would have been preferable for the AC to choose reading B, in which case the law would now have been Y. And, as I’ve noted, it’s even possible for the law-making power of that particular ruling to be, in effect, eroded over time, if the judgments of future Appeal Court hearings concur in preferring reading B and law Y.

All this is by way of saying that the Appeal Court judgment in the Labour Party case (Evangelou v McNicol) doesn’t (in my view) correct anything unproblematically identifiable as an error in the original ruling; what it does is propose a different reading of Labour Party rules and – more importantly – a different way of reading the rules. The key passages are in clause 4.II of the rules, headed Procedural rules for elections for national officers of the Party, and specifically sub-clauses 4.II.1.A and 4.II.2.C.vii (!), which respectively read as follows:

The following procedures provide a rules framework which, unless varied by the consent of the NEC, shall be followed when conducting elections for Party officers. The NEC will also issue procedural guidelines on nominations, timetable, codes of conduct for candidates and other matters relating to the conduct of these elections.

and

The precise eligibility criteria shall be defined by the National Executive Committee and set out in procedural guidelines and in each annual report to conference.

A submission from the NEC to the appeal drew attention to 4.II.1.A and the NEC’s power to ‘vary’ whatever is written down in the rules. The claimants objected on the grounds, roughly speaking, that this had not been brought forward before, and their case might have been different if it had. The AC agreed, but with one significant qualification:

In our view, the only relevance of Chapter 4, clause II(1) is an aid to the construction of other powers and requirements in the Rule Book, which has to be construed as a whole.

This brings us to the two different ways of reading the rules which were put forward in the earlier ruling and the AC ruling. The difference hinges on how much importance is given to what’s not in the text – shared assumptions, common knowledge, established practice and so on. One approach – what you might call a purposive approach – would start from common knowledge about what the rules are for and what kind of association the Labour Party is, and skate generously over lacunae in the text. So, we know that the party is a democratic organisation which elects its leaders, and we know that the party’s stated policy is to engage all members in activity and participation in the party’s structures; does it matter that the rules don’t explicitly say that all members get a vote in leadership elections? Similarly, we know that there needs to be a date beyond which new members can’t join the party and expect to get a vote – even if you give a vote to members who join on the day of the election, you need to specify that – and we know that it’s highly unusual, based on past practice, to set a ‘freeze date’ as much as six months in the past: does it matter that the rules don’t explicitly say that freeze dates shouldn’t be set six months in the past?

A purposive approach would say ‘no’ to both of these questions; interpreting the rules, on this approach, is partly a matter of filling in the blanks by referring to the purposes of the rules, the purpose of the organisation and the way things generally work in practice. This is, broadly speaking, the line taken by the original court ruling. It’s worth saying, incidentally, that although a purposive approach in this case favoured the claimants (and by extension Corbyn), there’s nothing inherently radical about taking an approach like this; it could equally well be argued that the purpose of marriage is to support procreation, or that the purpose of trade unions is to promote industrial harmony, leading potentially to highly conservative readings of the relevant laws.

The alternative approach forswears any of this assuming and skating-over; sticking with the letter of the text, it arrives – where the text allows – at results which are clear, definite and hard to challenge. The Appeal Court took a textualist approach in its ruling, albeit a modified, and arguably incoherent, textualist approach (I’ll come back to this). Where the freeze date is concerned, the textualist approach can close the case by asking and answering two questions: Yes, the rules do provide for the imposition of a freeze date; No, the rules don’t state that a freeze date cannot be six months in the past; The End. On the question of whether all members should presumptively get a vote, the AC is unyielding: the rules don’t say that anywhere, but they do say that the NEC has the responsibility of defining “precise eligibility criteria”. A purposive reading would lean heavily on that word ‘precise’ – doesn’t that imply that broad eligibility criteria already exist and are known, even if they aren’t necessarily written down? The textualist reading – and the AC – says that the use of an adjective to qualify X, when X is named, isn’t nearly enough evidence for inferring the existence of a broader, unnamed form of X; that would be like saying that a shop sign advertising ‘high class menswear’ tells you that you can get lower-grade clothing further down the road.

So is this an open and shut case? Not quite. Remember that legal arguments are justified in part on the basis of their potential for creating clear and appropriate precedents; also, remember that I argued that the AC took a modified textualist approach. The key point here is the use they made of that clause 4.II.1. Discussing the rule book at the time of the challenge to Corbyn’s automatic inclusion on the ballot, Carl Gardner drew attention to this clause, pointing out that it effectively frees the NEC from the restraints laid down by its own rules: “The NEC could vary the procedure however it liked, so long as it was reasonable.” This is the ‘power to vary’ which the NEC brought forward – rather late in the day – in this case. There is – potentially at least – an argument here about whether this power to vary the rules simply gives the NEC the power to decide whatever it wishes and ignore the rules, or whether it only empowers the NEC to vary the rules in an individual case having stated that it is doing so; the former reading would be so broad as to make the rules meaningless, but the latter wouldn’t cover anything the NEC has done in this case.

But the point is moot; as we’ve also seen, the AC ruled that this clause would not form part of its decision – except insofar as it was “an aid to the construction of other powers and requirements in the Rule Book”. Now, that’s quite a big ‘except’. What it says is that the entire Rule Book is read from the starting point that the party has both rules and a rule-making body, and the rule-making body can legitimately step in any time the rules need amending or seem to be giving the wrong result. The gaps in the rules as written – gaps which any textualist reading will inevitably find – are plugged by reading the explicit power to vary as conferring an implicit, general power to vary, as and when necessary. In effect, it’s a textualist approach within an overriding purposive approach, and as such arguably incoherent – after all, do the rules say that 4.II.1 is an aid to the construction of other powers and requirements, or is it just one sub-clause among others? A thorough-going textualist approach would surely choose the latter.

The result, in the words of Corbyn’s campaign, is as “a ‘make it up as you go along’ rule”; I wouldn’t go that far, but this reading would certainly make it very hard to win any case concerning the rules against the NEC. Some will welcome this ruling for precisely that reason – the courts shouldn’t be getting involved in the internal workings of political parties; the NEC is an internal party body, and anything that makes it less likely that members will take it into their heads to drag it through the courts is to be welcomed. But I think they should be careful what they wish for. If the NEC is the rule-making body, and if the rule-making body has the power to vary the rules, what limits are there on the power of the NEC? The AC’s ruling addresses this question in terms of the discretion of decision-making bodies and the limits to such discretion. In the words of a 2008 case (Socimer):

a decision-maker’s discretion will be limited, as a matter of necessary implication, by concepts of honesty, good faith, and genuineness, and the need for the absence of arbitrariness, capriciousness, perversity and irrationality

Wednesbury [un]reasonableness is also invoked, if anyone was worried it wouldn’t get a look-in.

Now, these are very broad limits. Restrictions on eligibility to vote are arbitrary if there’s no good reason for the line to be drawn in one place rather than another; they’re capricious if the line is drawn chaotically or at random; they’re perverse if their disadvantages outweigh their benefits; they’re irrational if they have no rational justification; and they’re Wednesbury unreasonable if they are so unreasonable that no reasonable person acting reasonably could have chosen them. But that still leaves plenty of scope. As we can see, a six-month retrospective freeze date doesn’t qualify under any of these headings; how about twelve months? Or how about defining eligibility to vote in terms of attendance at party meetings? contributions to party funds? membership of an approved party organisation (e.g. Momentum)?

I think it’s a very problematic ruling, in short, and one which – given a Left-dominated NEC – may well come back to bite the very people who are now celebrating it. If they are celebrating it.

Next: what was going to be parts 2 and 3 of this post. Let’s face it, this is quite long enough as it is.

Counter-terrorism and counter-law

Quick one: here are the title, abstract and references of a paper I’ve just submitted for publication. (Fuller, Hegel and Bhaskar, together at last!)

Terrorism: that obscure object of counter-law

Contemporary counter-terrorist legislation is characterised by inchoate, preparatory and possession offences, which make it possible to convict individuals without proving that harmful acts have taken place. Following Richard Ericson, this tendency is analysed as a form of ‘counter-law’: law making designed to circumvent legal principles and erode the rule of law. It is argued that contemporary counter-law, unlike the Schmittian ‘state of exception’ model to which it is often related, is a purely conservative tendency, routing around the law to preserve order. The paper calls for counter-law tendencies to be identified, justified where possible and, if not justifiable, reversed.

Agamben, G. 2005. State of Exception. Chicago: University of Chicago Press.
Bhaskar, R. [1975] 2008. A Realist Theory of Science. Abingdon: Routledge.
Cameron, D. 2011. Statement to House of Commons. HC Deb 3 May 2011 cc 461, 473.
Cameron, D. 2013. Statement to House of Commons. HC Deb 3 June 2013 cc 1235, 1245.
Carter, H. 2011. “Jihad Recruiters Jailed After Anti-Terror Trial”. Guardian 9 September
Cole, D. 2001. “‘An Unqualified Human Good’: E.P. Thompson and the Rule of Law”. Journal of Law and Society 28(2): 177-203.
Crown Prosecution Service 2011. CPS Statement on R V Farooqi and Others.
Crown Prosecution Service 2012. The Counter-Terrorism Division of the CPS: Cases Concluded in 2011.
Dodd, V. 2014. “Soldier Jailed for Making Nailbomb Avoids Terror Charge”. Guardian 28 November.
Edwards, J. [no relation] 2010. “Justice Denied: The Criminal Law and the Ouster of the Courts”. Oxford Journal of Legal Studies 30(4): 725-748.
Elmer-Dewitt, P. 1993. “First Nation in Cyberspace”. TIME International 49.
Ericson, R. 2007a. Crime in an Insecure World. Cambridge: Polity.
Ericson, R. 2007b. “Rules in Policing: Five Perspectives”. Theoretical Criminology 11(3): 367-401.
Fuller, L. 1964. The Morality of Law. New Haven: Yale University Press.
Guinness, S. 2009. “The Universal Soldier”. Dublin Review 36, Autumn.
Hegel, G. W. F. [1820] 1991. Elements of the Philosophy of Right. Cambridge: Cambridge University Press.
Hodgson, J. and Tadros, V. 2009. “How to Make a Terrorist out of Nothing”. Modern Law Review 72(6): 984-1015.
Kostakopoulou, D. 2008. “How to Do Things with Security Post 9/11”. Oxford Journal of Legal Studies 28(2): 317–342.
Schmitt, C. [1922] 2004. Politische Theologie. Berlin: Duncker & Humblot.
Simmonds, N. 2007. Law as a Moral Idea. Oxford: OUP.
Waldron, J. 2008. “The Concept and the Rule of Law”. Georgia Law Review 43(1): 1-61.
Zubrinic, D. 2010. “481 Foreign Volunteers from 35 Countries Defended Croatia in 1991-1995”. Croatian World Network.

When is an extremist not an extremist?

Cross-posted from the blog of the Manchester Centre for Youth Studies, of which I am a member.

When is an extremist not an extremist? If violence is dangerous, is non-violence safe?

Earlier this year, Gavin Bailey and I organised a seminar (with support from the British Society of Criminology North-West) focusing on myths and realities of extremism and counter-extremism. The event was attended by academics from across the region, with lively debate on topics ranging from the “Trojan Horse” affair to the peace process in Northern Ireland. But what we kept coming back to was the government’s Prevent programme, particularly as it affects schools and young people.

Prevent is the counter-terrorist programme that counters extremism at the individual level. The aim is to prevent people from becoming involved in political violence by intervening ‘upstream’, at a point when they are beginning to develop extremist sympathies. Last year the government imposed a ‘Prevent duty’ on schools and many other institutions. This is a duty to “have due regard to the need to prevent people from being drawn into terrorism”; the scope of the duty “includes not just violent extremism but also non-violent extremism, which can create an atmosphere conducive to terrorism and can popularise views which terrorists exploit”. In other words, children and young people are now being monitored – by law – to ensure that they don’t express ‘non-violent extremist’ opinions, and inadvertently give popularity to views that terrorists may be able to exploit. We already have numerous examples of where this can lead: the ten-year-old interviewed by police after he wrote about living in a ‘terrorist house‘, the four-year-old whose mother was threatened with referral to social services after he mispronounced ‘cucumber’ as ‘cooker-bomb‘.

Here’s another story, involving a different kind of radicalisation. Aged 14, P becomes interested in Communism; he reads around a bit and decides that he is a Communist. Over the next couple of years, P develops a fascination with the guerrilla forces who were then fighting US-backed regimes in central America; he even daydreams about going out there himself. A teacher intervenes, but he isn’t discouraged. Wider reading persuades him that Communism isn’t the answer after all – only anarchism will do. He buys anarchist magazines and grows interested in the urban guerrillas operating in Italy and Germany at the time…

How does the story end? I’ll tell you how it ends: P (wannabe Communist, age 14) is now Phil (lecturer at MMU, age none of your business). It ends with P – me – going to university, writing a lot of poetry, getting a girlfriend, graduating, moving to Manchester and getting a job. My teacher’s intervention, incidentally, consisted of telling us it was nice to see a bit of Communism in class, even though he didn’t agree with it himself; everyone moves Right as they get older, he said, so at least some of us would still have somewhere to move to. (Thankyou, Mr Fairman!)

How many ‘P’s are out there now, inspired by jihadism instead of Communism, watching IS videos on Youtube instead of reading anarchist magazines? And how many of them would, left to themselves, leave it all behind them as a natural part of growing up? (My guess is: almost all of them.) Several participants in our seminar argued that Prevent discriminated against young British Muslims, putting thousands of innocent young people under surveillance for no good reason – and with the risk of creating alienation. But there’s a bigger question: should we be monitoring children for signs of extremism at all?

Kids break laws; offending is far more widespread for people in their late teens and early twenties than it is in any comparable age-group. If you think about it, this also tells us that almost all of those offenders grow out of it. There are many reasons for this – physical maturation brings more considered thought processes; leaving the parental shelter of childhood makes rebellion seem less attractive; legal adulthood opens up legitimate opportunities; long-term relationships give people a stake in society. And if this is true of crime – which can have life-changing consequences even for very young offenders – surely it’s all the more true of nebulous things like ‘views which terrorists exploit’ and ‘non-violent extremism’.

So I worry about the effects of Prevent on kids – not just four-year-olds who aren’t even talking about bombs, but teenagers who are.  I’d expect any class of 14-year-olds to contain several kids who would tell me (for example) that the CIA blew up the Twin Towers, a few who had watched IS videos, and at least one who sincerely believed in implementing Shari’a law in the UK – just as I believed in the dictatorship of the proletariat when I was that age. Under the law as it stands, unfortunately, I’d have a legal duty to report every one of them.

Kids should live their teenage years in safety, even (especially?) at school. Prevent is often justified in terms of safeguarding – as if being drawn into terrorism was the same kind of risk as being groomed for abuse – but trying to protect kids from thinking the wrong thoughts strikes me as precisely the wrong way to go. Young people need to be able to experiment – make a bit of noise, flare out, mess up and try something different. And, for some kids, political extremism is a great way to experiment – just as it was in my day.

Affordable reading

We interrupt your scheduled rants and grumbles for a quick commercial break.

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This summer, all Manchester University Press titles available at the Manchester University Press site have 50% off the price. And ‘all’ includes this one.

MWLP


Sympathetic Magic ‘May Be Real After All’ – Author’s Shock Claim

Normally this is priced at £65 – a price which will either make you think “huh, hardback pricing” or “sixty-what now?”, depending how familiar you are with academic publishing.

For now, it’s £32.50. Which is interesting.

I’m convinced there’s an audience for this stuff – not an audience like Gillian Flynn has an audience, but an audience nonetheless. There are people out there who are curious about Autonomia Operaia, the Metropolitan Indians, the “can’t pay? won’t pay!” period, the Red Brigades, all the (many) armed groups who weren’t the Red Brigades, and the relationships between all these groups and movements and the mainstream Left. My book has something to say about all of this, and I’ve always thought that an affordable paperback edition could find its readers.

We haven’t got a paperback, but what we have got – for the next couple of months – is a hardback edition going for £30-ish. I think that’s pretty affordable; it’s not as affordable as a vote in the Labour leadership election, say, but it’s certainly a lot more affordable than it was.

So: here’s some more about my book, including links to some reviews (“a serious piece of work that deserves a much wider readership” – Red Pepper).

Here’s the link to the page where you can buy it: ‘More Work! Less Pay!’.

Here’s the link to Manchester University Press.

And here’s the code to enter at the checkout: Summer16.

I don’t know how long this promotion goes on – the site doesn’t specify. This offer ends at the end of August 2016 – if you’re reading this in September or later, I’m afraid you’ve missed out. If not – and if you’re curious & have the odd thirty quid to spare – you might as well get in there now.

NB This is advertising – I will be paid something for every copy sold. But at this rate the royalty will, basically, be buttons, and I won’t see any of it unless/until enough is payable to make it worth MUP’s while to write a cheque. My main motivation is, quite honestly, to get the ideas out there.

Not writing

“I haven’t written a thing since last October!”

The thought came to me with an alarm-clock-like jolt: – yes, it really is that time (of year)! And what have I been doing?

When I was insecurely under-employed, I shared an office for a while with a rather senior but semi-retired Law lecturer. When lecturing ended after Easter, he was off, generally in a camper van: “I aim to spend the dark months teaching and then spend the light months travelling”, he told me once. If that were me, I thought at the time, I’d at least spend the light months writing

Here we are in the middle of June – pretty light – and I haven’t written a single damn thing since October. What have I been doing all this time? Teaching, obviously – this year just gone, I delivered all the teaching (and assessment) on two optional third-year units, along with sizeable chunks of a Foundation Year unit and an MA unit. Then there was marking, which remains the single most intellectually exhausting task I’ve ever carried out in my life. But none of that’s writing.

At least, it’s not writing writing. But some of it does involve writing, in the old-fashioned sense of forming words out of letters in a visual medium. Here’s a rough list:

Review of a new edition of a textbook: 1,000 words
Student references: 1,000
Small grant bid (successful): 2,000
PG Cert ‘reflective writing’ assignments: 8,000
Contribution to large grant bid (unsuccessful): 8,000
Assessment feedback: 144 essays + 40 exams + 6 dissertations = ~20,000 words
Emails: 1200 emails = ~60,000 words

Fair amount of writing involved in assessment, it turns out. (Not many words per essay, but you do have to choose the right ones.) And those emails! Never mind the constant drizzle of incoming email (28 yesterday, none of them from students); I’ve sent 1200 emails in those eight months. That’s 150 emails per month – five a day, seven days a week. For comparison I totted up the number of emails I’d sent from my personal account; the total was 150 for the entire eight-month period.

So it turns out that I have in fact been ‘active’, as they say, when it comes to putting words on screen (and in some cases even on paper). I’ve written around 100,000 words since last October – twelve academic papers’ worth. It’s just that three-fifths of them have been in emails – and most of the rest were ephemeral too.

Oh well, back to work.

Mostly harmless

At the LRB blog, Bernard Porter reminisces:

When I went up to Cambridge in October 1960, I found myself, for the first time, in the company of public schoolboys. … They were all very pleasant to me, despite my ‘Estuary’ accent and the fact that I had lived at home during my school years, and I made close friends with a number of them. But there was always this barrier – of adolescent experience – between us. They knew things that I didn’t (and vice versa? perhaps).

One thing was the proclivities of one of the fellows, the Rev. E. Garth Moore, notorious in public school circles as a sexual predator: they felt they needed to warn me, as a comparatively plebbish ingénu. ‘If Garth invites you to tea in his rooms,’ one of them told me on my first day, ‘don’t go. We know about him. You won’t understand.’ I think they were trying to protect me from embarrassment more than anything. It was kind of them. Anyhow, I did get the invitation, and politely turned it down.

This prompted a memory which I’ve never written about before. It wasn’t so much submerged, let alone repressed, as ignored; not in a locked cupboard of memory but in plain sight on a neglected shelf. I’ve never told anyone about it, but there’s a lot on those shelves that I’ve never told anyone about – the time the electricity meter broke, the time I nearly didn’t see Douglas Adams, the time we found the funniest line in Shakespeare… As a rule I haven’t told anyone because I didn’t think anyone would be interested. But maybe this one is worth bringing out.

So. Quite soon after I went up to Cambridge in 1979, I received an invitation to breakfast with Dr Pars, one of the college’s two resident retired fellows; the story was that the college had done away with lifetime residence and dining privileges several years earlier, but that Pars and one other don had hung on to theirs and were determined to exercise them to the last (as indeed they did). Dr L.A. Pars – Alan to his friends, ‘Pars’ to everyone else – was 83 at the time.

Pars, anyway, entertained me and another undergraduate to breakfast in his rooms; I gathered on the grapevine that he was working his way through the first year intake. It was a civilised but not particularly comfortable occasion. The other student was a woman – the college had just started admitting women – and Pars seemed very solicitous in pressing food on her (“I do hate it when people die of hunger at my breakfasts”); she was rather posh and was very gracious with him. I remember there was a fruit course, complete with appropriate cutlery; I ate a banana with a knife and fork, which was fun at least. Then there was a second breakfast invitation, for me and another undergraduate (another man this time); he was a third-generation student at the college, and Pars had known his father (and quite possibly his grandfather). This somehow led to a theatre outing for the three of us (Frederic Raphael’s From the Greek). When Pars sent me an invitation to afternoon tea in his rooms – just me this time – I thought things were looking up. The cakes were nice, the tea was good quality and Pars confided that he too preferred China to India; it was all very civilised.

In retrospect it looks very much like a selection process, but nothing of the sort occurred to me at the time. The breakfasts – and the play – were rather a bore, but having a (very) senior don take an interest in one and serve one China tea in his rooms… well, I was on the Left, but I wasn’t immune to this kind of thing; I’d read a bit of Dornford Yates in my youth and always thought it sounded like fun, the fox-hunting apart.

Then I got a letter from Pars, saying that he’d previously sent me an invitation to the Club (or possibly The Club) and been disappointed to have no reply – but, “as an invitation to the Club was not the kind of invitation one refuses”, he would expect me anyway. Date, time, place – it may even have been at the Master’s Lodge – guest of honour so-and-so, dress lounge suit. (I don’t know if the lost invitation was some sort of ploy or if Pars forgot to send it. There’s very little chance of it actually having got lost, en route from one side of the college to the other.)

Now, I’d never heard of The Club – I’ve never heard of it since, come to that – and had no idea what I was letting myself in for. But I thought it sounded appropriately privileged and inner-circle-ish, and I thought I’d give it a go; I was also slightly concerned about the potential ramifications of refusing, given that this was not the kind of invitation one refuses. My main worry was establishing what a lounge suit was, and – once I’d worked that one out – checking that I looked OK in one of the old suits my father had presciently given me before I went up. (I’d had them altered to fit my measurements, which at the time included a 28″ waist. I didn’t get much wear out of them.)

It was all very new and mysterious. I wrote, asking for advice, to a family friend named Keith – the son of a friend of my mother’s, to be precise. He wasn’t a personal friend – he was nine years older, a daunting gap at that age – but he’d graduated from the same college a few years earlier with a degree in archaeology, and had been very helpful when I was about to go up. I wanted to check out what I was getting into, and possibly show off a bit (“been invited to this thing called The Club, whatever that is…”). He replied, “I wouldn’t worry, Pars is pretty harmless these days.” Worry? Pretty harmless these days? I knew what Keith was – what he must be – referring to, but the thought had never crossed my mind until that moment; I hadn’t been worrying, but I was now (pretty harmless, these days?). What kind of ‘Club’ was this?

Keith was living at home at the time, in between research trips centred on shipwrecks, so I was able to ring him and ask what, precisely, he was saying about Pars. He laughed it off – oh, there were stories, you know… I didn’t know. Oh, you know… choirboys running screaming from his room in a state of undress… It’s all a while ago now – I mean, he’s an old man! I should go, it’ll be fine. Talking to Keith – who was a lovely bloke – reassured me greatly, even though he was actually confirming my suspicions. I rang my mother; she was rather brisk, and said that at this stage I was probably going to have to go, but pointed out that if necessary I could always make my excuses and leave.

So I went. It was a piano recital; there was assorted seating dotted around a rather large (and well-lit) room, there were twenty or thirty people, and I think there was wine. Looking around, I could see that the company was mostly male, but not entirely; some of my more lurid fears dropped away. I could also see that everyone else there was in their thirties or over; I was the only student. I didn’t recognise anyone, with one inevitable exception: Pars. He was sitting on a sofa, and patted the cushion for me to sit next to him. The pianist was introduced and began to play – some classical piece that I didn’t recognise. I noticed Pars nodding and tapping his foot to the rhythm of the piece; I thought this was surprisingly uncultured and concluded that he wasn’t really enjoying the music. Then I noticed his hand, which was on my thigh, just above my knee. He let it rest there for a while then squeezed, as if he was assessing the meat on a cow’s hindquarters. Then he patted my knee a couple of times, and left his hand there.

After the recital I made straight for the door. The Club seemed to be a perfectly innocuous cultural society, and perhaps it really was a privilege to be invited; I hadn’t actually been molested as such, either – nothing had happened. All the same, I had had my leg fondled in public – and, what was worse, Pars had effectively shown me off to the assembled company as his latest (potential) conquest. It was a deeply humiliating experience, and I wanted no more of it. Happily, Pars didn’t pursue me – literally or metaphorically – and I never had anything to do with him again.

I wasn’t angry, though, so much as ashamed; the indignity had been forced on me, but it felt as if the resultant shame was all mine. Shame led to guilt and self-reproach – why didn’t I say no? why hadn’t I said no before? why did he pick me – was there something about me? I told my parents and friends about what had happened (I don’t think I said anything to Keith), but the idea of reporting Pars in some way never occurred to me, and if it had I would have dismissed it. After all, what could I accuse him of? What had actually happened, really? No bones broken, eh? And I’d done all right out of it, hadn’t I? Poor old Pars, he’s harmless enough, it’s sad really when you think about it… So people would have said – or so we thought people would say – back in the 1970s. Even writing about it now, my initial impulse was to change names and details, to protect the… well. So hard to think of it as something that he should have been ashamed of, not me; so hard to think of it as something to feel angry about, not guilty.

Dr L.A. Pars – Alan to his friends – died in 1985, aged 89. The saddest part of the story is that he outlived Keith, the maritime archaeologist. Keith died in 1980, aged 29. He’d just surfaced from a dive in a Scottish loch and was standing in shallow water in a ‘hard’, pressurised diving suit, with the helmet off. A freak wave knocked him off his feet, the suit filled up and he couldn’t get back to his feet; he drowned in four feet of water. Although I never knew him well, I still think of Keith from time to time – I’ve never forgotten him and hope I never will. I’ve never forgotten Pars, either, but I live in hope.

 

Many a deed and vow

Getting to the march wasn’t easy. There was a long wait for the bus into town; when it came it stopped at every stop. After three or four stops a small boy, whose family had got on – complete with home-made placards – at the stop after mine, started tugging at his mother’s sleeve and asking urgently, Was that the first stop? Was that the first stop? Mum… Mum, was that the first stop? She tried to ignore him, possibly because (like me) she couldn’t work out what he was asking or why. Ignoring him didn’t help; fortunately, about five minutes later the bus stopped and we all had to get off. I measured the distance we had to walk to get to the march afterwards; it was the best part of a mile.

The route of the march itself was a mile and a half, give or take; it took us about an hour to get round, ‘us’ meaning me and the people I happened to be walking alongside. There was a contingent there from my local Labour Party, which – having just joined – I was hoping to find, but I never saw them. More by luck than judgment I’d ended up towards the head of the march. At one point, feeling a bit exposed out at the front, I stopped and let the march go by for ten minutes or so before rejoining it, but even then I was well up towards the head of the march, relatively speaking. When I decided to knock it off and go home, two hours after I’d first got to the end of the route, there were still people arriving. I stood and watched them for a while, thinking I was seeing the last few stragglers; a knot of people representing the chiropodists’ and podiatrists’ union seemed to be bringing up the very end of the march, which seemed fitting. Then I noticed, a hundred yards behind the podiatrists, a group of a couple of hundred marching under the usual assortment of union and SWP placards, with no indication that they were the last. I gave it up and went for a drink. I don’t think anyone knows how big the march was; I’d be surprised if it was less than 100,000 strong (the police estimated 60,000).

The march itself was orderly and peaceful, whatever else you may have read; things didn’t kick off, nobody got kettled or baton-charged, and hardly anyone even got arrested (there were four arrests – out of 60-100,000 – including one for being drunk and disorderly). It wasn’t a fun march, though; it didn’t have a carnival atmosphere, despite the entertainments laid on along the way (here a performance artist, there a samba band, and at the end of the route an extraordinary band playing a fusion of jazz-funk and traditional folk). This was partly because of the purpose of the march, which was antagonistic: it was a march against austerity and against the Tories, whose conference in the middle of Manchester has caused serious inconvenience to a lot of people (and bear in mind that there hasn’t been an elected Conservative councillor in Manchester since 1996, or a Conservative MP since 1987). The mood was defiant, and not defiant in a playful, “Tubthumping” kind of way – more a matter of defying authority, and defying people who think they’ve won. Pig pictures, slogans and masks abounded; one woman walked alone in a full-face pig mask, carrying a placard saying “I prefer apples”. (Think about it.) And this level of ridicule goes along with the mood of defiance – as if to say, why should we listen to you? The old “they say cutback we say fightback” slogan got an outing near where I was walking; the chanting was a bit feeble, but ‘fightback’ was very much the way people seemed to be feeling. This was particularly evident when we got close enough to the conference centre to make some noise in its general direction. For some people all the noise-making was probably energising, but I have to say I found it all a bit wearing; if I never hear a vuvuzela again I’ll be heartily grateful.

Back in the 80s, I remember the BBC taking notice of the peace movement (then in its second prime) by broadcasting a god-awful drama called “The Big March”. The big march in question was ostensibly a peace march, but what were the real motivations of the shadowy left-wing group organising it, eh? What indeed. In one scene the central character – a sincere but ill-informed peacenik – is marching (on a smaller march) alongside a seasoned veteran who periodically calls out “It’s coming yet!”, to cheers and echoing shouts from his fellow activists. She, the peacenik, naturally asks him what it is that’s coming yet, and what it has to do with getting rid of nuclear weapons. He launches into an explanation of how he and his co-conspirators are working within the peace movement for a much bigger goal: the goal of realising the unfulfilled revolutionary hopes of, er, Robert Burns:

For a’ that, an’ a’ that,
It’s coming yet for a’ that,
That Man to Man, the world o’er,
Shall brothers be for a’ that

Terrifying stuff, I think we can all agree. But probably not written by anyone who’s ever been on a march, and not only because slogans aren’t usually written in code. Perhaps I was just in a particularly disorganised part of the march, but the chants and slogans of my fellow activists were more reminiscent of that kid on the bus: I struggled to hear what they were saying, and then struggled to work out why. (What was that – “whose speech? free speech!”? No, hang on – “whose streets? our streets!”. Well, OK.) It just wasn’t that unified; there wasn’t a single revolutionary message that brought us all together (although I have to admit “Tory scum” was pretty popular).

If we weren’t being ruthlessly welded into a weapon of subversion, we didn’t conform to the opposite stereotype either; we weren’t a lawless rabble (although some of the dancing to that folk-funk band was pretty out there). If you’ve followed reports of the march in the press – never mind Twitter – you’ve probably formed the impression that spitting, egg-throwing and close-range intimidation was very much the order of the day. It wasn’t; these stories are so unrepresentative of the march as to be basically false. It’s like the old ‘black sheep’ joke: don’t say “all left-wing protesters are thugs”, say “in one section of one march there were a number of protesters, who may or may not have been left-wing, one of whom spat on Michael Crick at least once”.

Let’s be clear: there was no great failing in the march that ‘allowed’ those individuals to ‘become the story’. On one hand, what is the march supposed to have failed collectively to do? I can’t imagine any feasible mechanism that could have stopped those people from joining the march (as I did), or from doing what they did once there. On the other – more important – hand, that story didn’t just happen: it was written, by people who chose to write it that way and knew (or could have known) that they were grossly misrepresenting the march. And there are reasons why they did this. Often, I think, the reason why right-wing journalists write about violence and thuggery on the Left is that, when they look at the Left, that’s what they see. Whether violent acts are widespread or sporadic, major or minor, real or very largely imaginary is secondary: any actual violent incidents are simply outward confirmation of the violence inherent in the Left. An extreme example: in the late 90s I was on the Steering Committee of the Socialist Society, which involved attending monthly meetings in London. The meetings weren’t eventful; 10-15 people would turn up, we’d get through the agenda by lunchtime, and sometimes someone would give a paper or there’d be a guest speaker. I was pretty chuffed to have got on to the Steering Committee (although it wasn’t actually a contested election) and, before my first meeting, made the mistake of telling someone at work about it. On the Monday morning, another of my colleagues greeted me: “Have a good time in London? Kick many coppers, did you?” I was startled and genuinely confused. “Did you kick many coppers?” she repeated, as if for the hard of hearing. “On your demonstration.” I explained earnestly (clearly there’s been some misunderstanding) that there hadn’t been a demonstration, I’d gone down for a meeting… “Yeah, your socialist meeting – same thing. That’s what you lot do, isn’t it?”

Well, no, it’s not; we know that, and (judging from their firm but low-key presence, and those four arrests) the police know it too. But the Right believe it is, and the Right will always believe it, or affect to believe it. After all, what incentive have they got for not believing it? Define violence as illegitimate – as the mark of political illegitimacy – and then find reasons to denounce the Left as violent: there’s no reason this should ever stop working for them. And the way it works is to put us on the back foot, set us wringing our hands and writing earnest articles about how this sort of thing has no place on the Left. It’s divisive, demobilising and above all endless: they will always come back for more.

The ultimate example of this (so far) is the Tweet in which Dan Hodges announced

The fact delegates to the 2015 Conservative party conference can’t enter without feeling intimidated is a national disgrace.

Now, work with me here: what’s Hodges actually saying? Is protest illegitimate? (Not Hodges’s word, but if something’s a ‘national disgrace’ I think we can assume that whatever brought it about isn’t a legitimate thing to do.) Surely not. Might different considerations apply to protest in large numbers? I think most of us would be reluctant to go down that road, if only from familiarity with the sorites paradox. Is protest only legitimate if it’s targeted at the people directly responsible for the problem in question (viz. the government) rather than ordinary decent people with no direct responsibility (viz. Tory party members)? That won’t work, because the problem people were protesting about was, precisely, the power and prestige of the Conservative Party, in which individual members have a small but definite stake. (If Labour were in power and doing things many people disagreed with, I’d take “Labour scum” as fair comment – it’d be unwelcome and hurtful, clearly, but I’d know where it was coming from and accept that I’d laid myself open to it.) Is protest not legitimate if it hurts people’s feelings? Is it not legitimate if anyone hears? Or is it just flat-out not legitimate, what with the Tories having won the election?

Hodges’s position seems to echo Peter Ramsay’s theory of ‘vulnerable autonomy’, which Ramsay used to explain the rationale of the ASBO; the idea seems to be that making somebody feel unhappy is itself an illegitimate exercise of coercion, against which the previously-happy person has the right to be protected. Carried into politics, and into the field of political protest in particular, this essentially amounts to redefining speech as violence – and, as we’ve seen, violence is the border-post of political illegitimacy, the point where politics ceases. These are deep and dangerous waters, and I recommend my friends on the left to get out of them pronto.

This was a big march; it was a big, well-organised march that went off peacefully; it was a big, successful march. That’s what we need to hold on to, and the message we need to put out. It’s not as if a march like that is going to get a fair depiction in the press or on the BBC. Not in the short term, anyway – in the longer term I’m hopeful, despite all the evidence. It’s coming yet for a’ that.

TCM 4 – This statement is unreliable

Apologies to anyone waiting for the Scottish post, but this came up on Twitter last night and I wanted to write it up properly.

Peter Jukes in the Indie:

Jeremy Corbyn was wrong to even suggest on Tuesday that Tony Blair could face war crimes trials for [Iraq] … Many argue, quite cogently, the Iraq invasion was “illegitimate” without a second UN Security Council vote. But to my knowledge this is not the same as being “illegal” in accordance with any war crimes convention in international law. (Kofi Annan indicated in 2004 it “it was not in conformity with the UN charter” but that is a very different thing.)

There’s a certain amount of double-talk going on here. Here’s Corbyn suggesting that Blair could face war crimes trials:

Asked on BBC Newsnight whether Blair should stand trial on war crimes charges, Corbyn said: “If he has committed a war crime, yes. Everybody who has committed a war crime should be.” … He said: “It was an illegal war. I am confident about that. Indeed Kofi Annan confirmed it was an illegal war and therefore [Tony Blair] has to explain to that. Is he going to be tried for it? I don’t know. Could he be tried for it? Possibly.”

And here’s Annan on illegality and non-conformity with the UN Charter:

In an interview … he was asked outright if the war was illegal. He replied: “Yes, if you wish.” He then added unequivocally: “I have indicated it was not in conformity with the UN charter. From our point of view and from the charter point of view it was illegal.”

It seems to me that the distinction between “illegitimacy” and illegality is a bit of a red herring, as is the insistence on talking in terms of “war crimes”. The jurisdiction of the International Criminal Court formally covers both jus in bello (under the heading of crimes against humanity) and jus ad bellum (the crime of aggression); however, the crime of aggression remains undefined and consequently can’t as yet be referred to the Court. Blair could conceivably be referred to the ICC for illegalities in the conduct of the Iraq invasion, although this seems highly unlikely for several reasons. What can’t happen, pending amendments to the Rome Charter, is an international prosecution for initiating the invasion. And this is what’s chiefly at issue when we’re talking about Corbyn’s position on Iraq: the legality of the invasion in international law is the question on which Corbyn is clearly and unequivocally on the other side of the argument from Tony Blair, Peter Goldsmith, Burnham, Cooper, Kendall et al.

In discussion on Twitter sparked by the Jukes article, Carl Gardner cited this 2010 post in which he came down on the side of the invasion being legal. It’s detailed, closely-argued and well worth reading (as Carl’s posts generally are), although I don’t agree with its conclusions (as I generally don’t). For the purposes of this post I want to focus on a minor point made in the course of Carl’s conclusion:

I agree with Lord Goldsmith’s advice of 7 March 2003, first that the safer course would be to seek a second resolution authorising force; the UK did that, of course, and failed; and second, that the “revival” argument, that further material breach by Iraq would revive the authorisation of force in UNSCR 678, is a reasonable one. I’d go further, in fact: I agree with what Lord Goldsmith seems to have concluded a few days later – that the “revival” theory is the better view, to be preferred to the alternative put forward by Elizabeth Wilmshurst, that resolution 1441 clearly required a further decision by the Security Council. She told the Chilcot Inquiry that the wording of resolution 1441 had this effect … that was what made the position different from 1998 [when the US and Britain bombed Iraq], when as I’ve said she had agreed with the revival theory (though she now thinks it was “strained” even then).

In any event, the fact that Elizabeth Wilmshurst’s change of approach since 1998 turns on a detailed construction of 1441 shows the question is not an easy or obviously one-sided one. The fact that two views are possible is enough, in my view, to reject wild, overblown and rhetorical claims that Tony Blair is a “war criminal”, for example.

Carl’s 2010 argument – the minor one at the end of this quote – and Peter Jukes’s argument about what Corbyn should and shouldn’t have said have something in common. As we can see, Corbyn didn’t claim that Blair should be seen as a war criminal – he didn’t take any position on that question at all. What he didn’t do, however, was rule it out: he included Blair among those people who could, in some imaginable real-world circumstances, be prosecuted for war crimes. I don’t think it’s over-reading to say that this – the non-dismissal or failure to exclude – is the ‘suggestion’ which Jukes and others find objectionable. Conversely, Carl in 2010 pointed out – correctly – that there is more than one view on the relationship between UN 678 and UN 1441, and between the pair of them and the Iraq invasion itself; he then argued that this plurality of views was sufficient to rule out the possibility of claiming that Blair was a war criminal. But surely this doesn’t follow: if there are multiple ways in which reasonable people can read the materials that determine whether the invasion was legal, presumably one of those views may be that it was illegal and should be prosecuted as soon as amendments to the Rome Charter make it possible. (At which point claims that Blair was a war criminal would be improper, but only because the matter was sub judice.)

What Carl’s post expresses here, it seems to me, is something similar to Jukes’s objection to Corbyn. The argument (on this point) is not that labelling Blair as a war criminal is incorrect, but that this view should not be held by anyone: this position should not be denied but excluded, dismissed, ruled out of consideration. And it should be excluded because it’s “wild” and “overblown”; it doesn’t have a place on the spectrum of valid and reasonably-held beliefs. Even Corbyn’s mild and measured comments, for Jukes, were a dangerous diversion from how politics should be conducted. It’s as if the expression of some beliefs is, in itself, hostile to all other beliefs – as if some beliefs could not be expressed within a debate but only by heckling.

What’s going on here? Let’s take a quick detour into the philosophy of language. (Don’t ask why I’ve been reading philosophy of language.)

In ordinary usage we tend to think that there’s no difference between making a statement S and making the quotative meta-statement “S is true”: the same information is conveyed by the two statements “There is snow on the ground.” and “If somebody says ‘there’s snow on the ground,’ they’re telling the truth.” But this leads us into some difficulties. Say that your friend Jo asks about your mutual friend Harry’s dog: is it well? You’d heard that Harry was getting a dog but don’t know anything about it; you want to change the subject, so you give what seems the most acceptable answer: “It’s fine, Harry’s dog is fine.” Later you discover that Harry had planned to get a dog but thought better of it and got a cat instead. So there is no dog.

Question: were you telling a lie when you asserted, on no evidence, that Harry’s dog was in good health? Logically speaking, you weren’t. Your assertion wasn’t true, but neither was it false: “Harry’s dog” doesn’t refer to anything in the world, so statements about it can’t be either true or false (since they can never be either proved true or falsified). (Compare “Noah’s Ark was painted in bright colours”.) “Harry’s dog is fine” is neither true nor false. But what if you’d thought Jo looked suspicious and added “I’m telling you the truth, Harry’s dog is fine”? That statement (or meta-statement) would have been false, because the original statement isn’t true (neither is it false). On the third hand, if instead of asserting truth you’d denied falsehood – “I’m not lying, Harry’s dog is fine” – that statement would have been true, for much the same reason.

We seem to have a paradox: we started from the position that (1) “Harry’s dog is fine”,  (2) “It’s true that Harry’s dog is fine” and (3) “It’s not false that Harry’s dog is fine” were logically identical, but we’ve identified conditions in which (3) is true and (2) false while – or because – (1) is neither true nor false.

One way to resolve it would be to look a bit more deeply into our ordinary-language understanding of the meanings involved. Why, after all, would anyone actually say “I’m telling you the truth, Harry’s dog is fine”? Perhaps, rather than being a meta-statement referring to the statement following it, the first clause is doing a separate job, asserting the trustworthiness of the speaker and the speech-act rather than the truthfulness of the statement: perhaps what this speaker is actually saying is “you can trust me to be telling the truth when I make the following statement”. In this case the paradox dissolves: under conditions where (1) is neither true nor false, the distinct statement (2) is false (because it’s asserting that the speaker is stating the truth when asserting (1)), while (3) is, rather sneakily and pedantically, true (because it’s asserting that the speaker isn’t stating a falsehood when asserting (1) – as indeed (s)he isn’t & can’t be, given that Harry’s dog doesn’t exist).

What’s all this got to do with Corbyn, Jukes, Gardner and Iraq? Carl’s post is a good starting-point. On the main point at issue – the legality of the invasion – he made four key assertions: that

  1. whether or not the invasion was legal depends on the text of two UN resolutions, the relationship between them and how these things are interpreted;
  2. there is room for different and conflicting interpretations;
  3. he personally endorsed an interpretation which concluded that the invasion was legal (“I agree with what Lord Goldsmith said was the legal justification for war”)
  4. “The invasion of Iraq was lawful”

To put it more schematically:

  1. There is an agreed set of facts on the basis of which statements can be made
  2. Both statement S and its negation not-S can be argued on the basis of those facts
  3. On the basis of those facts, I believe that S is preferable to not-S
  4. S.

I’m not criticising 2010-Carl for making the leap from the meta-statement at 3 to the statement at 4 – quite the reverse: I think this is an exemplary piece of unpacking. It’s reminiscent of what we do when we read a Supreme Court judgment: we see an uncontentious stock of facts and precedents construed in two or three different ways and an authoritative reading established partly by consensus and partly by majority vote. Once the decision is made, after multiple more or less plausible readings have been set out, the state of the law is what the SC majority concluded it to be: we proceed from “S and not-S are both arguable” to “S is preferred” and thence directly to S. And similarly with Carl’s assessment of the rival arguments about Iraq, his statement of his preferred alternative and his factual assertion that the invasion was lawful.

The question then is whether this is a game that only lawyers can play – or whether everyone, having made a factual assertion, is capable of clambering back down the ladder from 4 to 3 and back to 2. I think there’s a danger of a lack of charity in the assumption that we hold our beliefs lightly and on the basis of a preferred interpretation of agreed facts, whereas our opponents have positions that they maintain to the exclusion of all others. There’s also, perhaps, a danger of vanity in the assumption that we hold all our beliefs lightly. Related to this last point, I wonder if ‘unpacking’ is the right metaphor. If “S is true” is a different statement from S, presumably the same can be said of “I believe that S is true on grounds which I am prepared to justify logically”. However we arrive at our beliefs, “belief that S” once established is a distinct mental attitude – not an epiphenomenal aspect of a more fundamental “preference for the justificatory grounds for a belief that S“.

So I can’t agree with Carl: to say that Blair is a war criminal is not, in and of itself, to say that no other readings of the facts are possible or to deny that one has reached that opinion by selecting a preferred interpretation of the facts. A fortiori, Peter Jukes’s indignation at Corbyn’s mere failure to rebut the suggestion that Blair might be considered a war criminal is misplaced. (For what it’s worth, I think Corbyn handled the questioning rather well. If the Rome Charter is revised, Blair could be prosecuted by the ICC for waging aggressive war. I doubt we’ll ever see it, and if we do I would expect him to be found not guilty. But ‘possibly’ is about right.)

I think all this relates to a broader point about the Corbyn campaign. Let’s say that the spectrum of acceptable debate runs from position -3 (left of centre) to +3 (right of centre); if I assert position -5, those who hold +1 or +2 (or even -1 or -2) are less likely to argue with me than they are to dismiss my position and demand that I dismiss it too. And if, meanwhile, the centre has been shifting – so that today’s -5s are the -1s or +1s of twenty or thirty years ago – a calm and reasoned statement of -5 is liable to evoke a lot of suppressed demand in some quarters and rattle a lot of cages elsewhere. I think it’s largely because Corbyn’s campaign puts back into circulation positions that have simply been excluded – rather than being controverted or even challenged – that it’s causing such consternation on the Right and showing such power to mobilise on the Left.

 

 

 

Dangerous decisions

Once more on Moohan and Unison (no 2).

In my post on the Moohan ruling last year, I criticised the Supreme Court’s application (or rather refusal to apply) a putative common law principle of universal suffrage. My comment was critical of three opinions which dismissed the possibility of applying any such principle, pointing out that they did so for different and unsatisfactory reasons.

The roadblock in the way of asserting common law rights is not political but statutory, even constitutional: the idea of statute law as bedrock runs through all three comments, and its effects are, if possible, even more conservative than outright deference to the executive would have been. The trouble is, common law rights would mean nothing unless they could be asserted against statute. Lord Hodge, to his credit, recognises that there may be situations in which common law rights must be asserted against constitutionally legal decisions, but he defers any such activist role for common law lawyers to a distant and catastrophic future – just as Lady Hale relocates the common law to a distant and almost pre-legal past. From this decision there seems little hope of the common law playing any sort of safeguarding role in the present tense, as ECHR jurisprudence currently does.

As for Unison (no 2), this concerned the justifiability of the imposition of employment tribunal fees, on grounds other than cost saving (after all, if the government stops funding anything it will be able to show a cost saving, at least in the short term). (Strictly speaking, the issue was whether the benefits of the change could outweigh the potentially discriminatory effects of the imposition of fees, given that women are more likely than men to find the fees unaffordable. Half a cheer for sexism: a universal detriment wouldn’t be actionable in this way – or, perhaps, at all.)

The court accepted the Ministry of Justice’s argument that the new fees regime could be justified on the grounds of promoting appropriate behaviour change. I wasn’t convinced:

The argument is that the fees will change some groups of clients’ behaviour: those claimants with conciliable claims will be encouraged to have them conciliated, while those with unmeritorious claims will be deterred from proceeding and will sling their hook. … But the fee regime is, of its nature, imposed on claimants in general. … Perhaps we could justify treating all claimants as no-hope chancers, on the basis that the good claims would stay in the system; perhaps we could justify treating all claimants as mediation clients gone astray, on the grounds that unmediable claims would find their way back to court. We certainly can’t justify treating all claimants as both these things – and, even assuming that both these groups exist in significant numbers, it’s hard to imagine any possible package of incentives which would address these two groups and nobody else.

In fact these aren’t two distinct objectives but one objective with two benefits. Given the lack of any possible mechanism to single out weak or inappropriate claims, and the lack of any evidence as to the prevalence of such claims in the system before the introduction of fees, the Lord Chancellor’s aim must have been – at best – to reduce the number of weak and inappropriate claims by means of an overall reduction in claims. The objective, then, is to divert people out of the system; the benefits are that these two groups, to the extent that they exist, will be dealt with more appropriately.

In short:

By introducing a fee where none existed before, the government has restructured the terms on which people decide whether or not to go to a tribunal, with the express intention of discouraging them from doing so.

In other words, the court allowed itself to be distracted by incidental benefits of the change – and I don’t deny the possibility that it will discourage some unmeritorious claims and some claims which would fare better in mediation – from the overall reality of a straightforward, and fairly overt, attack on citizens’ access to justice.

Why were these decisions unfortunate? (And why do I say ‘unfortunate’ rather than ‘wrong’?) Essentially, I would argue that they both evince a cramped and timid conception of the relationship between the law, the courts and the government of the day. This timidity – in terms of both deference and lack of imagination – would be regrettable at any time. At a time when the government is openly attacking key elements of the rule of law, and doing so with both imagination and boldness, it is dangerous.

Has the election changed matters? Has the replacement of the appalling Grayling by the emollient Mr Gove improved matters? We shall see. But I don’t believe that Gove cares any more than Grayling for the kind of people whose rights tend to be vindicated by European Convention rulings, i.e. those who don’t have the power, wealth or connections to vindicate them any other way; and I certainly don’t believe that Gove is a secret enthusiast for higher public expenditure. The tone is different, but the battle is going to continue. Better – more assertive, more empowering – decisions than these are going to be needed if the rule of law is to retain any meaning at all.

NB According to Charon QC (no less) the Unison case has its second hearing this month (June 2015); I can’t find any more information about it online, so I assume it hasn’t happened yet. I shall hope for the best and fear the worst; at least that way I’ll be covered.

Play us out, Phil:

WIP on the RoL

Here are the abstracts of a couple of short papers I’ve presented recently, the first at the Understanding Conflict conference in Bath, the second at a workshop on critical terrorism studies at the British International Studies Association. I don’t think anyone was there for both – which is just as well, as there is a certain amount of overlap.

GOVERNING VIOLENCE: RULE OF LAW OR RULE BY EXCEPTION?

In a 2014 case, an English Defence League member found in possession of a home-made nail bomb was given a two-year sentence for possession of explosives. Terrorism charges were not brought, on the grounds that “it was never [his] intention to use the device for any terrorist or violent purpose”. The arbitrariness of this decision is as striking as its leniency towards an individual who does not fit the received profile of the violent (Islamic) extremist. This paper will argue that decisions such as this are not aberrations: counter-terrorist legislation since 2000 has been designed to be used on a discretionary basis, not as a set of standards to be applied uniformly but as a tool for the criminalisation of selected suspects. This discretionary mindset is related to the discourse of ’emergency’ surrounding the concept of terrorism. Terrorists – and, more recently, ‘extremists’ – are framed as inherently unacceptable to the democratic state: not potential entrants to the political sphere, but threats to democratic politics itself. Hence it is appropriate to respond to the urgent threat of ‘extremist’ disruption with emergency counter-measures which go beyond the law – or which stretch the law to the point where it will accommodate arbitrary official action. The danger posed by this approach is not merely the instrumental and discriminatory use of the law, with predictably divisive effects. The larger danger is that, in the zone of exception created by counter-terrorist legislation and policing, the rule of law – the law as a systematic, comprehensible and followable set of norms, applicable to everyone – will no longer apply. If the use of political violence and the expression of ‘extremist’ views are no longer governed under the law, what are the implications for the public space of politics?

And:

TERRORISM: THAT OBSCURE OBJECT OF COUNTER-LAW

The threat of terrorism – and, increasingly, the mere threat of ‘extremism’ – is typically framed as so urgent and so extreme that it is appropriate to respond with emergency counter-measures which go beyond the law – or which stretch the law to the point where it will accommodate arbitrary official action. On one hand, individuals suspected of extremism are subjected to coercive and unaccountable interventions, without any allegation of illegal activity and outside any lawful accountability. On the other, counter-terrorist legislation is increasingly characterised by preparatory and inchoate offences, to that point that an individual accused of terrorism need only be found guilty only of an ‘ouster’ offence, potentially provable against a wide range of people. This paper argues that the proliferation of anti-terrorist ‘counter-law’ – law-making and policing which undermines the principles of the rule of law – offers a new approach to the vexed question of defining terrorism: perhaps ‘terrorism’ is, first and foremost, that which justifies counter-law. This argument opens up the possibility that critiquing counter-terrorism from a ‘rule of law’ perspective may have surprisingly radical effects, undermining the claims to exceptional action and discretionary enforcement which are fundamental to today’s discourse of terrorism and extremism.

And here are the references (I’ve merged the two lists).

Blair, A. (2004), speech given in Sedgefield, 5 March
Brodeur, J.-P. (1983), “High policing and low policing”, Social Problems 30(5)
Carter, H. (2011), “Jihad recruiters jailed after anti-terror trial”, Guardian 9 September
Crown Prosecution Service (2012), The Counter-Terrorism Division of the CPS: Cases concluded in 2011
Dodd, V. (2014), “Soldier jailed for making nailbomb avoids terror charge”, Guardian 28 November
Ericson, R. (2007), Crime in an insecure world
Fuller, L. (1964), The morality of law
Home Office (2008), From the neighbourhood to the national: Policing our communities together
Neocleous, M. (2006), “The Problem with Normality: Taking Exception to ‘Permanent Emergency’”, Alternatives 31
Pantazis, C. and Pemberton, S. (2009), “From the ‘old’ to the ‘new’ suspect community”, British Journal of Criminology 49(4)
Schmitt, C. (2004 (1922)), Politische Theologie
Simmonds, N. (2007), Law as a moral idea
Thomas, P. (2015), “Prevent and Community Cohesion in Britain: the worst of all possible worlds?”, in Baker-Beall, Heath-Kelly and Jarvis (eds), Counter-Radicalisation: Critical perspectives
Waldron, J. (2008), “The concept and the rule of law”, Georgia Law Review 43(1)

A proper paper will follow – possibly two; I think there may be a paper just in a discussion of Ericson’s idea of counter-law – law deployed instrumentally with the specific purpose of undermining legal standards and protections. Ericson never developed it theoretically in any depth – he never had the chance, even if he might have wanted to – and, perhaps as a result, subsequent discussions of the concept have been fairly superficial and sometimes (I think) misleading. There’s definitely some inter-disciplinary bridge-building to be done between ‘counter-law’, on one hand, and ideas about the rule of law on the other. (Brodeur and Fuller, together at last!) On the other hand, I’m becoming less interested in the ‘state of exception’, and in Agamben and Schmitt generally; I think the critique of the over-use of the ‘exception’ advanced by Neocleous, Miéville and others is powerful, even though – as the references above will indicate – I don’t share their post-Critical Legal Studies assumptions, or their scepticism about the rule of law in particular.

Just us?

Here are the opening and references of another paper I’ve recently submitted, coming at the whole ‘governance of problematic behaviour under law’ question from a different angle. (On reflection, ‘problematic’ may be redundant – what other kind of behaviour would you want to govern? Answer: hmm. File under “questions, big, deceptively”.)

Where, how, who? Some questions for restorative justice

The adoption of restorative justice in Britain has expanded greatly over the last decade, both in and outside the criminal justice system. Restorative justice has been seen as offering an unusual combination of benefits. It has appealed simultaneously to advocates of an enhanced role for victims in criminal justice, to believers in reducing reoffending by facilitating desistance, and to police forces committed to resolving problems of low-level disorder. It also, crucially, offers to deliver results in all these areas more quickly, less contentiously and (perhaps most important) at much less cost, in comparison to the conventional functioning of the criminal justice system.

While this situation presents opportunities for ever-increasing numbers of people to benefit from restorative justice, it also prompts some questions. These are

– Where does restorative justice fit within the criminal justice system?

– How does restorative justice achieve its effects? and

– Who is the beneficiary of restorative justice – and how can the process be managed so as to benefit both victims and offenders?

This paper will argue that the answer to the third question – which also addresses the first two – can be found by adopting a regulatory perspective, and in particular by foregrounding concepts of interdependency. The needs of victims and offenders, while they may both be met through restorative justice, are so different that a process designed to meet one may be oppressive and unjust to the other. The participatory equality on which just outcomes depend requires the articulation of relations of interdependency between participants.

The penultimate sentence there is key – there’s probably scope for another paper just developing that.

The references are a bit more predictable than for the previous paper, if you know the area, but there are a couple of less obvious ones in there:

Ashworth, A. (2000), “Victims’ Rights, Defendants’ Rights and Criminal Procedure”. In Crawford, A. and Goodey, J. (eds.) (2000), Integrating a Victim Perspective Within Criminal Justice: International Debates. Aldershot: Ashgate.

Bottoms, A. (2003), “Some sociological reflections on restorative justice”. In von Hirsch et al (2003), Restorative justice and criminal justice: Competing or reconcilable paradigms?. Oxford: Hart.

Braithwaite, J. (1989), Crime, shame and reintegration. Cambridge: Cambridge University Press.

Braithwaite, J. and Mugford, S. (1994), “Conditions of successful reintegration ceremonies”. British Journal of Criminology 34(2): 139-71.

Braithwaite, J. (1999), “Restorative justice: assessing optimistic and pessimistic accounts”. Crime and Justice: A review of research 25:1-127.

Braithwaite, J. (2002), Restorative justice and responsive regulation. Oxford: Oxford University Press.

Christie, N. (1977), “Conflicts as property”. British Journal of Criminology 17(1):1-15.

Christie, N. (2004), A suitable amount of crime. London: Routledge.

Duff, R.A. (2010), “A criminal law for citizens”. Theoretical Criminology 14(3):293-309.

Garfinkel, H. (1956), “Conditions of successful degradation ceremonies”. American Journal of Sociology 61(5):420-24.

Makkai, T. and Braithwaite, J. (1994), “Reintegrative shaming and compliance with regulatory standards”. Criminology 32(3):361-85.

Maruna, S. (2001). Making good: How ex-convicts reform and rebuild their lives. Washington DC: American Psychological Association.

Shapland, J. et al (2004), Implementing restorative justice schemes (Crime Reduction Programme). Home Office Online Report 32/04.

Shapland, J. et al (2006a), Restorative justice in practice. University of Sheffield Centre for Criminological Research.

Shapland, J. et al (2006b), “Situating restorative justice within criminal justice”. Theoretical Criminology 10(4):505-32.

Shapland, J. et al (2007), Restorative justice: the views of victims and offenders. Ministry of Justice Research Series 3/07.

Shapland, J. et al (2008), Does restorative justice affect reconviction?. Ministry of Justice Research Series 10/08.

Wittgenstein, L. (1953) (tr. G.E.M. Anscombe), Philosophical Investigations. Oxford: Blackwell.

Towards the rule of law

Here’s the opening of a paper I’ve just submitted:

Law, counter-law and the rule of law: resources for radicals

The law and the ideal of the rule of law are often associated with the maintenance of the status quo, and with ideas of ‘law and order’. But is the rule of law an inherently reactionary ideological formation? Do ideas about law have anything to offer to the perspective of a classless society? This paper sets out some basic definitions of the law, and of the rule of law, and considers the impact on them of Marxist and Gramscian critiques of ideology. An examination of some attempts at counter-law and regulation from below leads to the conclusion that the model of law, and the ideal of the rule of law, may offer more resources for radical and progressive movements, and for democratic politics more generally, than Marx’s or Gramsci’s critique would seem to imply.

The collection it’s intended for has an abolitionist & anarchist slant; I don’t usually refer to ‘the perspective of a classless society’ as a framing device. (Not that it’s necessarily a bad framing device.) The “attempts at counter-law” I examine are those associated with gangs in Salford (via Walklate), the IRA in West Belfast (via Hamill) and the Italian armed struggle groups of the 1970s; the Red Brigades were particularly fond of claiming law-making power for themselves, and particularly bad at exercising it.

And here, for anyone curious about where I’m coming from, are the references.

Brehm, S. and Brehm, J. (1981), Psychological reactance: A theory of freedom and control. New York: Academic Press.
Cole, D. (2001), “‘An Unqualified Human Good’: E.P. Thompson and the Rule of Law”. Journal of Law and Society 28(2): 177-203.
Della Porta, D. (1995), Social movements, political violence and the state. Cambridge: Cambridge University Press.
Fuller, L. (1964), The morality of law. New Haven: Yale University Press.
Hay, D. (2011; originally published 1975), “Property, authority and the criminal law”. In Hay, D., Linebaugh, P., Rule, J., Thompson, E. and Winslow, C. (eds.), Albion’s Fatal Tree. London: Verso.
Engels, F. (1968; composed 1890), “Letter to Conrad Schmidt”. In Marx, K. and Engels, F., Marx and Engels Correspondence. New York: International Publishers.
Gramsci, A. (1971), Selections from the Prison Notebooks. New York: International Publishers.
Hamill, H. (2002), “Victims of paramilitary punishment attacks in Belfast”. In Hoyle, C. and Young, R. (eds.), New visions of crime victims. Oxford: Hart.
Manconi, L. (1986), “The language of terrorism: a critique of the Red Brigades”. Emergency 4:37 40.
Manconi, L. (1991), ‘The political ideology of the Red Brigades’. In Catanzaro, R. (ed.) (1991), The Red Brigades and left-wing terrorism in Italy. London: Pinter.
Marx, K. (1968; composed 1845), The German Ideology. Moscow: Progress Publishers.
Marx, K. (1977; composed 1859), A Contribution to the Critique of Political Economy. Moscow: Progress Publishers; text.
Monicelli, M. (1978), L’ultrasinistra in Italia 1968–1978. Rome: Laterza.
Moss, D. (1989), The politics of left-wing violence in Italy, 1969–85. London: Macmillan.
Progetto Memoria (1994), La mappa perduta. Milan: Sensibili alle foglie.
Progetto Memoria (1996), Le parole scritte. Milan: Sensibili alle foglie.
Simmonds, N. (2005), “Jurisprudence as a Moral and Historical Inquiry”. Canadian Journal of Law and Jurisprudence 18:249-76.
Simmonds, N. (2007), The law as a moral idea. Oxford: Oxford University Press.
Thompson, E. P. (1975), Whigs and hunters. Harmondsworth: Allen Lane.
Walklate, S. (1998), “Crime and community: fear or trust?”. British Journal of Sociology 49(4):550-569.
Waldron, J. (2008), “The concept and the rule of law”. Georgia Law Review 43(1):1-61.

I made a couple of false starts on this paper, one of which was a critique of Hay; I realised after I’d written a couple of paragraphs that defining the rule of law, examining Gramsci’s concept of hegemony and offering a close reading of “Property, authority and the criminal law” would be altogether too much to ask from my readers. I’ll return to that some time and try to get a paper out of it. The other writers I was hoping to get round to in this paper are Pashukanis and Kamenka & Tay; again, that will have to be another paper. Right now I’ve got to write something intelligent – and not too tendentious – about restorative justice. Oh, and mark 78 essays, or possibly 80…

And find out what’s behind it

Cross-posted from ¡Vivan las Caenas!, where a series of retrospective posts is currently under way. This one is essentially ‘my life as a mature student’, and features what I didn’t realise then was the beginning of my interest in the law.

“The best thing for being sad,” replied Merlyn, beginning to puff and blow, “is to learn something. That is the only thing that never fails.”
– T. H. White, The Once and Future King

I was 30. After graduating I’d spent a year on the dole – you could do that back then – before getting a job as a computer programmer. (I’d been a member of the college Micro Society and spent many hours writing Atom BASIC.) Eight years after that, in my third job, I was getting rather bored and very demotivated: work just seemed to be a series of tasks to which I had no commitment, to be judged by standards I barely understood. (“Ennit all?”) I found interest elsewhere, as a member of the Socialist Society and the Socialist Movement, and as a writer for Tribune, New Statesman, Lobster and the SM’s short-lived paper socialist (grandparent of Red Pepper). In the pub one night, after a meeting of the Manchester Socialist Movement group, a guy I knew slightly mentioned that he’d signed up to do a part-time degree. It’s embarrassing to recall how transformative this tiny encounter was for me. It didn’t so much plant a seed as decontaminate the soil – suddenly, absurdly, there was no good reason why I shouldn’t do another degree. Or rather, suddenly there never had been. (So you can change the past!)

But what and how? I wanted to do something that I was passionate about, and that didn’t seem to be English any more. And was it an MA I was looking for? I considered going straight for an MPhil, or a doctorate at a pinch; I got as far as making a shortlist of two alternative thesis topics, one on the experience of UFO encounters and one on computing in business. (At least one dodged bullet there.) On reflection – and after taking advice from my former Director of Studies – I decided that an MA would be more straightforward and less lonely. It took a while to find the right course – it had to be part-time, for one thing – but eventually I embarked on an MA in Politics and Contemporary History at Salford. The course was modular, but in my case covered International Relations (which was awful), Nazi Germany, Resistance in Occupied Europe, Collaboration in Occupied Europe (which was fascinating) and Post-War Italy, with a dissertation on Guy Debord and The Society of the Spectacle. I graduated with a Distinction, and was encouraged by more than one of my tutors (finally!) to think about a doctorate. I made a second and more realistic shortlist of topics: resistance in Vichy France (with a particular focus on groups and individuals which (arguably) played both sides of the street, such as Emmanuel Mounier’s personnalisme movement); or radical movements in 1970s Italy (with a particular focus on those which (arguably) had a Situationist influence, such as Gianfranco Faina’s armed group Azione Rivoluzionaria). My tutors all agreed that, while both these topics were interesting and appropriately specific, one of them was pretty well mined out while the other was still honkingly obscure. So I set out to write a group biography of Azione Rivoluzionaria. Unfortunately they turned out to be just a bit too obscure, so I did this instead. (Looks pretty interesting, eh? Has your library got a copy?)

As for the law, consider a couple of themes I touched on in the previous paragraph: the challenges to political normality represented by the Nazis on one hand and the Situationists on the other. My fascination with the Nazi period (I can’t speak for anyone else’s) stems from the regime’s effort to normalise inherently destructive and corrosive values: to build an enduring system based on aggression, competition and brutality, in all areas of life and at all levels, undermining and corrupting cultural and institutional survivals from the old regime. (In little more than a decade they managed to build alternative forms of politics, an alternative (anti-semitic) form of Christianity and – of course – an alternative criminal justice system. There were cases of blatantly political prosecutions being dismissed by the judge, only for the suspect to be re-arrested as he left the court and taken into ‘protective’ custody by the Gestapo.) By looking at collaborationists, in particular – and respectable Nazi sympathisers such as Douglas Reed and Arnold Wilson – I thought we could think our way inside the genuine appeal of what is to us an obviously vile and unsustainable project. The Third Reich had a life span of less than a generation, so inevitably most Nazi supporters came to the Party as adults: did they all have 180-degree conversions, or were there areas of overlap between the National-Socialist project and other, legitimate political ideologies – and, if so, what could those overlaps tell us? In short, I was very interested in alternative normative systems, and in the idea of treating our own norms as just one set among others. At the other political extreme, the Situationists were a classic example of a radical group whose intellectual ability and self-confidence enabled them to develop and maintain a set of political norms quite distinct from those of the mainstream (to the end of his life Guy Debord was proud of a line of graffiti he’d written as a teenager: NE TRAVAILLEZ JAMAIS). The question here was less of overlap than of availability. May 1968 suggested that, given the swift kick of a general strike, entire towns and cities could jump the normative tracks and exist, at least temporarily, in a universe where spontaneous co-operation was the norm and wage labour was an aberration. I remembered Henri Lefebvre dismissing the Situationists as a band of dreamers: why, they even imagined that there could be a spontaneous general strike, in France, in the 1960s! The question of what makes a good normative system – one, potentially, better than our own – seemed to be a live one.

Those late-70s Italian movements, for their part, had it all: the dawning dreams of a world made new and the queasy horrors of political violence, plus a conflicted relationship with an uncomprehending official Left – which itself embodied an alternative system of values, in more or less compromised form. The law does start to show itself here as a field of contention: I was very struck by the legal amnesty achieved following the Hot Autumn of 1969, such that offences committed during the strike wave ceased to have been crimes. I also remember a debate in the Italian parliament as to precisely what happens when a Molotov cocktail goes off: if the explosion had been classed as a mechanical process rather than a chemical reaction, Molotovs would have been classified as weapons of war and their use would have carried much higher penalties. Politics, as Green Garside never said, is prior to the vagaries of the law – but those are some interesting vagaries.

Although I’d hit a dead end with Faina and Azione Rivoluzionaria, material on the broader topic of the radical movements of the 1970s (and their interaction with the Italian Communist Party) was surprisingly abundant. A couple of years earlier I’d taught myself Italian by brute force (reading a book about the Situationists with a dictionary next to me); I now took my Italian to the next level by much the same method, using Nanni Balestrini’s wonderful novels Gli invisibili and L’editore. (The first page of Gli invisibili took me most of a day: “the… the corridor was, was lined with… with what which whatly did what and made it look like a what?”. The entire book’s written without punctuation, which didn’t make it any easier. But I got there.) I discovered Primo Moroni a matter of months after his death (damn it), and corresponded more or less briefly with Steve Wright, Steve Hellman, Dave Moss, Donatella della Porta, Nanni Balestrini, Olivier Turquet and Gennaro Barbarisi (the writer of an opinion column in a 1976 edition of l’Unità). I carried out research in Colindale (Corriere della Sera on microfilm) and at the University of Reading (l’Unità in hard copy – the only place in the UK which held it) and presented my work in Edinburgh and Milton Keynes; I didn’t get to Italy, though (no budget).

Along the way I also discovered Alfred Schutz, read a lot of Rorty and a fair bit of Dewey, and sketched out a reconciliation of Bhaskar’s critical realism with Schutz’s social phenomenology; as well as blowing Rorty out of the water, this theoretical synthesis was going to give a definitive non-Foucauldian account of the relationship between power and truth. I should probably get back to it some time. Or maybe not. One of my first tutors on the MA had pointed out that I tended to take on too much and range too widely; clearly, I still had that problem. I began to realise how much of a problem it was a few years later, when a friend who was launching a new journal asked me for an 8,000-word paper and I turned in 16,000. (To his great credit, he spotted a way of turning it into two separate papers – and took both. Most editors wouldn’t be anywhere near so accommodating.) It’s a familiar pattern, recurring in a slightly less disabling form. The unique me-ness of me! All right, so I could play with ideas, but I wasn’t going to play with other people; I mean, I couldn’t, really. I’d do it over here, in my own way; it’d be brilliant, but nobody was going to see it till it was finished. I’d be uniquely brilliant! (Ta-da! Sixteen thousand words! How good is that?) Or, if necessary, I’d be uniquely useless; that would work, in its own way. (Eight thousand – eight, not sixteen! How can I be so stupid?)

While all this was going on, I was freelancing as a writer and researcher – I’d left IT for a job editing a computing magazine shortly after starting my MA, and left that job after three years to start work on my doctorate. Lots of writing to a deadline and editing to a word count, lots of instant research, lots of playing with sources and story-building – ask me anything about Wallis Simpson, or Jasper Maskelyne, or Helen Keller… What I didn’t do, while I was a postgraduate, was teach; I did sound out one of my tutors about the possibilities of teaching work, but I rapidly concluded that the day rate for technical journalism was better – I mean, much better. (Plus I could do it without leaving the house, or interacting with anyone except by email.) This was probably a mistake.

Chard Whitlow

Odd how it can work. I’m doing a lot of reading on the topic of the rule of law, considered as not only a liberal but potentially a radical ideal; this is in connection with the paper I outlined here (and mentioned I was stuck on here). So naturally I read Edward Thompson’s afterword to Whigs and Hunters (featuring the famous assertion that the rule of law can be called “an unqualified human good”) and Douglas Hay’s “Property, authority and the criminal law”, the opening chapter of Albion’s Fatal Tree.  Naturally I agreed with the first, finding the second equally challenging and confusing (I’m hoping I can make something productive out of my confusion). A quick Google found me a withering critique of Hay’s essay, John Langbein’s “Albion‘s Fatal Flaws” (you see what he did there); it seemed pretty convincing. I was curious as to how Hay’s thought had developed in the last 40 years – “Property” etc was excerpted from his doctoral dissertation, for which alone much respect is due – and got hold of the 2011 Verso reissue. Hay’s contribution to the 2011 Introduction led me to Peter Linebaugh’s superb response to Langbein, which left his critique in tatters (albeit on the basis of a fairly generous reading of Hay; Linebaugh’s Hay seemed more persuasive and more coherent than the original had done). Hay also cited work by Peter King, John Beattie and Alan Hyde, all of which I duly tracked down.

In the Introduction and elsewhere, Hay engaged more extensively with some critics than others; Hyde in particular he dismissed rather breezily (“Hyde (in the face of daily evidence from his own government, as well as our historical sources) seemed to think legitimation appeals made by elites were figments of our imagination.”). Being a cross-grained sort, I was intrigued by this and tracked the paper down. Hyde’s paper – “The concept of legitimation in the sociology of law” – is a critique of the Weberian concept of legitimation, arguing that it’s not necessary to explain either law-compliant behaviour or law-making, and hence that explanations of these phenomena which rely on it should be re-examined. Whether Hay was working in a Weberian framework is a moot point; I’m inclined to infer from the references to ideology and ruling-class hegemony – and from Linebaugh’s characterisation of his and Hay’s shared project as “(Marxist) social history” – that his background assumptions were Marxist and specifically Gramscian. However, this may make little difference; Hyde doesn’t mention Gramsci, but he does suggest that the Marxist framework of material base and ideological superstructure is vulnerable to very similar criticisms. Which is to say, both answer variants of the same question – “why do people do things to which they’re not motivated by habit, goal-seeking self-interest or prudence?” – and, Hyde suggests, this may not be a question worth asking. To find law-compliant behaviour solely (and hence incontrovertibly) motivated by a belief in legitimacy, one would need to pass a new (and recognisably novel) law, with a direct effect on individual behaviour, but with no benefit in compliance, no social pressure for conformity and no sanction for non-compliance; it’s difficult to imagine what this might be, let alone to speculate on whether everyone (or anyone) would comply. Identifying behaviour solely motivated by investment in ruling-class ideology is even harder: laws can change overnight, but – outside the world of Nineteen Eighty-Four – ideologies generally change slowly, making it very difficult to disentangle the effects of habit and prudential conformity from those of the ideology itself.

I don’t go all the way with Hyde; I don’t think anyone with an interest in protest and political disorder can afford to discard the concept of legitimacy. David Friedrichs’ 1986 response to Hyde is a useful corrective, arguing that we can distinguish constructively between the belief in substantive legitimacy and its withdrawal (“they have no right to rule us”), the belief in procedural legitimacy and its withdrawal (“they had no right to pass that law/detain those people/kill that man”) and the fact of popular legitimacy and its loss (“they don’t speak for us”). Tracing interactions between the three is left as an exercise for the reader. But legitimacy in this sense is an attribute of subjects’ relationship with any particular regime or class, rather than a social fact in itself; if anything it’s a kind of meta-textual attribute of ideological beliefs, its absence serving as a signal that a certain ideology no longer holds sway or should hold sway. And, to the extent that we are materialists, we can’t really argue that ideological change and stability are autonomous phenomena operating on their own ideological plane, let alone that they’re produced through changes to the material basis of society carried out to perpetuate a given ideology. To say that a particular regime is legitimate – or that a particular class is hegemonic – is a sociological statement of fact. But hegemony and legitimacy are attributes of a state of affairs with material bases. To speak of a regime actively preserving its legitimacy, or even a class actively maintaining its hegemony, may be to put the superstructural cart before the material horse.

Hay put forward the case that “the criminal law, more than any other social institution, made it possible to govern eighteenth-century England without a police force and without a large army”. On inspection the word ‘govern’ is equivocal: granted all that AFT tells us about disputes over property rights and use rights, we are not talking about the governance of a rebellious people, the continual repression of myriad local revolts. The question Hay is answering is not how revolt was repressed, but why it didn’t occur: why people very largely obeyed the law, continued to believe in the law and continued to believe their government to be legitimate. And here, I think, a purely ideological answer, based on the introjection of ruling-class norms (including the norms of law and justice), cannot be satisfactory.

This materialist argument finds support from a surprising source – and one which itself draws support from a surprising quarter. Hyde:

Unlike the labor law of earlier eras, contemporary labor law is rarely the weapon of choice of a strong employer class against a weak worker class. Rather, labor legislation in contemporary capitalism is almost always a concession made to troublesome or insurgent workers’ movements. For example, following the wave of wildcat strikes in Western Europe between 1968 and 1971, every affected country made fundamental revisions in its system of labor law, all involving concessions to organized unions in an attempt to solidify the unions’ organizational positions in the plant, on work councils, on corporate boards, etc. In many cases the concessions merely adopted as public policy what had been true defacto. The precise content of the concession varied from country to country depending on union political demands, but the variation seems almost irrelevant next to the fact that there were such concessions to the unions.

If this explanation is correct, it is possible to conclude that labor law has enormous symbolic importance, that workers can achieve changes in labor law, but that employers and governments retain considerable choice over the range of possible concessions. What the above story does not permit one to conclude is that this post-1968 legislation had any particular effect on working people, and in particular did or did not “legitimate” the system for them or render disobedience or revolt more or less likely.

The argument here is that the state of labour law at any one time reflects the balance of power between the bosses and the workers (and their representatives). More generally, law is an outcome of class struggle, or the absence of class struggle; it conditions the way class conflict plays out, but it is also conditioned by it – and cannot itself repress it.

I found this argument particularly congenial because of something I was writing a few years ago, before I ever considered the law as a field of study. Take it away, Edwards (2009, p11, references omitted):

From 1969 onwards the increasing political salience of the new movements prompted a resurgence in activity by the unions. Wage levels across Italian industry were set through three-year contracts between unions and employers’ organisations, which were due for renewal in 1969. CGIL organisers worked to integrate the more innovative forms of industrial action into contractual campaigns. As Franco Berardi of Potere Operaio recalled, ‘again and again, autonomous organisations organised strikes in a single section of a factory, after which the union came in, asked all the workers what their demand was, and used it to regain control of a struggle which had completely got out of their hands’.

The contracts signed in December 1969 were highly favourable. Wage rises outstripped inflation; working hours were to be reduced in stages, with a 40-hour week promised within three years; parity between clerical and manual workers, a central workerist demand, was conceded in principle. December 1969 also saw the passage of the Statuto dei Lavoratori (‘Workers’ Statute’). This became law the following May, together with a general amnesty for those who had been charged with offences relating to industrial action: disorderly and violent acts committed by factory activists ceased to have been criminal offences. Feeling that the government and the employers had been forced to back down, some groups began campaigning on new or modified demands: abolition of piecework, mass regrading, an immediate 40-hour week. However, many workers saw the contracts as a result with which they could be content. This view was encouraged by the unions, whose own position within the workplace had been greatly enhanced; for instance, the Statute entitled them to hold meetings in work time.

I make it four parties rather than two – the unions, movements like Potere Operaio, the workers whose support was contested and the bosses – but it turns out that I was telling a similar story at this early point in my book. Although I was writing a work of political sociology set among the Italian social movements of the 1970s, I’d already recognised the law as a significant terrain of struggle, where norms and meanings could be made and unmade – note those fascinated italics (“ceased to have been criminal offences”). Law as “an arena for class struggle, within which alternative notions of law were fought out”, to quote Thompson again (this time from his anti-Althusserian polemic The Poverty of Theory); but notions worth fighting out, in the form of law.

Nice to realise I’ve been on the right lines (or at least the same lines!) all along. We shall not cease from exploring, eh? And this time last year I was fifty-three.

The gate to the law (part 1)

So why all the legal stuff? I seem to be posting little else these days; I’ve even started a separate blog, devoted to one specific corner of legal theory. Am I a lawyer? (No, I’m a lecturer in criminology.) Have I got a legal background? (No.) Is it connected with my work? (Well… no, not really. Not just yet.)

So what is the fascination of this (very specialised) field of study? And what has it got to do with my actual academic career – particularly bearing in mind that I began this career fairly late on (it’s my third, roughly speaking), and it took me several years of hard work to get across the starting line? It’s taken me long enough to get to here, in other words, so why am I digging over there?

I’ve been wondering about this, and here’s what I’ve come up with. Here’s the first instalment, at least; the rest will appear on another blog.

BROD: Then there’s no hope?
KAFKA: Plenty of hope, endless amounts of hope! But not for us.

It begins, as far as I can make out, with damnation. Continue reading

A Doctor writes

I’ve tagged this post ‘flummery’, which I think was the category I chose for chatty and personal posts of no enduring value. As well as ‘flummery’ I find I’ve got categories for ‘drollery’, ‘foolishness’, ‘idiocy’ and ‘tosh’, not to mention ‘saying the thing that is not’; I must have had distinct purposes for each of those, although I’m not sure now what they are.

It’s a while since I last posted here; there ought to be a third ‘Dangerous decisions’ post, for one thing. Over the last month I’ve been working on a long and autobiographical post, which I began in an attempt to answer the question “why all this legal stuff?”. It’s got so long (and so autobiographical) that I’m now planning on breaking it up into sections and publishing it on another blog.

Also, I’ve recently been reminded that I’ve written a book – or, more to the point (and rather to my surprise, if I’m honest) that it’s still selling. For new readers, my book (publisher’s page) is an academic hardback on the radical social movements of late-1970s Italy and their relationship with the Italian Communist Party; I called it ‘More work! Less pay!’ and chose a rather dramatic cover image, which you can see to the right of this post. Shall we hear a bit more about the book before we go on? I think we shall.

In the mid-1970s, a wave of contentious radicalism swept through Italy. Groups and movements such as ‘Proletarian Youth’, ‘Metropolitan Indians’ and ‘the area of Autonomy’ practised new forms of activism, confrontational and often violent. Creative and brutal, intransigent and playful, the movements flourished briefly before being suppressed through heavy policing and political exclusion.

‘More work! Less pay!’ is the first full-length study in English of these movements. Building on Sidney Tarrow’s ‘cycle of contention’ model and drawing on a range of Italian materials, it tells the story of a unique and fascinating group of political movements, and of their disastrous engagement with the mainstream Left. As well as shedding light on a neglected period of twentieth century history, this book offers lessons for understanding today’s contentious movements (‘No Global’, ‘Black Bloc’) and today’s ‘armed struggle’ groups.

I’m afraid that both the cover image and, more importantly, the title were ill-chosen – partly because you basically have to read the entire book to discover what they refer to, but mainly because the phrase “more work, less pay” is, frankly, a bit of a downer. I don’t believe in magic, but I do think that words are powerful: if you were choosing between my book and one called Chimes of freedom or A brighter tomorrow or ‘Rich, lads, we’re rich!’, I think the negative connotations of my title could easily nudge it down the list. And when you’re dealing with academic hardback prices, it’s not going to be on thousands of lists to start with. (An academic paperback might be – but that would mean selling out the hardback print run.)

Still, when it came out it did sell quite a few copies – albeit not enough to sell out the print run – and apparently the publisher is still getting orders coming in. Good! (And if your nearest academic library doesn’t have a copy, why not?) Interestingly enough, several of the sales were ebooks, going for a bit less than the hardback; these (as far as I can tell) are library ebooks, made available through the Manchester Scholarship Online service. I’m in two minds about this; it means more eyes on my work, which is good, but it doesn’t bring the paperback edition any closer.

In other news, I’m horribly stuck. (In terms of writing, that is – real life is trundling along.) I’ve got no teaching this week – and I’m on a part-time contract anyway – so I resolved at the start of the week to clear some admin, get some student support in place, check the rest of the term’s teaching, answer emails as they come in obviously… and then devote myself to writing. Proper writing, that is – as distinct from ‘student support’ and ‘answering emails’, which between them involved writing about three and a half thousand words. Writing, hurrah!

Or maybe not. I’m partway through a paper (with a deadline) which is on a topic that passionately interests me, and I can’t think where the argument’s supposed to go; I go blank when I look at it. It’s a real block; I’ve always had difficulty motivating myself to write when deadlines were a long way away, but this is worse. I think part of the trouble is just that it is a topic that passionately interests me – all through the years I worked in IT, I did the autodidact thing: I would seize on scraps of time (evenings, lunch-hours, the bus to and from work) to read, and write, about the stuff that interested me in the way that work didn’t. And here I am, writing about precisely what interests me, in work time – well, I did some of that too, but here I am doing it for work. It seems to set the bar much higher – if I fail at this, where do I go?

Academia seems to be a weirdly scary place, albeit that it’s indoor work with no heavy lifting and no micro-management. (I remember the reaction of a colleague when the department we were in piloted timesheets for lecturers. Fresh out of IT, I just thought “yes, that’s a timesheet”; I was on the point of explaining how five minutes was roughly 0.01 of a standard day, so if you thought of it in terms of multiples of five minutes… Then I saw the expression on my colleague’s face: it combined affronted horror with an element of genuine bafflement. The pilot wasn’t a success.) There’s not much danger that your boss will tell you to get something done yesterday, but you will be strongly encouraged to seek out opportunities to shine – and, when it comes to it, you may just sputter out. (All very gouvernementale.) The nightmare scenario isn’t that your boss sets you an impossible task, in other words – it’s that you do. The glory’s all yours, if it’s recognised; so is the ignominy.

Oh well, back to the old drawing board. Wish me whatever it is that enables a climber to avoid looking down. Luck, possibly.

Dangerous decisions? (2)

The second decision I wanted to talk about was the Divisional Court ruling in the case of Unison (No.2), R (on the application of) v The Lord Chancellor. Unison had challenged the imposition of fees on would-be employment tribunal claimants, claiming that this denied any effective access to justice to many – or most – potential claimants, while also discriminating indirectly against some (poorer) groups. (More detail and discussion from Lauren Godfrey.)

The case report in Unison (No.2), as it will probably be abbreviated (or R v The Lord Chancellor, as I like to think of it), is distinguished by a weakness, an equivocation and a monstrosity. The weakness, on the claimant’s side, is probably sufficient to explain the negative finding, but it needs to be sharply distinguished from – and set in the context of – equivocal and monstrous arguments advanced by the defence. Once that’s done it’s clear that this is, still, a case which cries out for justice, even if the particular form it’s taken may doom it to a judicial dead end.

So far, so gnomic; let’s crack on. Unison’s case was, not that the imposition of ET fees would tend to put ET claims out of the reach of claimants, but that it actually had done so. Sadly, this claim was undermined by a key weakness in the union’s argument. An earlier application, based on the anticipated impact of the fees before they were introduced, was rejected on the grounds that the union had (of necessity) relied on hypothetical examples. This application relied instead on statistical data, which the Divisional Court (Lord Justice Elias and Mr Justice Foskett) found highly persuasive:

  1. There is no doubt that the reduction in the number of cases brought is striking. The Tribunals Statistics Quarterly for October to December 2013, published on 13 March 2014 show that, comparing the period October-December 2012 with the period same period in 2013 (the Fees Order having come into force on 29 July 2013), 79% fewer claims were accepted by the ET . For equal pay claims, the figure was 83% and for sex discrimination it was 77%.
  2. The Quarterly for January to March 2014, published on 12 June 2014, confirm the continuing dramatic effect of the Fees Order and suggest that the earlier statistics were not aberrant. Between January and March 2013, 57,737 claims were brought in the ET. However, for the same period in 2014, just 10,967 claims were brought. That is a drop of 46,660 claims or 81%. There is other evidence to similar effect.

The interpretation of these figures presents two issues, one of which the court (perhaps surprisingly) conceded: the reference to the continuing dramatic effect of the Fees Order takes it as given that the huge drop in cases was in fact caused – in some way and to some extent – by the introduction of fees. The second issue is more problematic: what is the nature of that causal relationship? The claimant’s case – denial of effective access to justice – requires that the fees regime made a tribunal application so expensive as to be effectively impossible. But this is fearsomely hard to prove in any individual case. If you think about it, affordability is an inherently elastic metric. Every time a fashion-conscious youth tribe makes the news – from the Teds to the New Romantics and beyond – there are stories of young men with menial jobs wearing ridiculously expensive suits, which they’ve bought by saving literally every penny they earn. On the same basis, anyone who earns enough to run a car could ‘afford’ a Rolex, just so long as they didn’t mind walking everywhere for a year.

The point here is that the vagueness built into the concept of ‘affordability’ makes it hard to prove that – in any given case where person A declines to spend money on purchaseable good G – the reason was that the potential purchaser could not afford the asking price. But, if something’s hard to prove in a single case, it’s just as hard to prove in several thousand cases. And if something’s not proved it can’t be assumed, or not without very good evidence in its favour – irrespective of whether we’re talking about one person or many. The fact that there are not one but 46,660 people who may have found ET fees unaffordable doesn’t, logically, make the case for unaffordability in any individual case any stronger – on the contrary, the case for applying the ‘unaffordability’ argument to many people depends on first proving it in at least one case, showing that at least one person has been deterred. That certainly looks like what has happened; discussing the alternative factors proposed by the Lord Chancellor, the case report notes that “[these factors] do not begin to explain the whole of this very dramatic change”. But a legal finding that it has happened would require much stronger evidence:

  1. … I suspect that there may well be cases where genuinely pressing claims on a worker’s income will leave too little available to fund litigation. But the difficulty with the way the argument has been advanced is that the court has no evidence at all that any individual has even asserted that he or she has been unable to bring a claim because of cost.The figures demonstrate incontrovertibly that the fees have had a marked effect on the willingness of workers to bring a claim but they do not prove that any of them are unable, as opposed to unwilling, to do so.

Note the last phrase – I’ll be returning to it. The implication of this paragraph is that only an approach based on actual cases would meet the appropriate evidential standard, although, as Lauren says, this would have its own pitfalls: “[f]aced with individual cases, the Lord Chancellor would no doubt argue they are atypical.”

As for the equivocation mentioned above, this relates to the second charge, of discrimination. Unlike the charge of outright denial of effective access to justice, the charge of indirect discrimination is open to the use of aggregate figures: if an identifiable group verifiably comes off worse, there’s a case to answer, even if no individual is complaining. In this case, as long as there is an identifiable group of potential claimants who have been differentially discouraged by the fees regime – and hence, ultimately, disadvantaged relative to the majority who were not discouraged in the same way – it does not need to be shown that any individual claimant has been compelled outright to abandon a claim. What does need to be shown, however, is that the discriminatory effect was caused in pursuit of a broader social goal which is not meritorious enough to justify it, either because the goal is wanting or because the discriminatory cost is disproportionate. The Lord Chancellor’s representative met this challenge with an argument which seems to have satisfied the two judges hearing the case, but… well, see what you think.

  1. The evidence shows that in setting up the fee scheme the government were seeking to achieve three specific and quite distinct objectives: the first was to transfer a proportion (one-third) of the annual cost of running ETs and the EAT to those users who benefit from it and can afford it; second, to make Tribunals more efficient and effective not least by removing unmeritorious claims; and third, to encourage alternative methods of employment dispute resolution so that litigation is not the first resort. This last objective goes hand in hand with the government’s promotion of ACAS conciliation which became mandatory for all ET claimants from 6 May 2014. The government considers that it should encourage quicker, cheaper and less emotionally damaging alternatives to the judicial process.

As with the previous quote, the last sentence is an interesting one – keep it in mind. For present purposes, the point is that the imposition of fees has been justified in three “quite distinct” ways. That there are multiple objectives is key to the government’s case here: one of the stated objectives, and perhaps the most obvious – saving money – is not regarded as sufficiently valuable to justify discrimination, for obvious reasons (denying healthcare to non-Whites or education to girls would save loads of money, after all). (In the interests of completeness I should note that the case report also argues that “requiring a contribution towards the cost of running the Tribunal Service” is not equivalent to “costs saving”, but the reasoning at this point is obscure.)

That leaves the two objectives of promoting efficiency (at least in part by “removing unmeritorious claims”) and of encouraging early recourse to conciliation and mediation. Lauren is unimpressed:

it must be doubted that there is a meaningful distinction between fees on the one hand – which reduce cost to both government, in running the Employment Tribunal system, and employers in defending claims – and the requirement on claimants to enter early conciliation on the other, as both requirements unquestionably serve the same identical dual aims. Further, and with due respect to the Court, they are requirements whose aims are grounded in cost alone.

I think this misses something. It’s certainly true that an ET system which charges a fee for each case and an ET system which processes fewer cases will both be cheaper to run, relative to the status quo ante, but I don’t think this is the main point here. The argument is that the fees will change some groups of clients’ behaviour: those claimants with conciliable claims will be encouraged to have them conciliated, while those with unmeritorious claims will be deterred from proceeding and will sling their hook.

I am surprised that the Divisional Court let this argument get past. The case report limits itself to a few comments on whether claimants who have weak claims or ought to be in mediation might in fact be encouraged to do the right thing by the imposition of fees. But the fee regime is, of its nature, imposed on claimants in general. The argument thus rests on an equivocation. The figure of the tribunal claimant, the person against whom these measures are directed, drifts in and out of focus as we read: he’s a trouble-maker and a chancer, who knows that he hasn’t really got a hope but plans to clog up the courts with his spurious claim anyway; she’s an unfortunate victim of workplace misunderstandings, who would rather not get the law involved but thinks she’s got no other option. Perhaps we could justify treating all claimants as no-hope chancers, on the basis that the good claims would stay in the system; perhaps we could justify treating all claimants as mediation clients gone astray, on the grounds that unmediable claims would find their way back to court. We certainly can’t justify treating all claimants as both these things – and, even assuming that both these groups exist in significant numbers, it’s hard to imagine any possible package of incentives which would address these two groups and nobody else.

In fact these aren’t two distinct objectives but one objective with two benefits. Given the lack of any possible mechanism to single out weak or inappropriate claims, and the lack of any evidence as to the prevalence of such claims in the system before the introduction of fees, the Lord Chancellor’s aim must have been – at best – to reduce the number of weak and inappropriate claims by means of an overall reduction in claims. The objective, then, is to divert people out of the system; the benefits are that these two groups, to the extent that they exist, will be dealt with more appropriately. The cost, meanwhile, is that a completely unknown proportion of the potential claimants who would otherwise have made claims – a proportion which may be anything up to 100% – will have had claims which would have been worth testing in court, and which will now go unvindicated. Not only is this an unknown proportion; it’s a proportion which there is, now, no way of knowing. The Lord Chancellor has in effect justified the introduction of fees on the grounds that it would reduce the use of the system – as indeed it has done.

Which brings me to the monstrosity. The context is the earlier argument about effectiveness; Ms Chan is representing the Lord Chancellor.

  1. Ms Chan’s basic submission, however, is that whatever the statistics say they cannot of themselves demonstrate that the principle of effectiveness has been infringed. It is not legitimate to infer that some litigants cannot pay from the fact that a significant number do not pay. Ms Chan accepts that the imposition of a fee will necessarily deter some litigants from taking their cases but contends that there are likely to be a variety of reasons for this. Some workers who in the past may have pursued a weak case, if only in the hope of securing a small settlement in their favour, will now be reluctant to do so because of the risk of having to pay fees if the case goes to the tribunal. Others will quite properly choose to spend their limited resources in other ways rather than gamble on litigation.

Savour that. Your elected government, ladies and gentlemen, doesn’t want you to gamble on litigation. It’s up to you how you choose to spend your limited resources, and if you don’t choose to spend them on vindicating your legal rights, that’s perfectly fine: the choice is yours. It’s your choice, except in the sense that it didn’t exist a couple of years ago: the decision whether or not to spend your money on employment tribunal fees has been created by this government, with the explicit intention of encouraging claimants to decide not to. Nothing says more about this Lord Chancellor’s contempt for the legal system than that pious invocation of ordinary people frugally husbanding their resources and choosing not to gamble on litigation. Legal rights? Never mind, your employer will respect them, probably. Best not worry about it.

Perhaps it was simply ultra this particular court’s vires – perhaps it’s more a matter for judicial review – but the real question at issue is stated in that quoted paragraph. By introducing a fee where none existed before, the government has restructured the terms on which people decide whether or not to go to a tribunal, with the express intention of discouraging them from doing so. In effect, the difficult, stressful and long-drawn-out process of going to an employment tribunal has been turned into a difficult, stressful and long-drawn-out process with a high up-front cost – a cost which in many cases will wipe out any monetary award which might eventually be made. This change has been made without any evidence that it would have a differential effect on cases which should not be going to court, or even that large numbers of such cases existed. Rather, it has been made in the knowledge that it would lead to a general reduction in the number of people asserting their rights under employment law, and (we can only assume) with that intention.

This is monstrous, and it should not be allowed to stand. I’m not sure that the Unison case is the vehicle by which it will be successfully challenged, but we can hope. Leave has been given to appeal.

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