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.


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?



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.

Hold on to the paper

I did something a few weeks ago which I hadn’t done for 22 years. I threw away a copy of the London Review of Books; volume 37 number 1, more specifically.

One down, 531 to go. I stopped throwing the LRB away quite soon after I first subscribed. The first copy I’ve kept, the LRB for 25th June 1992 (volume 14 number 12), features reviews by Gabriele Annan, Frank Kermode, Richard Mayne and George Melly (who wrote about Magritte). Contributors who are still with us included John Sturrock, Blair Worden and Hilary Mantel (“Her new novel, A Place of Greater Safety, will be published by Viking in September.”)

But I’m not telling you anything obscure. The only piece of information in the previous paragraph which can’t be found on the LRB Website is Hilary Mantel’s contributor bio – its 1992 version, that is. The same goes for the text of the reviews themselves – Sturrock on Proust, Kermode on Ahdaf Soueif, Mantel on Charles Nicholl. Whether I hang on to the paper copy or not, all those reviews will remain available to me for as long as I remain a subscriber, the LRB remains solvent and the Internet remains.

Never mind the content, though – what of the document itself, its inscape, its irreducible papery thingness? As an object, volume 14 number 12 consisted of 28 large, deckle-edged, four-column pages (very large; the pre-1997 LRB always put me in mind of the Beezer). There was advertising, but not very much of it – only two internal full-page ads (for Index on Censorship and Granta), one column of classified ads on the last inside page. There were those author bios, tersely written but elegantly worded (“George Melly is a jazz singer and an art scener, and was a friend of Magritte.”). The cover for that issue was a striking – and huge – shot of David Sylvester (“art scener extraordinaire”, presumably according to the same unknown hand). And there were photographs. To a much greater extent than the present-day LRB, the 1992 version often ran pictures illustrating or accompanying a piece; in this issue we had a 1973 shot of Ian McEwan and a ‘thirties’ photographic portrait of Magritte. But the journalism itself is all on the Website – where it’s easier to find, much easier to search and not a great deal harder to read.

Now, twenty-two years is a long time – and twenty-two years as an LRB subscriber is a lot of LRBs. Having kept them stacked behind the sofa for quite some time, in the early 00s I succumbed to an advertisement for binders and rehomed my collection. The binders are big, solid things, which would grace any library reading-room; they hold the actual papers by means of 24 long cotton threads, running top to bottom, onto each of which you thread a single copy of the magazine, open at the centre pages. It’s easier to do than it is to describe, although not by much; it was a long evening when I stocked my first ten binders. I got up to fifteen before temporary poverty dissuaded me from getting one for the year just gone; after that the moment to order another binder or two never seemed to arrive. At the start of this year I had fourteen and a half years’ worth of the LRB in binders and another eight years (192 issues) in a pile in the corner of the room.

Which is where they remain, at least for now; I crossed a line the other week, but I’ve only committed myself to throwing away post-2014 issues. I’m not sure how long this position will hold, though. Returning to the 1992 volume or half-volume, what strikes me is… well, two things, one which I fully expected to find and one which took me by surprise. Firstly, it’s hard to find your way around. Flipping through the pages, there seems to be no particular likelihood of fetching up at a front cover, let alone a Contents page; the collection truly becomes a ‘volume’, one long, unordered series of reviews, pictures, Letters to the Editor. Secondly – and this probably shouldn’t have surprised me as much as it did – it’s very easy to get lost in it, in a good way. Lighting by chance on a Contents page, I find that A Place of Greater Safety was reviewed (fairly favourably) by P.N. Furbank in the 20th August issue. The same issue featured pieces by E.S. Turner, Paul Foot, Mary Beard and Marina Warner, a Diary by Christopher Hitchens and letters from Michael Horovitz and Kurt Vonnegut; the cover was a very striking (and huge) shot of Carolyn Steedman, whose collection Past Tenses is reviewed by Patrick Parrinder. All that (and, of course, more) in one issue. It goes on: I turn a few pages and I’m reading – or at least having the option of reading – Perry Anderson on Thatcherism; Amartya Sen on Darwinism; Jenny Diski on Madonna; Adam Phillips on cross-dressing…

I once found a small stash of LRBs in a dentist’s waiting-room; the unexpected pleasure was blunted slightly by the realisation that they were all issues I’d read. But only slightly – you can’t remember everything you ever read, after all. I would be happy, more than happy, to sit down with that 1992 volume of the LRB – or any of the other fourteen – and work my way through, given a spare couple of days or weeks. But if I had any questions I wanted answered or memories I wanted to track down – even if I wanted to check something that had caught my eye in one of those issues I’d just leafed through – the Web site would win over the bound volume every time. (What was it that Craig Raine was saying about Kipling? Ah, here we are. Bookmark that.) And that goes double for the issues from between 2007 and 2014, standing forlorn in the corner of the room, unbound and unconsultable. I’m afraid their days are numbered.

But what to do with 528 LRBs, 336 of them in binders? How to dispose of them? Into the recycling, a year at a time? Surely not. Perhaps I’ll give it a bit longer, rather than rushing into anything. It’s been 22 years, after all.

Update I wrote this post with the LRB blog in mind; this was perhaps a bit quixotic, not to say cheeky, given that the LRB is still selling binders. I’ve kept to my resolution of throwing away new LRBs when I’ve finished with them, but it seems to have had the unintended consequence of making them harder to finish with: my backlog of part-read issues currently stands at four instead of the usual one or two, and I’ve only recently got it down from six. As for this blog post, the LRB turned it down – which is why you’re reading it here – but they did made me a present of some more binders. Which was nice.

Cap in hand (4)

Since about 1974, the two-party system established after 1945 has been gradually unravelling. (This means, of course, that the period of unchallenged two-party stasis is actually shorter than the period since it ended. Not only does nothing last forever in the British House of Commons, nothing (since Victoria) has lasted longer than about 40 years: first Whigs and Tories, then Liberals and Conservatives, then National Governments for most of the period from 1918 to 1945, then the Labour/Conservative duopoly, and then the unravelling begins.) For much of the period between 1945 and 1974 third-party representation was minimal: in the 1964 House of Commons there were nine third-party MPs in total, meaning that Labour had an overall majority despite having only thirteen more seats than the Conservatives. That hasn’t been the case for a long time; throughout the Thatcher and Blair years, despite the unchallenged dominance of their respective parties, the number of seats not available to the two main parties has steadily increased.

There look like being around 90 third-, fourth- and nth-party MPs in the next Parliament, meaning that the gap between the two main parties needs to be that much bigger for either to gain an overall majority. The number of seats the winning party would needs is still the same – formally, half the seats in the Commons plus one, or 326; the difference is that, to achieve an overall majority, the first party now needs a much larger lead over the second party, which must win no more than 234 seats. Instead of the two parties splitting the lion’s share of the seats 52%/48% (as happened in 1951), the split thus needs to be at least 58%/42% in favour of the largest party: any less and, as in 2010 (54%/46%), there is no overall majority. Prior to 2010, of course, this was not an issue. Curiously, in the same period that the minor-party bloc was growing, its effects were masked by a series of huge parliamentary majorities: the governing party never accounted for as many as 60% of the first two parties’ MPs from 1950 to 1979, but majorities on this scale were achieved in five of the next six elections, two under Thatcher and three under Blair. The scale of the split between the first two parties in 2010 – 306 to 258 – was more typical of election results in the 1950s and 1960s; something similar will almost certainly be seen this year.

This raises the issue of coalitions and alliances, deals and understandings. There are, of course, many ways to form a coalition and just as many ways to justify choices of coalition partner. Nick Clegg has declared that the Lib Dems would only work with the party given the biggest ‘mandate’ in the election – and that a government formed on any other basis would lack legitimacy and be unable to function. (He has subsequently retreated from the assertion about legitimacy.) This echoes a line being run by the right-wing press, to the effect that the party with the most seats will be the rightful winner of the election, whether or not another party can put together a more durable parliamentary majority. However, there is no constitutional justification for this argument, or for Clegg’s slightly more nuanced position. At this stage it’s unhelpful at best; at worst it’s pure mischief-making, driven by a determination to maintain the coalition with the Tories and keep the Lib Dems in government on that basis. Ironically, it also gives the Tories a strong incentive to attack the Lib Dems: every seat the Tories can take from them makes it more likely that the Tories will be the largest single party.

As well as fetishising the largest single party (evidently on the assumption that the Tories will be that party), the right-wing press has denounced the possibility of a coalition between Labour and the SNP, arguing that this would be undesirable, illegitimate and inherently unstable – although, given the arithmetic, a Tory-led coalition is likely to be considerably more unstable. A simple and straightforward answer to both these charges would be to say that governments are formed on the basis of a majority in the House of Commons; that there is no clause barring members of the SNP, or any other elected party, from forming part of that majority; that the solidity of the SNP vote, and the congruence of Labour and SNP policies, make a Labour/SNP majority a virtual certainty; and that this is a good thing, guaranteeing that the new government would be both representative and stable. However, Labour politicians from Miliband on down have refused to say anything like this, insisting that the party is fighting for an overall majority – something which, on the basis of the current numbers, is implausible for the Tories and downright unbelievable for Labour.

It’s Labour I want to concentrate on in this post. When it comes to allying with the SNP, Labour are in a difficult position. Given the distortions of the ‘first past the post’ system, support for the SNP has risen to the point that it effectively wipes out the other parties’ chances of electing any but a very few MPs in Scotland. A recent poll gave the Lib Dems 4% of support in Scotland, the Tories 15%, Labour 26% and the SNP 49%; on that basis (according to the UK Polling Report swingometer) the SNP would win 54 of the 59 Scottish seats (+48), Labour 4 (-37), the Lib Dems one (-10) and the Tories none (-1). Given that there were 40 Labour MPs in the outgoing House of Commons, this is an extraordinary turnaround – and one with serious implications for Labour’s position overall. Projections showing Labour taking 295 seats – a net gain of 39 from the current 256 – are actually showing a net gain of 76 English seats. It also helps explain a certain deafness on Labour’s part to friendly overtures from the SNP. Even if the two parties’ policy commitments were identical, for Labour to accept the SNP as a member of an anti-Tory alliance would be to abandon 36 MPs (the 37th was Eric Joyce).

A revival of Labour in Scotland – assuming for the moment that this is a possibility – could also have game-changing effects for the House of Commons as a whole. If Labour were to wave a wand and take 10% of Scottish support from the SNP – taking the two parties’ support in Scotland to 36% and 39% respectively – this would only correspond to a 1% rise in UK-wide support, but its effects would be enormous: the largest party in Scotland would be Labour with 31 seats, followed by the SNP (24) and the Lib Dems and Tories, both on two seats. If this corresponded to a UK-wide increase in support from 35% to 36%, it would take Labour from 295 to 322 seats; an effective majority together with Plaid Cymru, never mind the SNP. There’s also the intriguing suggestion that the level of ‘undecideds’ is substantially higher in Scotland than in the UK overall, running at anything up to 28%. A Labour campaign which could engage with undecided Scottish voters to the extent of bringing Labour 15% out of that 28% and the SNP 10% – instead of 7% and 14%, reflecting the breakdown of the ‘decided’ vote – would take the vote split from 49%/26% to 45%/33%, giving Labour 17 seats.

So, the best way for Scottish Labour to encourage its supporters to vote – and its activists to get the vote out – is to stick to the message that Labour cares about every seat in Scotland; it’s also an easy message to stick to, as it’s the truth. A post-election alliance with the SNP is feasible for Labour in a way that it isn’t for the Tories, and in the abstract this is a plus point for Labour; however, for as long as (Scottish) Labour is also the enemy the SNP has to defeat, (GB) Labour can’t make anything of it. To put it another way, it’s not surprising that Labour might have some difficulty welcoming SNP MPs into a broad progressive alliance, when we consider that two-thirds of those MPs will have been elected for the first time on May 7th, after defeating a sitting Labour MP.

The implications of this position are greater than they seem, though. Labour could rule out a deal with the SNP then come to power as the head of a post-election anti-Tory alliance, formal or informal. If this looked like being a likely result – or the only likely alternative to a Tory victory – then the situation for Scottish voters would be exactly the same as if Labour were promising to ally with the SNP: there would be no reason to vote SNP rather than Labour, and all those Labour seats would be just as much at risk as they ever were. To make the party’s position credible, Labour has to make the further commitment not to ally with the SNP, even at the cost of losing power.

This could be seen as a case of “costly signalling”: making commitment to a position credible by associating it with personal costs. The costs in this case are not entirely personal, though – in fact, if you’ll forgive me a quick diversion into populism, the costs aren’t personal: even if we have another five years of Tory rule, Ed Miliband will still be drawing an MP’s salary at the end of it. Given the stakes involved, Labour’s position is reminiscent of the debased variant of signalling theory practised by Richard Nixon, which he called “madman theory”; this involved making threats with consequences so dire that no sane actor would choose to incur them, while creating uncertainty as to whether he would carry them out anyway. This was certainly the reaction of Nicola Sturgeon:

“I heard Ed Miliband and he sounded awfully like he was saying – and I hope I’m wrong about this because I think people across Scotland and the rest of the UK would be appalled if I’m right – he sounded as if he was saying that he would rather see David Cameron and the Conservatives back in government than actually work with the SNP.

“Now, if he means that, then I don’t think people in Scotland will ever forgive Labour for allowing the Conservatives back into office. But if he is a minority government, then he will not be able to get policies through without winning support from other parties.”

‘Other parties’ here meaning, primarily, the SNP. But – to follow that train of thought through – if Labour can’t get policies through without winning support from the SNP, and if the SNP has a lot of the same policies as Labour anyway, then there’s no reason on earth to vote Labour rather than SNP in a Labour/SNP marginal. What looks like wild irresponsibility may actually be the logical consequence of a commitment to fight for Labour votes in Labour seats.

Labour’s apparent acquiescence in the other line being put forward by the Tories and their media allies – the idea that the largest single party has a right to rule – baffled me for a long time. Jim Murphy, leader of the Scottish Labour Party, has openly endorsed the ‘largest single party’ model, saying that a strong result for the SNP would directly benefit the Tories: “If this poll [giving the SNP all the seats in Scotland] is repeated on election day, David Cameron will be uncorking his champagne, because he might cling onto power; not because Scotland’s gone out and voted Tory, but because Scotland has voted against the Labour party and made sure David Cameron has the biggest party”. Perhaps the Scottish context is the key, and we’re still in the realm of costly signalling. If the next government could be formed by putting together an anti-Tory majority – as in fact it can, constitutionally speaking – then there would be no reason to try and save all those Labour seats, other than pure party loyalty. Therefore (for a politician in Murphy’s position) there must be some way in which losing Labour seats to the SNP would affect the outcome; the only significant difference the loss of those seats could make is that it might stop Labour being the largest single party; therefore, it must be the case that the largest single party wins. The cost is rather high – it involves not only lying about the British constitution but endorsing a lie put forward by David Cameron for his own ends – but the signal is sent loud and clear: vote Labour. Vote Labour or else. The problem is, of course, that the message sent to potential Labour voters in Scotland is entirely negative; it essentially says that the Scottish political battle (between two Left parties) has to be treated as if it were a battle between Left and Right, because the Labour leadership says so. We’re not in the world of “Tartan Tories” any more, but the effect is much the same.

Could it be different – could Labour fight for those Scottish seats (and those undecided Scottish votes) without threatening to bring the roof down on us all? Could the nationalist parties be treated as friendly rivals rather than mortal enemies – fight for every vote on May 7th, shake hands on May 8th? Can it still be like that? I wonder; I worry. At the moment – three days out – I think there are three main possibilities, which unfortunately get worse in ascending order of probability.

1. Perhaps we’re still waiting for the other shoe to drop – just as Labour announced they were going to “control immigration” and then revealed that this actually meant enforcing the minimum wage so as to stop gangmasters illegally undercutting British workers. Very clever. (Perhaps a bit too clever, but that’s by the way.) Perhaps on Wednesday morning Miliband will say something like,

“I said ‘No deals,’ and I meant it. But that’s not to say I’ll refuse support if it’s offered. We’ve got a plan, and we intend to stick to it; if other parties want to support that, great. I say to them, we’re not going to change our plan to suit you – we’re genuinely not interested in deals. But if you want to support Labour’s plan for the country, please do.”

I think that would shoot several foxes & almost certainly make Miliband PM. Unfortunately I can’t see him doing it. I hope I’m wrong, though.

2. The Labour leadership may be thinking in terms of keeping their heads down until Thursday, fighting hard (and sending out costly signals), and then forming a minority government. In this case – as Sturgeon says – ruling out a deal may not make much practical difference. In a minority government the parliamentary arithmetic would be exactly the same as in a coalition – the government’s majority would just be re-assembled every time, generally from the same parties as the time before. This would have the additional advantage of disrupting the Tory/LD bloc by encouraging individual MPs – or entire parties – to support Labour legislation. This would be a hegemonic strategy, in other words, from a position of apparent weakness. I think this would appeal to Miliband on several levels.

3. Sadly, the explanation for Labour’s current tactical choices may be simpler than either of these: it may be that they’ve bought the Tory line, illegitimacy of SNP involvement in government, largest-party-goes-first and all. Or at least that they’ve taken the decision to act as if they’d bought it, as they did in 2010 (disastrously) with the “Labour overspending caused the crash” story. (Miliband is challenging that now, but it’s a bit late.)  Debating with Nicola Sturgeon, Jim Murphy even said… well, this:

Murphy also indicated that Labour would resist pressure to vote down the Tories if David Cameron’s party became the largest in parliament. Murphy told Sturgeon the last time the losing party had formed a minority government was in 1924. “It was so long ago, there wasn’t a Queen’s speech. It was a king’s speech,” he said.

Sturgeon retorted that Gordon Brown had tried to broker a deal to continue as prime minister despite coming second behind the Tories in 2010 – disproving Murphy’s thesis. But the Scottish Labour leader implied that the former prime minister was wrong, saying there was “an unstoppable force” behind the Tories which made it clear they were correct to form the government.

Largest single party = “unstoppable force”? Labour would “resist pressure to vote down the Tories”? Either this is the madman theory in full effect, or Murphy actually believes it. I fear the latter possibility, and I fear that he’s not alone. I have a lot of trust in Ed Miliband’s judgment – he’s shown that he’s not someone to be underestimated – but we’re electing a party, not a president, and there are some Labour MPs I wouldn’t trust as far as I can throw them. I’m not giving names, both because it would be a distraction and, more importantly, because they don’t tend to use names – see for instance “some members of the shadow cabinet”, bravely disagreeing anonymously with their own party leader in the middle of an election campaign in today’s Murdoch Times (not that I’m cross about this or anything). If anyone in the Labour party is thinking along those lines – if anyone is thinking in terms of stepping graciously aside and giving the Tories another turn in government… well, there’s a quote for that.

Let’s not forget, the Tories only got into government in the first place by allying with a party which had previously opposed most of what they stood for – and whose support has dropped like a stone since they made that alliance. Essentially, the Tories are in power under false pretences; there’s an anti-Tory majority out there for the taking, a progressive, left-wing alliance there to be built. If Labour don’t take that chance, a lot of people will be asking what the party is good for. In the words of the song, I can’t understand why we’d let someone else rule our land…

Cap in hand (3)

The story so far: in the last three parliaments there were 80, 92 and 85 MPs who were neither Tory nor Labour; there looks like being a similar number in the next parliament, albeit differently constituted (more SNP, fewer Lib Dems). In the absence of a landslide somebody is going to have to ally with someone. Both the Tories and the Lib Dems are claiming that the party forming the next government should be the largest single party, and that doing otherwise would somehow lack stability or legitimacy. There is no historical or constitutional justification for this, and it looks as if they’re just saying it in the hope of giving the Coalition another five years, even if a Labour-led government could have a bigger majority and (consequently) be more stable.

That’s where we were up to last weekend. Then things got worse, with the outgoing Home Secretary’s extraordinary intervention in the Mail on Sunday. Now, the political stance of the Mail newspapers has never been what you could call impartial; ‘nuanced’ is another word that doesn’t spring to mind. But over the last couple of weeks they really have thrown caution to the winds; you could be forgiven for thinking they were being guest-edited by Chris Morris. ‘Red Ed’ is proposing “Stalinist” policies; a new hospital – in evil socialist Scotland – is “Nicola’s Death Star”. (To be fair, the ‘death star’ nickname is being used locally, on the basis that the building’s sort of star-shaped (it actually looks more like a Space Invader). But “new hospital: bad thing” genuinely is what the story is saying; ‘Fury-new-1bn-super-hospital-Glasgow‘ says the URL.) Perhaps most bizarrely of all, the Daily Mail has put its name to the statement that immigration is “being totally ignored by the main parties”: “the subject that dare not speak its name … has been all but air-brushed from the election”. To the extent that this leader column says anything at all, it seems to be complaining that nobody is actually campaigning on a platform of sending the buggers back; Labour’s promise to clamp down on the exploitation of cheap migrant labour is dismissed as a sop to the party’s “union paymasters”, a comment which is headbangingly stupid, scarily authoritarian or both (don’t come in here with your pinko commie supply and demand, we want men in uniforms and we want ’em now).

So you don’t go to the Mail newspapers for a cool draught of disinterested rationality – not at the best of times, and certainly not now. But even by those standards Theresa May’s statement last Sunday was something else.

Mrs May told The Mail on Sunday: ‘If we saw a Labour Government propped up by SNP it could be the biggest constitutional crisis since the abdication. It would mean Scottish MPs who have no responsibility for issues like health, education and policing in their own constituencies [as they are devolved to the Scottish Parliament] making decisions on those issues for England and Wales. Rightly, people in England would say, “hang on a minute, why are Scottish Nationalist MPs allowed to do that?”‘

Two separate claims are being confused here. I’m not sure if May would want to stand by both of them, or even if she was aware that they were separate claims. (Since ‘catgate‘ my opinion of our former Home Secretary hasn’t been high.) I’ll disentangle them anyway. First, the devolution question. So Mary Smith, MP for Moray, Forth and Orkney votes in Parliament to cut the police budget and spend more money on primary healthcare – or vice versa – despite not having any responsibility for those issues in her own constituency. Does this matter, and if so why? There is a genuine and longstanding question – the ‘West Lothian’ question – about the capacity of Scottish (and Welsh) MPs to vote, after devolution, on matters solely or mainly affecting England, but opinions differ as to how serious it is; May’s apparent belief that it is very serious indeed is not widely shared. The SNP isn’t an abstentionist party, and May isn’t suggesting that Smith wouldn’t turn up – quite the reverse. It seems reasonable to assume that when the voters of M, F and O elected Smith to the UK Parliament, they were voting for an MP who would represent their views for the UK as a whole and take part in Parliamentary discussions about the governance of the UK – including the governance of England.

In any case, if Smith was democratically elected, and if the MSPs for Moray, Forth and Orkney are also democratically elected, it would all come out in the wash: the same voters would vote for parties putting forward the same policies, whether they got to implement those policies within the constituency or not. If anything, of course, the Scottish Parliament is more democratically representative, being elected under PR. (The three main UK parties are currently projected to get 5 Scottish seats between them (out of 59), on 45% of the vote. Seats the three parties currently hold at Holyrood: 58 out of 129, or 45%.) This doesn’t affect the main point: there is no reason to imagine that the voters of Moray, Forth and Orkney would vote for positive, responsible policy agenda A when electing Mr Brown, MSP for Moray, Ms Wilson (Forth) and Mr Robertson (Orkney), and then vote for bad, dangerous policy agenda B when electing their Westminster MP (Ms Smith).

The only way this could possibly work would be if Smith, Brown, Wilson and Robertson were actually all advancing the same agenda – one that’s positive for Scotland but bad and dangerous for the UK. And, it turns out, this is actually what May is suggesting. The West Lothian question is a red herring; as the last sentence quoted above suggests, it’s only a problem if Scottish Nationalist MPs are voting in Westminster on matters affecting the rest of the UK. By implication, it would still be a problem in the absence of devolution: if serious ‘West Lothian’ issues are being raised by the stance of a political party – rather than the vagaries of individual MPs’ voting behaviour – then that party’s position must be bad for England as well as being good for Scotland. And if that’s the case, they’re going to be a bad influence at Westminster whether Scotland has a devolved assembly or not.

There’s an obvious problem here: once you’ve set up an electoral system, you’ve got to accept the results it gives you. If it’s possible and legal for the SNP to stand candidates, then it has to be possible for SNP MPs to be elected; if the people of Moray, Forth and Orkney have elected an SNP MP, they’re going to be represented by someone who votes in accordance with SNP policy. And this is not a problem: it’s how the system works, just as it worked – exactly as it worked – when the people of Maidenhead voted to elect a Tory. May doesn’t seem to accept this.

‘Miliband would be in government on the coat-tails of Sturgeon and Alex Salmond. They would be calling the tune – people who don’t want the UK to exist and want to destroy our country. There would be a very real feeling was this was something people did not want to see, had not voted for and would find very difficult to accept. It would raise difficult questions about legitimacy. A lot of English people would question that.’

A Labour/SNP alliance would be “something people did not want to see [and] had not voted for”. That’s something you could say about a lot of post-election alliances; you could certainly say it about the 2010 alliance between the Conservatives and the party that won 23% of the vote opposing economic austerity and tuition fees. But this is much worse, because it’s the SNP: “people who don’t want the UK to exist “. “A lot of English people” would question a Labour/SNP alliance; it would “raise difficult questions about legitimacy”.

Again with the L-word! This talk of legitimacy is alarming: it suggests that we could run an election according to the rules, form a government according to the Cabinet Manual (pdf), and still end up with a government that wasn’t valid in some undefined way – or rather, with a powerful and vocal lobby denouncing the government as invalid. It’s astonishingly arrogant – who gave May, or Cameron, or Clegg the right to pronounce on whether an elected government should be allowed to exist? – and frankly dangerous: it’s the kind of thing that gets people talking seriously about coups.

It’s also, frankly, stupid. Let’s say we pass a ruling that a party demanding independence from the UK can’t be a vital part of a government of the UK – can’t supply the MPs necessary for a second party to get a majority (this seems to be what May wants, or at least the result she wants to bring about). Then what? What about three-  or four-party coalitions – should we debar the secessionists from those as well? Better had – otherwise one of the other parties might defect and leave them holding the balance of power after all. Similarly, of course, nationalists should be debarred from any kind of opposition alliance or understanding between parties – you never know when the wheel might turn and put the opposition in power, and we’d be back where we started. What about hung parliaments and votes of confidence – should we bar the nationalists from taking part? Otherwise their vote might be crucial to the survival of the government, which is just what we wanted to avoid. But then there are all the other votes which help a government survive, or undermine it if they are lost – can we afford to put the survival of the government’s prestige and reputation in the hands of the nationalists? And so on. The only way May’s logic will work is if we bar the nationalists from voting at all, or else from standing for Parliament in the first place – or if we excluded their nation from Parliament altogether. Perhaps the word isn’t ‘stupid’ after all; perhaps it’s just dangerous.

In part 4: what on earth are the Labour Party doing?

Cap in hand (2)

Initially, the Tories’ current campaign strategy – which centres on various forms of shroud-waving at the prospect of a Labour/SNP government – left me genuinely puzzled: even granted the premise (which clearly I don’t share), I couldn’t see any logic to it at all. “A Labour government would rely on SNP votes, therefore you should vote Tory”? How could that possibly work? The implicit comparison is between a Labour arrangement (of whatever sort) with the SNP and a Tory majority, but surely that’s a false choice. There isn’t anything magical about a Tory vote that makes it capable of bringing about a single-party government; the Tories, just as much as Labour, are going to be fishing for allies in the 80- to 90-strong ‘small parties’ group. And the attacks on a potential SNP lash-up remind us that, unlike Labour, the Tories have no hope of making allies of the majority of that group – if only because the majority of that group will almost certainly be SNP. The Tories will be able to call on any Kippers and Official Unionists, as well as the Lib Dems, the DUP and Alliance (NI); Labour will be able to talk to the SNP, Plaid Cymru, the SDLP, the Green(s) and perhaps even Respect – as well as the Lib Dems, the DUP and Alliance (NI). Potential Tory allies (rough estimate): 30, giving a bare minimum of 296 Tory MPs for a (fragile) majority. Rough estimate of potential Labour allies: 80, giving a minimum Labour group size of 246. Most current forecasts have both parties on between 270 and 280 MPs. That would be fine for Labour – with the SNP on their side they might even be able to dispense with the Lib Dems – but it’s no good for the Tories: barring a massive revival of Lib Dem fortunes, 280 Tory MPs would not be able to form a government with any imaginable combination of allies.

The brute facts of current polling – including current polling in Scotland – are extremely unkind to the Tories, and this situation is unlikely to change unless they find and broadcast some positive reasons for voting Tory in short order. This being the case, at first I was baffled by the amount of time and energy they were devoting to pointing out, in effect, how well the SNP are doing and how unlikely it is that they’ll support the Tories after May 7th. As time’s gone on, though, the message has become more sophisticated. The initial message, focusing on how undesirable a Labour/SNP government would (supposedly) be, has been supplemented by three more: an argument that a Labour/SNP government would be, not merely undesirable, but inherently unstable and unworkable; an argument that the largest party (and/or the one with the largest popular vote) should get first go at forming a government; and – doubling down again – an argument that a Labour minority government sustained by the votes of the SNP would somehow be unconstitutional or illegitimate.

Nick Clegg – who on current form is surely destined for a Tory seat in the House of Lords – has spelt it out, speaking to the FT and the BBC . As well as “rul[ing] out any arrangements with the SNP” on political grounds, Clegg dismissed the SNP as essentially untrustworthy, arguing that a coalition dependent on the SNP for its majority would be “on a life support system, where Alex Salmond could pull the plug any time he wants”. Governmental stability seems to be a preoccupation for Clegg, but on closer inspection stability doesn’t seem to mean the numerically-guaranteed ability to win votes and pass laws. Rather, stability and instability seem to be intangible qualities deriving from the conditions under which the government was formed: a blessing (or curse) bestowed on a government in its cradle: “You cannot provide stability, you can’t take difficult decisions, if people are constantly questioning the birthright of a government”. We are told that “Liberal Democrats will ensure that any government is legitimate and stable”, which is nice of them. What this actually means, though, is something quite specific and potentially rather ominous.

“That means that, in a democracy, the party with the greatest mandate from the British people – even though they haven’t got a majority – seems to me, to us, to be the party that has the right to try to assemble a government first. They may not succeed, but they should surely be given a chance to succeed.”

Clegg would only talk to the second party if the largest party’s coalition-building efforts had failed. And woe betide any second party which stole a march on the Lib Dems and put together a parliamentary majority without waiting to hear from them. Even with Lib Dem involvement, Clegg suggests, a “coalition of the losers” could lack “legitimacy”; without them, presumably, legitimacy would be a lost cause. A second-placed Labour Party might be able to get the numbers, but it wouldn’t have the birthright.

This all deserves a bit of analysis. The comment about Alex Salmond pulling the plug is odd, to say the least. Any large minor party in a coalition (e.g. the Lib Dems, 2010-15) has precisely this power; the Fixed Term Parliaments Act makes it less straightforward to use, but obviously this would apply to the hypothetical Labour/Lib Dem/SNP coalition as well as the actual Tory/Lib Dem one. What Clegg seems to be telling us here is that not all minor parties are like those rascally nationalists: once the Lib Dems have chosen their coalition partner, they will never defect. Which is nice, I suppose, although it doesn’t seem like terribly good politics. (Or perhaps it’s simpler than that. If we take into account Clegg’s reference to Labour’s “frothing bile” towards the Coalition – a line which goes back to 2010 – perhaps what he’s saying is simply that he has chosen his coalition partner, and will never defect.)

Secondly, is it in fact difficult to get things done when – or rather because – a government is seen as lacking legitimacy or having its ‘birthright’ challenged? Setting aside other sources of difficulty, such as a small majority or a divided governing party – which would make it hard to win votes whether the government’s birthright had been impugned or not – I can’t think of any examples. The outstanding example of a government having its creation called into question is surely the election of George W. Bush in 2000, and that controversy doesn’t seem to have had any long-term effects at all. Admittedly, the question was officially resolved in fairly short order, but many opponents of Bush didn’t think the book was closed; I remember seeing “Re-elect Gore” .sig quotes months afterwards. The effectiveness of the government doesn’t seem to have been impaired. If we get away from government as a whole and look at specific government policies, Thatcher and Heseltine mobilised millions of people against pit closures, which went ahead anyway; Blair mobilised millions against British involvement in the second Iraq war, to no effect. (Both Blair and Thatcher did eventually step down, but not for another four and five years respectively.) Conversely, if we think in terms of questioning the ‘birthright’ of an individual political leader, we need look no further than the MP for Doncaster North: the legitimacy of his election to lead the Labour Party has been weighed and re-weighed by the right-wing press, and found wanting every time. Not only is Ed Miliband still the leader of the Labour Party, he has the distinction of being the leader of the Labour Party who broke with the Murdoch press and halted a US-led drive to war with Syria – not the sign of somebody who “can’t take difficult decisions” for all the awkward questions people keep asking.

The idea that the SNP would have blackmail power over a minority government is an odd, sensationalist misrepresentation of the position any junior partner occupies in that situation, including the Lib Dems over the last five years; there’s no reason to believe an agreement with the SNP would be any more volatile than the Tories’ agreement with the Lib Dems, assuming of course that an equally binding agreement was reached. (If the larger party doesn’t offer the SNP an agreement, but challenges it to support a minority government, volatility is guaranteed – but that’s not the SNP’s doing.) The idea that the ‘birthright’ of a government needs to be unimpeachable if the government is to operate is even odder. In fact, this doesn’t seem to have any basis in reality at all: as long as the government can get things done, how it came into being doesn’t matter.

On inspection, Clegg’s idea of securing the birthright of the next government seems to boil down to the slightly more mundane idea that any minority government should be led by the largest single party: “the party with the greatest mandate from the British people” is “the party that has the right to try to assemble a government first”. Perhaps Clegg’s undertaking that “Liberal Democrats will ensure that any government is legitimate and stable” simply means that the Lib Dems will refuse to join any coalition not led by the largest single party – and will denounce any such coalition formed without them. I’m sure we’re all lucky to have such guardians of constitutional rectitude to hand. Or are we? This government has, unusually, published a manual documenting how the government works – the two houses of Parliament, the Cabinet, relations with the devolved governments, the works. What the Cabinet Manual says on this topic is

Prime Ministers hold office unless and until they resign. If the Prime Minister resigns on behalf of the Government, the Sovereign will invite the person who appears most likely to be able to command the confidence of the House to serve as Prime Minister and to form a government.

it remains a matter for the Prime Minister, as the Sovereign’s principal adviser, to judge the appropriate time at which to resign, either from their individual position as Prime Minister or on behalf of the government. Recent examples suggest that previous Prime Ministers have not offered their resignations until there was a situation in which clear advice could be given to the Sovereign on who should be asked to form a government. It remains to be seen whether or not these examples will be regarded in future as having established a constitutional convention.

An incumbent government is entitled to wait until the new Parliament has met to see if it can command the confidence of the House of Commons, but is expected to resign if it becomes clear that it is unlikely to be able to command that confidence and there is a clear alternative.

Where a range of different administrations could potentially be formed, political parties may wish to hold discussions to establish who is best able to command the confidence of the House of Commons and should form the next government.

And, er, that’s it. As you can see, the ‘largest party goes first’ principle isn’t there; it’s a reasonable description of the Lib Dems’ behaviour in 2010, but nothing in constitutional principle made them do it. Nor will they be able to claim constitutional backing for such an approach this year. Interestingly enough, what we may call the Clegg Principle did appear in a draft of the Cabinet Manual, but it was removed in 2011 (Tristram Hunt, who is a historian and knows precedent-setting when he sees it, referred to this as a “Liberal Democrat attempt to change our constitutional procedures”). There are many ways to approach coalition formation: we could argue that the ‘formateur’, charged with pulling together a coalition of its allies, should be the party with the best chance of gaining an overall majority; or we could give the role to the party with the main responsibility for the previous government falling; or we could start by eliminating any parties whose vote has dropped since the previous election, then apply one of the other tests. Alternatively, perhaps the formateur should (as Clegg says) be the party with the ‘greatest mandate’, but this in turn could mean a number of things: the largest single party; the party with the highest vote; the party whose vote has risen the most in absolute terms; the party whose vote has risen the most in proportion to its previous vote… I very much doubt that’s an exhaustive list of approaches. The idea that a coalition is illegitimate if it’s not centred on the largest single party, or even that the largest party should always get the first go at forming a coalition, is “absurd” (in the words of Vernon Bogdanor, who knows this area fairly well).

In reality there is no reason why a government should not be formed excluding the largest single party, and in some cases this may be a very good idea: the second party may have the highest vote; its vote may have risen the most; and it will almost certainly have some responsibility for the situation in which the previous government is unable to carry on. Most importantly, it may have the best chance – or even the only chance – of gaining an overall majority. Most of these things look like being true of the Labour Party on May 8th, even if it doesn’t have the largest number of seats (although I hope it will). It may also be the case that Labour needs the Lib Dems’ support to achieve an overall majority (although I fervently hope it won’t). Even in that unfortunate situation, however, we can be fairly sure that the weight of the minor parties would be more or less unchanged. This in turn means that the Tories, even with more seats than Labour, would be a long way short of a parliamentary majority – and that it would be significantly easier to form a majority with the SNP than without them. For Nick Clegg to refuse Labour his party’s support in that context would be, at best, to usher in a ramshackle Tory/UKIP/DUP/Lib Dem alliance, which would struggle to agree any policies – let alone to get then through the Commons. A more likely result would be a Tory/Lib Dem minority government, permanently a couple of votes short of a majority, surviving from one vote to the next on temporary alliances and defections. To take that choice on the grounds that a Labour/SNP/PC/Green/Lib Dem majority government would be unstable is enough to make a cat laugh.

The Tories – and their allies – seem determined to stay in power after May 7th, majority or no majority; arguments to the effect that re-electing the Coalition would exemplify stability, legitimacy and adherence to constitutional principle are ringing increasingly hollow. Which, perhaps, is why the assault on the legitimacy of the next Labour government has taken a new and nastier turn, with the outright delegitimation of the SNP. But I’ll stop here and cover that in the next post.

Cap in hand (1)

As the dullest and most weirdly static election campaign of my adult life drags to a… hold on, let’s check that. 1979 was a historic disaster; 1983 was all the fun of having our faces rubbed in it, with the added piquancy of some terribly nice middle-class people splitting the Left down the middle and doing Thatcher’s dirty work for her. 1987 wasn’t all that dramatic, Kinnock: The Movie apart – Labour did well, but it would have been surprising if they’d done well enough to win. It left the Tories with quite a small majority, though, and felt like a step in the right direction. 1992, on the other hand, was a crushing disappointment: lots of us thought that Labour could at least manage a hung parliament – which would lead to an alliance with the Lib Dems, which would necessarily (ha!) lead to PR, which would give the Left its own voice in Parliament and generally shake things up big time. 1997, well. In retrospect 1997 was a bit like the SDP coming back from the grave and actually achieving the kind of mould-breaking mind-wipe they threatened to bring off in 1982; if you weren’t swept along, it was quite strange. Dull it wasn’t, though. I don’t remember much about the 2001 election, but this may be because my father died a few weeks afterwards – to say nothing of what happened a couple of months after that. Then there was 2005 – the election of ‘Backing Blair’ and the mobilisation of the anti-Iraq vote – and 2010, which was anything but dull.

So yes, this is the dullest and most static, etc. And, perhaps, the oddest. The other thing that jumps out from that quick retrospective is that the two least interesting elections in the last 40 years – 1987 and 2001 – were the ones where there was least at stake (reasonably enough): nobody really expected Labour to win in 1987 or the Tories in 2001. On paper the situation we’re in now is more like what we faced eighteen years ago in 1997, or (oddly) eighteen years before that in 1979: an exhausted governing party with no new ideas, beset by internal rivalries and dependent on deals with minor parties to get legislation through, is faced by a united opposition party with an untried but confident leader. And yet voters don’t seem to be abandoning Cameron as their predecessors abandoned Callaghan and Major respectively, and there’s no sign of a Thatcher- or Blair-scale swing to Miliband. In fact, nothing seems to be happening at all. Well, perhaps not nothing; I’m as fond of psephological close-reading as the next geek, and it is the case that – although the last crop of polls wasn’t obviously favourable to Labour – every one of them represented either an increase in Labour preferences or a drop for the Tories relative to the previous poll from the same polling organisation. Zoom out a bit, though, and it’s hard to deny that very little has happened since January.

(Chart c/o UK Polling Report.) Feel the stasis! A few Kippers have drifted back to the Tories and a few Greens back to Labour and the Lib Dems, but otherwise we are still pretty much where we were.

Which is to say, we are still facing a post-election impasse that will make the arithmetic of 2010 look like child’s play. All the projections point to a hung parliament, and one that can’t be turned into a stable majority by simply putting two parties’ MPs together, as Cameron and Clegg did in 2010. What’s more, it looks as if these conditions are here to stay. Look at this chart:

Screen shot 2015-04-26 at 18.08.57

(The last column is a projection, but everything up to there shows what actually happened.) Look, in particular, at what happened along the top of the chart in February 1974, 1983 and 1997. Although there were Ulster Unionists in each of the parliaments prior to 1974, it was only in February 1974 that they stopped automatically voting with the Tories; from that point on they could be filed under ‘Others’. The Liberals also got a boost that year – getting into double figures for the first time since 1950 – while the first SNP surge took them to 11 MPs in October 1974. In 1983, following the number the Gang of Four had done on the Labour party, the SDP/Liberal Alliance doubled the Liberals’ previous number of MPs – from 11 to 23. Then in 1997, with the collapse of the Tory vote, the Liberal Democrats had another leap forward, taking 46 seats; the same year, the SNP took 6 (having previously fallen back to 3).

What’s particularly striking is that, despite the ebbs and flows in particular parties’ representation (and the Lib Dems are headed for another ebb this year), the direction of travel is fairly constant: 1974, 1983 and 1997 weren’t turning points so much as inflection points in the gradual disintegration of a parliamentary duopoly. Plurality voting in single-member constituencies is notoriously slow to register shifts in public loyalties, but they get picked up eventually – and once they’ve been registered they aren’t entirely forgotten. People get out of the habit of voting either Labour or Tory – at different times and for different reasons, but once it’s happened it remains an available option. And once it’s happened on a larger scale, it remains an option available to a larger number of people. The process never seem to go into reverse for very long or by very much. The picture’s clearer in this simplified version:

Screen shot 2015-04-26 at 18.10.23

The 1945 Parliament had an unusually high rate of representation of small parties, particularly on the Left – Independent Labour Party, Common Wealth, Communist. Even then, the combined parliamentary strength of the Labour and Tory parties amounted to over 96% of the House of Commons; between then and 1974 it only dropped below 98% once. (And no, I’m not excluding Northern Irish seats: there was little or no Nationalist representation in this period, and the Unionists took the Tory whip.) The Labour/Tory figure fell to below 95% in 1974 and continued to fall, dropping below 94% in 1983, below 90% in 1997 and falling to 85.8% in 2005. Unless something very unusual (relative to current poll data) happens on May 7th, the figure in the next Parliament will be similar – which is to say, Labour and the Tories between them will have around 560 MPs total, out of 650 (the 2005 figure was 554 out of 646).

What this means is that, over time, a ‘small party’ group of MPs has been developing, which can’t be ignored in the way that the six Liberals in the 1959 parliament could be. In 2015, for the third election running, that group looks like numbering 85-90. This in turn means that thinking about overall majorities has got a lot more difficult. In 1964 Labour took 51% of those seats that were either Labour or Tory and gained an overall majority, with 50.3% of all seats. In 2010 the Tories took 307 seats – 54.3% of the Labour/Tory bloc but only 47.2% of all seats. You can see how the two ratios – largest party / total and largest party / largest + runner-up – have diverged over the years here:

Screen shot 2015-04-26 at 20.23.09

The gap between the red and blue points in 2010 – the difference between an overall minority and a substantial majority of Labour/Tory seats – is the result of a ‘minor party’ bloc of 85 MPs. If we hold those 85 seats constant, the only way for the Tories to gain an absolute majority would have been to raise their share of the Labour/Tory bloc to 57.7% – and, while this kind of domination was achieved by Thatcher and Blair in their time, it was clearly beyond Cameron’s reach. The projection I’m using for 2015 has Labour as the largest single party, with 295 seats – 52.9% of Labour or Tory seats, but only 45.4% of the total; again, only a huge victory over the Tories would give an overall majority, and this doesn’t currently seem remotely likely. The same goes for the Tories, mutatis mutandis; while we don’t know which of the two will be the largest party on May 8th, by that same token we can be reasonably confident that there are no landslides in the offing.

This isn’t to say that major-party hegemony is a thing of the past – on the contrary, the hegemony of the major parties is alive and well. But these figures do suggest that the major parties’ duopoly is (a) gone and (b) not coming back: from here on in, nobody gets to form a government on their own. In that context, Labour has an enormous advantage over the Conservatives: from the radical leftists of the Green Party to the reactionaries of the DUP, everyone wants to work with them. The only party that has overtly expressed a preference for a Conservative-led government is UKIP, and that’s an endorsement which the Tories might prefer to be without. (To be fair, Nick Clegg on behalf of the Lib Dems has said something similar through the medium of nudges and winks – but he’s also said he rules out working with UKIP, which would make a blue/orange/purple rainbow alliance a bit problematic.)

The SNP in particular is going to be a major presence in Parliament after May 7th; they have made it quite plain that they’re ready and willing to work with Labour, and that they’ve got no interest in working with the Tories. It’s a major weakness for the Tories, and a major asset for Labour. So why are the Tories currently working so hard to advertise this weakness as if it was a strength – and denouncing Labour’s strength as if it was a weakness? And why on earth is Labour letting them?

(Some answers in part two.)

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…

You know how it is

I want Labour to win this election, but they’re not exactly going all out for my vote at the moment. I learned this morning, courtesy of Obsolete, that Labour stand for sending people to prison for possession of drugs for personal use – at least, they attack the Lib Dems for not supporting this policy. I wouldn’t say it’s having the opposite of the intended effect: never mind a nose peg, you’d have to stuff my nose with garlic, coat my eyes with butter and fill my ears with silver (and the rest) to make me vote Lib Dem. But Labour certainly aren’t calling me home.

This, of course, comes on top of That Mug. Now, being a pedant to my bones – and having worked for a publishing and events company – my immediate reaction to this story was to point out tetchily that it wasn’t a matter of one mug; we were talking about Those Mugs plural, which is to say That Marketing Strategy for Those Pledges plural. But, if anything, this makes matters even worse for Labour: if “why that mug?” was a good question, “why that pledge?” is an even better one. If the Labour Party, going into an election it needs to win, wants to highlight five pledges – five commitments encapsulating what the party will do in government – why on earth should one of them be ‘Controls on immigration’? (Particularly since our membership of the EU makes controlling EU immigration extremely problematic, as everyone involved knows perfectly well.)

Paul Bernal has an excellent list of alternative pledges. Any one of them would be an improvement; in fact, I think Paul’s pledges 1, 2, 3, 6 and 7 would make good replacements for all five of Labour’s. An interesting discussion of the ‘immigration’ pledge itself – and its importance to the voters – has also developed in the comments box. Since I’m one of the main participants, I’ll continue it over here. It began with a comment on the salience – and relative visibility (or at least audibility) – of Eastern European migrants, as distinct from those who have come to Britain from the New Commonwealth. (And with whom UKIP, and others playing the migration card, are of course absolutely fine; the new anti-migration politics is not racist in any way, shape or form. Mostly.) Here’s the comment:

One other point, white migrants from Eastern Europe locally stand out because they are white and quite often not speaking English amongst themselves. We are used to people of non white descent speaking languages other than English to the point where it goes almost unnoticed and unremarked.

In response, I pulled out this quote from the papers in 2010, when Thatcher’s 1979 obiter dicta in Cabinet became available under the 30-year rule.

[In July 1979, the then Prime Minister Margaret Thatcher] said that “with some exceptions there had been no humanitarian case for accepting 1.5 million immigrants from south Asia and elsewhere. It was essential to draw a line somewhere”. [Deputy Prime Minister] Mr Whitelaw entered the debate, suggesting to the prime minister that refugees were a different matter to immigrants in general. He said that according to letters he had received, opinion favoured the accepting of more of the Vietnamese refugees. Lady Thatcher responded that “in her view all those who wrote letters in this sense should be invited to accept one into their homes” … “She thought it quite wrong that immigrants should be given council housing whereas white citizens were not.”

Lady Thatcher asked what the implications of such a move could be given that an exodus of the white population from Rhodesia – now Zimbabwe – was expected once majority rule was established. She made clear, however, that she had “less objection to refugees such as Rhodesians, Poles and Hungarians, since they could more easily be assimilated into British society”.

Emphasis added.

(In passing – “all those who wrote letters in this sense should be invited to accept one into their homes”! Stay classy, Margaret.)

So in 1979 it’s obvious that Asians are harder to assimilate than Poles – they’re not White!
And in 2015 it’s obvious that Poles are harder to assimilate than Asians – they’re not non-White!

My interlocutor replied:

I am not condoning these attitudes, but seeking to understand and explain them. I am afraid the migration is wonderful (stick your fingers in your ears) etc approach will not change hearts and minds, unless those advocating it address the concerns of those not sharing that view.

Perception is reality, even if there is very little evidence to support that perception. And you are not going to change the perception by saying let us have uncontrolled migration.

Which raises the question of how an evidence-free perception can be changed – not with evidence, presumably. I thought about this a bit more and came up with the following, which (as you can see) got too long for a comment box.

Thinking some more about this notion of ‘real concerns’ which underlie expressions of racism, there are two points I’d make. First off, there is a very general tendency to be prejudiced against people who are Not Like Us, particularly if those people are in a minority and visibly (or audibly!) different. Most of us outgrow these feelings, recognise them as unworthy or at worst learn to repress them; more importantly, most of us have life experiences which tell us on a personal level that ‘those people’ are Like Us, that some of ‘them’ are Us. (All the more so in recent decades – my son had more non-White friends at school than I ever did; come to think of it, more than I ever have.) But some people never have those experiences, aren’t very reflective or generous-minded and don’t mix with people who are, and those people will have a genuine, personal, emotional reaction to the arrival of more of ‘those people’. (My grandmother, God rest her, went to her grave convinced that Indian cooking was ‘dirty’. “She probably thinks the brown comes off their fingers,” my mother said.) I don’t know what’s to be done about people like that, except for God’s sake not to encourage them. They do not have very real concerns. Their views are not valid. Yes, there was a time when we all used those words. No, you can’t say those things any more. Good.

Secondly, at the moment I live in an area with very real pressure on services. The local primary school, an Edwardian structure with ‘BOYS’ picked out in stonework over one of the entrances, recently put on a third year-group (i.e. an expansion in capacity of 50%), with extensive new building to accommodate it (they essentially built another school on top of the school); getting a doctor’s appointment has been a pain for a while, but following a recent reorganisation it’s now a pain and a half. What does this tell me? The expansion of the school tells me that pressure on services can be met with an expansion of service provision. The reorganisation of the health centre tells me that if service provision doesn’t expand in response to pressure (perhaps being subjected to a half-arsed reorganisation instead), that’s the problem. What doesn’t occur to me – genuinely doesn’t occur to me, any more than it would occur to me to wear shorts to work – is to blame the people who have moved into the area.

This, clearly, is what’s going on when people voice their very real concerns, so it may be worth establishing why it is that I don’t do it. It may be because I’ve no idea who those incomers are, or even if there is any identifiable group of incomers (people may have stopped moving out; older people may have died and younger people, with families, moved into their old homes; there are a variety of possible scenarios). It may be because I’m a well-meaning Guardian reader, or – relating back to the first point – that I’ve been socialised to beware of prejudice and to try and make sure my beliefs are supported by evidence. But I think the most important factor – my most important value in this respect – is the conviction that you don’t kick down. If someone’s in the same boat as you – or even worse off than you – you may not extend a friendly hand; you may not particularly like them or want them around you. But you don’t blame them for what’s wrong with the world. This seems like basic common sense to me: politically speaking, there are people running things (stop me if I get too technical), and if things are running badly it’s basically going to be their fault, by and large. Down here at ground level – down among the wage slaves and the ‘consumers’ – the way things are is basically not our fault, except in the sense that we’re all perpetuating an unjust system through wage labour and commodity consumption; and in a Marxist perspective even that’s scarcely our fault, morally speaking. If the people in power screw things up, somebody in a position of power needs to put them right. If there’s not enough to go round, you demand more for everyone; if there’s not enough room in the lifeboats, you demand more lifeboats (or equal shares in what lifeboats there are). This, I think, is what was both wrong & deeply right about the Lindsey wildcat strike – the one that had the slogan ‘British jobs for British workers’ hung on it (mostly, it has to be said, by non-participants). To say that British jobs should, in general, be reserved for British workers is to blame the (foreign) workers for the competition they introduce. What the Lindsey strikers actually attacked – correctly – was the bosses’ action in importing an entire workforce, unilaterally removing a source of employment from workers living in Britain (and, incidentally, imposing differential pay rates). Workers are not the problem; deprivation of work is the problem, and it’s not the workers who are doing that. Immigrants are not the problem; service shortages are the problem, and it’s not the immigrants who are creating them.

How to address the concerns of people who want to see controls on immigration (and who, presumably, will be more likely to vote Labour if the party offers them)? Tell them they’ve forgotten something very important: you don’t kick down. (I say ‘forgotten’; they may never have known it in the first place, but it’s kinder not to remind them.) It’s not about well-meaning liberals telling hard-pressed working people that “migration is wonderful” (“Love your neighbour, wherever they’re from” as Ian Dury put it). It’s about who’s causing the problems and who isn’t; where solutions are going to come from and where they aren’t; who they – and all of us – should be angry with, and who we shouldn’t. There’s a lot at stake here: there’s a great deal of latent anger out there (some of it not entirely latent), and if we get the wrong result in May it could easily be channelled in some very unpleasant directions. I know Labour’s leadership are aware of this; I had hoped they would act, and campaign, accordingly.

On inspection, incidentally, Labour’s actual proposals for controlling immigration turn out to be the enforcement of the minimum wage and an unpleasant but largely meaningless clampdown on the ‘benefits tourism’ non-problem. So they actually aren’t kicking down to any great extent. But, by the same token, they’ve left an open goal for any political opponent or hostile interviewer: the pledge says ‘Controls on immigration’; where are they? All in all it’s dreadful stuff. The idea seems to be triangulation, straight out of Bill Clinton’s playbook – pitching a left-wing policy in language that ticks the Daily Mail‘s boxes – and, absent a leader with Bill Clinton’s personal charisma and charm, I don’t believe it can possibly work.

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.

Dangerous decisions? (1)

On the face of it, the Supreme Court judgment in Moohan and the Divisional Court decision in the case of Unison (No.2), R (on the application of) v The Lord Chancellor don’t have a lot in common, other than both being delivered in the last couple of days. In one case, a prisoner challenged the legality of the Scottish Independence Referendum (Franchise) Act 2013, on the grounds that its exclusion of prisoners from voting in the referendum was counter both to Article 3 of Protocol 1 of the European Convention on Human Rights and to the (putative) common law right to vote. In the other, the union Unison 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. In both cases the decision went against the claimant.

I think they do have something in common, both in the way they were decided and in the reasons why they were brought. In this and the next couple of posts I’ll be explaining why I think both of these were bad – and dangerous – decisions. (Background and discussion: Mark Elliott on Moohan; Lauren Godfrey on Unison (No.2), R (on the application of) v The Lord Chancellor.)

Moohan first. The Supreme Court was divided in Moohan, but the majority drew a fairly straightforward distinction between the Scottish referendum and the ECHR’s

free elections [to be held] at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature

and thereby carried out one of the least lovable but, arguably, most important functions of the courts: telling claimants that, however good their case might seem, they can’t win it that way. (Lords Kerr and Wilson argued that the referendum was, potentially, the first stage in the formation of a new legislature and hence did in fact engage the people’s right to free expression in the choice of legislature. This seems like a stretch.)

Anyway, so far so uncontroversial – a disappointing outcome for believers in prisoners’ votes, but a reasonable one. The problems start, for me, with the subsidiary ‘common law’ argument. I’ll quote from the case report. Have patience; I’ve cut the quotes down as far as possible, but no further.

Lord Hodge:

I do not think that the common law has been developed so as to recognise a right of universal and equal suffrage from which any derogation must be provided for by law and must be proportionate. … for centuries the right to vote has been derived from statute. The UK Parliament through its legislation has controlled and controls the modalities of the expression of democracy. It is not appropriate for the courts to develop the common law in order to supplement or override the statutory rules which determine our democratic franchise. … [A] common law right of universal and equal suffrage … would contradict sections 2(1)(b) and 3(1) of the 1983 [Representation of the People] Act. … the appellants’ proposition has to be tested against the provisions of the 1983 Act. So tested, I am satisfied that there is no common law right of universal and equal suffrage

While the common law cannot extend the franchise beyond that provided by parliamentary legislation, I do not exclude the possibility that in the very unlikely event that a parliamentary majority abusively sought to entrench its power by a curtailment of the franchise or similar device, the common law, informed by principles of democracy and the rule of law and international norms, would be able to declare such legislation unlawful. The existence and extent of such a power is a matter of debate … But such a circumstance is very far removed from the present case, and there is no need to express any view on that question.

Lady Hale:

It would be wonderful if the common law had recognised a right of universal suffrage. But, as Lord Hodge has pointed out, it has never done so. The borough franchise depended upon royal charter. The “40 shilling freehold” county franchise appears to have been the creation of Parliament. Every subsequent expansion of the franchise, from the great Reform Act of 1832 onwards, has been the creation of Parliament. It makes no more sense to say that sentenced prisoners have a common law right to vote than it makes to say that women have a common law right to vote, which is clearly absurd.

Lord Kerr (who dissented from the majority decision):

The common law can certainly evolve alongside statutory developments without necessarily being entirely eclipsed by the latter. And democracy is a concept which the common law has sought to protect by the incremental development of a system of safeguarding fundamental rights. … It is therefore at least arguable that exclusion of all prisoners from the right to vote is incompatible with the common law. … I acknowledge, however, the force of the point made by Lord Hodge that, insofar as a claim to a common law right to vote conflicted with sections 2(1)(b) and 3(1) of the Representation of the People Act 1983, it could not succeed.

Lord Hodge’s argument is, surprisingly, both crude and incoherent. Crudity in legal argument isn’t necessarily a bad thing – sometimes “you can’t do that” is all there is to say – but incoherence is more of a concern. The question at issue is whether a common law right can take precedence over a specific statutory provision. Hodge’s reply is that this can’t happen, because if it did the result would be… to give a common law right precedence over statute: “the appellants’ proposition has to be tested against the provisions of the 1983 Act”; “a common law right of universal and equal suffrage … would contradict sections 2(1)(b) and 3(1) of the 1983 Act”. You can’t do that, in other words, because that is a thing that you can’t do.

It’s a circular argument – and a tight circle at that – but that’s not to say that it’s invalid. The argument gets more difficult – and, I would say, incoherent – when Hodge argues that, while the common law cannot extend the franchise, it could if necessary prevent its curtailment. But if, for example, a Disenfranchisement (Females) Act had been passed into law (and it wouldn’t have much effect until it had), then to “declare such legislation unlawful” would be precisely to “extend the franchise beyond that provided by parliamentary legislation”: parliamentary legislation would have provided that women should not vote. Hodge could argue that the ‘curtailment’ argument referred specifically to drastic measures in resistance of a parliamentary coup, and make the distinction with the prisoners’ votes issue that way: nobody would argue that the clauses in the 1983 Act debarring prisoners from voting represent “a parliamentary majority abusively [seeking] to entrench its power by a curtailment of the franchise”. But then the question is back with Hodge: why should “the common law, informed by principles of democracy and the rule of law and international norms” not have a voice when less extreme encroachments on democracy are at issue? Hodge’s argument seems to be that the common law should be like King Arthur and lie sleeping until England’s hour of need; I don’t see how he justifies this assumption.

Lady Hale’s argument is more coherent, but coherence is bought at rather a high price. She argues that voting rights are, have always been and will always remain a creature of statute; this has the slightly alarming implication that (contra Hodge) there would in fact be no common law case against the Disenfranchisement (Females) Act. Faced with a conclusion like this, it’s worth asking where the argument went astray. It’s certainly true that there was no common law right of universal suffrage until universal suffrage had been established by statute; however, I don’t think this entitles us to conclude that there is now no such right. The assumption in Hale’s argument seems to be that the common law is some sort of pre-statutory substrate dating back to King John, by now very largely paved over by successive efforts to legislate and codify. Hodge’s argument suggests a very different way of thinking about the common law: as a body of shared and more or less clearly articulated assumptions; a framework in which to think about, and debate the limits of, socially-responsible law-making and interpretation of laws. As far as universal suffrage is concerned, in any case, the line between the arbitrary inventions of statutory enactment and the realignment of legislation with common law principle cannot be drawn as clearly as Hale would like. If 1832 and 1867 redefined the franchise, it could be argued that the franchise extensions of 1928 and 1969 represented reactive vindications of the principle of universal suffrage, in the light of changing understandings of the meaning of ‘universal’. Lady Hale’s argument suggests that there is no particular reason why the franchise was extended to all 18-year-olds in 1969, and not to (for example) only those 18-year-olds whose parents had at least one higher degree, or all 18-year-olds plus 17-year-olds whose surname began with a P. Common law principles articulating themselves through statutory enactment? Perhaps that would be a mystification, but Hodge’s model of “common law, informed by principles of democracy and the rule of law and international norms” seems relevant here. Certainly it would seem to fit the bill better than a kind of sawn-off positivism, which declares that all there is to say about (electoral) law is that it is what the executive happens to have declared to be law.

Lord Kerr’s argument, lastly, is more subtle than Lord Hodge’s but even less coherent. He acknowledges that the common law has developed pari passu with statute, and that it may represent a resource of principles by which to judge, and potentially disqualify, statute-made law. He even floats the possibility that the common law might judge the exclusion of prisoners from voting and find it wanting. His argument comes back to earth with a bump, however, with a qualified acknowledgment of Hodge’s argument, that a common law principle cannot overrule a statutory provision. And, of course, if that’s the case there’s no argument to be had here. (Except that Hodge himself acknowledged that it’s not invariably or necessarily the case…)

We’re used to legislation being ‘read down’ to comply with the European Convention on Human Rights; the provisions of the ECHR are treated, if not as a hard limit, certainly as a hard reference-point, any conflict with which needs to be managed down and (as a last resort) flagged up. What this means is that there is a stock of individual rights which (it is generally acknowledged) government action and statutory law-making are expected to respect, however imperfectly these rights may be vindicated in practice. This isn’t the only way to vindicate citizens’ rights against the law and government, and may not be the best; it involves a reliance on (on one hand) the text of the Convention and (on the other) the specialised jurisprudence of its professional interpreters, with the alternate risks of treating the text as holy writ and reading contemporary assumptions (not to mention contemporary debates and contemporary jargon) into it. Personally, I have a temperamental sympathy with the idea of deriving such rights and safeguards from common law; it chimes with my Fullerian views on the law as an inherently moral project. But Moohan, and these rather scrappy comments from three Lords of Appeal in Ordinary, suggest that this may be a utopian prospect.

The Court paid little attention to the current government’s entrenched opposition to giving prisoners the vote, and rightly so. 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. Good job there’s no realistic prospect of Britain repudiating the ECHR, eh readers?

Update 21st December

One enterprising visitor yesterday found their way to a previous post on this topic (which I’d completely forgotten), The barren weeks. In that post, written in 2011, I quoted Lord Wilberforce’s dictum from 1982 – “under English law, a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication” and described this as a statement of ‘the common law position’. What I didn’t do in that post was to acknowledge that the vote was one of those rights which had been ‘expressly’ taken away: prisoners’ voting rights in England and Wales – always circumscribed – were removed in the Representation of the People Act 1969, and this ban was restated in the 1983 Act.

In the 2011 post I denounced the voting ban as running flatly counter to the position expressed by Wilberforce. This was hasty; a more attentive reading shows that Wilberforce’s statement is entirely compatible with prisoners being statutorily deprived of the vote – or any other identifiable right, for that matter. In fact, the apparent contradiction between Wilberforce’s statement and the relevant legislation demonstrates how accommodating the common law can be, and will tend to be. I asked yesterday whether common law could take the activist role envisaged by Lord Hodge in relatively normal conditions. Perhaps it’s also worth asking whether even a catastrophic governmental assault on the rule of law would rouse the common law from its complaisance – and whether we would recognise such an assault in time.

WIP 3: (Should we) counter radicalisation?

Lastly, here’s the abstract of a paper which has been published in the Routledge collection Counter-Radicalisation: Critical Perspectives (Heath-Kelly, Jarvis and Baker-Beall (eds)):

How (not) to create ex-terrorists: Prevent as ideological warfare

Phil Edwards

When the ‘Prevent’ programme was developed in 2003, and announced publicly three years later, it proffered the policy aim of ‘preventing terrorism by tackling the radicalisation of individuals’. Prevent has now become a permanent fixture on the counter terrorist scene, rearticulated across the manifestations of the CONTEST strategy. However this apparent continuity in policy and implementation may not only produce the impression of a single continuing Prevent project, but—more importantly—lead the integrity of the project to be read back into its conceptual basis. Key questions risk going unasked: whether there is a distinct experience of ‘radicalisation’; if so, how strong an association there is between radicalisation and subsequent terrorist involvement; and, if such an association exists, whether a concerted programme of state-driven de radicalisation measures is likely to be viable and productive. This chapter will review the current state of the Prevent programme. It will argue that the government’s approach to counter-terrorism has been characterised by two distinct models of radicalisation and de radicalisation, the key distinguishing factor being the salience given to ideological as distinct from social factors. The significance of ideological factors in the literature on desistance from crime will then be reviewed, focusing on the interaction between social and situational changes on one hand and subjective and ideological changes on the other, and on particular types of subjective change which do and do not promote desistance. Reference will then be made to a qualitative study of desistance from gang involvement, which will suggest some ways of conceptualising the belief factors which may be involved in desistance from political as well as non-political crime. These will provide a frame of reference for suggestions as to how government interventions to reduce organised political violence might best be organised, and a concluding discussion of the ideological focus of the Prevent programme.

And here’s one which has been reviewed and provisionally accepted for a special issue of Studies in Conflict and Terrorism next year:

Closure through resilience: the case of Prevent

This paper argues that resilience in the face of terrorism, at the level of a political system, is best conceptualised as a response to disruption of the political sphere leading to the destabilisation of political relationships; this disruption is triggered not by violence as such, but by the forceful incursion of a would-be political actor denied representation and legitimacy. The challenge posed by political disruption and destabilisation is related to a typology of political systems, suggesting that the most resilient political systems are also those exhibiting executive unity together with a high degree of democratic openness. The ideological negotiation required to deal with political disruption is related to the model of the social movement ‘cycle of contention’; it is argued that engagement with terrorist disruption may similarly take both inclusive and exclusive forms, with consequences for the openness and hence the future resilience of the system. The arguments and appeals used to support the British government’s ‘Prevent’ counter radicalisation initiative, launched in 2003 and reworked in 2009 and 2011, are analysed as a source of data on a process of engagement with a disruptive political incomer; the engagement is shown to be emphatically exclusive.

WIP 2: Public nudity and the future of the ASBO

Then, back in October, I wrote a short piece for The Conversation. I recommend it: they were an absolute pleasure to work with, and it meant my work reached a four-figure audience with very little effort on my part. Here it is:

How the end of the ASBO could make naked ramblers of us all

By Philip Edwards, Manchester Metropolitan University

Stephen Gough – widely known as the Naked Rambler – has lost his case at the European Court of Human Rights in Strasbourg, which disagreed that his repeated convictions and jail terms violated his rights to private life and freedom of expression.

It’s just the latest in a series of setbacks for Gough, who had just seven days of liberty between May 2006 and October 2012. Earlier in 2014, he was arrested as he left the prison where he had just completed a 16‑month sentence for public nudity. A police officer approached him, wearing his signature outfit of socks, boots and rucksack, and offered him a tracksuit to put on. When he refused, he was arrested and remanded pending trial.

On October 6 he was sentenced to two and a half years in prison. If, at the end of his current sentence, Gough once again walks out of prison au naturel, the same thing will presumably happen again.

Given the Court’s decision, Gough’s nudism seems likely to confine him to prison and police cells indefinitely – odd, given that public nudity is not a crime. There is a criminal offence of “disorderly behaviour”, and Gough has previously been found guilty of it. But that wouldn’t get him locked up, since the maximum penalty is a fine.

There is also an offence of “exposure” (maximum sentence two years) – but to be found guilty of this you have to have displayed your privates with the intention of causing alarm or distress, and Gough has shown no such motivation.

Why, then, is he serving a sentence longer than any he would have got for being a flasher? Because of an ASBO.


Gough is under an anti-social behaviour order banning him from appearing in public with his buttocks and/or genitals exposed (considerately, the order makes an exception for nude beaches). The sentence for breaching an ASBO can be as high as five years in custody; if there are repeated breaches, it’s expected that each new sentence will be higher than the last. So: 16 months last time, this time 30.

An ASBO can be given to anyone acting in a way that causes, or is likely to cause, harassment, alarm or distress. We do not know that Gough’s nudity had offended anyone, but his ASBO could be justified on the basis that somebody was likely to take offence sooner or later.

Once the ASBO was imposed, on the other hand, Gough was in trouble the moment he breached it; the question of how much offence he was causing (if any) became irrelevant. In effect, appearing naked in public is now illegal, for one person – the one person most committed to doing it.

And given Gough’s sincere personal commitment to going naked, it’s hard to see a way out.

His ASBO has no time limit, as do many of those currently in force. ASBOs are sometimes lifted, but usually on the basis that the problematic behaviour has ended. Gough has had no success appealing against earlier convictions, including one case in which a district judge declared that public nakedness was not only disorderly but met the standard of “insulting, abusive and threatening” behaviour.

Unless Gough can persuade his next jury that his beliefs are a reasonable excuse for breaching his ASBO, another conviction is inevitable.

The good news, on the face of it, is that ASBOs are on the way out. An act replacing the ASBO was put before Parliament in 2013 and became law in March 2014, meaning the new injunction powers should finally be available early in 2015.

The bad news, though, is depressing indeed: the new regime offers little hope for people in Gough’s situation. Not only will existing ASBOs remain in force, but the new injunctions for anti-social behaviour will be even easier to impose – and their power will arguably be even more controlling.

Contempt and contrition

An injunction can be served on someone who “threatens to engage” in anti-social behaviour. In the residential context, the bar is set still lower, with anti-social behaviour defined as “conduct capable of causing housing-related nuisance or annoyance”. The new injunctions can also included positive requirements as well as prohibitions.

Unlike an ASBO breach, breaching the new injunctions is not a criminal offence; rather, it is contempt of court. That means that instead of standing trial, an individual who breached an injunction would face a committal hearing. If contrition was expressed, the contempt would be “purged”; if not, the judge would pass sentence, which could be anything up to two years in prison. Contempt does not create a criminal record, but this is cold comfort.

For a nonconformist like Gough, or anyone else whose behaviour might be deemed anti‑social, the new powers are alarmingly draconian. Jury trial for an ASBO breach at least offers the remote possibility of acquittal; a judge, sitting alone, will have no reason to look beyond the facts of the conduct amounting to contempt.

The ASBO is widely agreed to have outlived its usefulness. Unfortunately, its replacement looks set not just to retain most of the ASBO’s negative features, but to add some more of its own.

From 2015, individuals whose harmless and legal behaviour causes offence will start to be subjected to lifelong packages of personally-tailored coercion, including positive requirements as well as prohibitions, all under the ever-present threat of a prison sentence.

Stephen Gough’s situation might seem extreme today – but in a few years, it might be all too familiar.

The Conversation

This article was originally published on The Conversation.
Read the original article.

WIP 1: The rule of law – beyond or towards?

Sorry about the long silence. I’ve been reading a lot about strict liability, for reasons connected with the critique of regulatory justice which I’ve been playing with for the last several years: only another book and about a dozen papers to read, and then I can definitely start rewriting it, probably. I’m planning to read The Concept of Law for a third time, but accompany each chapter with the relevant chapter in the anthology Reading HLA Hart’s The Concept of Law; I’m sure that’ll make for some top blogging. And I’ve got a couple of papers to write, and a project to plan, and then there’s teaching, not to mention marking.

Anyway, here’s what I’m working on at the moment. I’m not sure if all the angles trailed in the original abstract will make it into the finished paper – the idea of gangs as sites of ‘wild’ regulation is one I keep meaning to get round to exploring – but I’ll do my best. This is for an anthology being put together for 2015 publication by the European Group for the Study of Deviance and Social Control, for whose 2014 conference on abolitionism it was originally intended (I wasn’t able to attend due to illness).

Law after law? Abolitionism and the rule of law

According to Simmonds, the law has an inherent morality, making it an intrinsically valuable social project; Waldron argues that the institutions and practices making up the rule of law encapsulate, and may constitute, key virtues of the concept of law. However, this liberal vision of the rule of law is predicated on two concepts which are alien to anarchist and abolitionist perspectives – the state, its authority ultimately guaranteed by unchallengeable coercive power, and its antagonist the rights-bearing, self-interested individual. Can we think in terms of the rule of law without invoking state coercion or competitive individualism? Is the morality of law an ideological construct specific to the era of capitalist competition, or does it embody ideals which would remain valuable in a society not predicated on capitalist economics and state coercion? If we assume that such a society would have its own (rule of) law, how do we envisage transitional or prefigurative forms of law? This paper suggests some provisional answers to these questions, drawing on contemporary jurisprudential debates and on studies of the alternative legalities imposed by gangs and ‘armed struggle’ groups.

Hart and me

About two months ago I started reading H.L.A. Hart’s Essays in Jurisprudence and Philosophy. I’d read Hart’s The Concept of Law and found it fascinating; it sets out a model of the law to which I’m strongly opposed, but it does it in a way that leaves very little purchase for criticism. I took the volume of essays out from the library on a whim a while ago and started reading it in June.

About six weeks ago I started writing about Hart’s Essays in Jurisprudence and Philosophy, and once I’d started I found it hard to stop. By the time I reached the end of my mental list of issues on which I felt I needed to make some comment – if only to clarify my own thoughts – I’d read another thirteen papers (by Duxbury, Dworkin, Ely, Gardner, Green, Keating, Kramer, Lyons, Mackie and Rawls) and written fifteen blog posts, totalling just under 30,000 words.

I don’t know if there’s a paper in there anywhere; I’m self-taught in this area (my background’s in history) and my arguments are probably fairly basic. But I’ve enjoyed doing it.

For future reference – if only my own! – here are links to those fifteen posts, with a representative quotation from each one. Share and enjoy!


The first three posts are in response to the 1976 paper “Law in the perspective of philosophy”.

Some baby! (Hart on Nozick) (800 words)

“For Hart, a model of justice was first and foremost a model of justice as it was administered in the real world: if such a theory pointed us in the direction of greater, less compromised or better-distributed justice, so much the better, but its first hurdle was to fit the reality of justice as we knew it. In Hart’s view, by defining justice in terms of principles which could only be realised in Utopia, Nozick had succeeded only in severing his own ideal of justice from the common-or-garden justice about which other theorists wrote.”

Hart, Nozick, Dworkin (in that order) (2400 words)

“Dworkin’s argument against other-directed preferences seems to boil down to saying that majority votes – and utilitarian greater-good arguments – are problematic when they justify things that are wrong; the question of what actually is wrong remains open (and, I would add, political). It could be argued that these considerations of value pluralism have nothing to do with equality of respect – in other words, that these are arguments we would have been having anyway – but in fact that’s the point: Dworkin’s metric gives us no guidance precisely when we need it.”

Earthbound skyhooks: Rawls and Dworkin (also responds to the 1973 paper “Rawls on liberty and its priority”) (1400 words)

“Rawls – like Dworkin – takes what appears to be a very different and much more worldly approach than a frank utopian like Nozick, but on inspection there’s something quite different – and stranger – going on than a simple opposition between utopianism and realism. The difference between Nozick and Rawls isn’t that Nozick built castles in the air; it’s that when Rawls built his castles in the air, he built them on the ground.”


The next six posts all address arguments in “Rawls on liberty and its priority”, taking into account Rawls’s responses in his 1982 lectures published as “The basic liberties and their priority”.

Hart on Rawls – 1 (2100 words)

“although Rawls treats his basic liberties as discrete and distinct, to the extent that they can be balanced against one another there must be a Liberty behind the curtain which they jointly make it possible to approach – or at least a Liberty-stuff which they each in their different ways produce. If this is the case, the basic liberties are not fundamental, but different aspects or facets of the production of fungible Liberty-stuff, or of the approach to an ineffable Liberty. And if that’s the case, clearly Rawls’s list can’t be taken as definitive; the possibility that it might need to be lengthened, and – more disruptively – the possibility that it might be appropriate to trade down one or more of our current list altogether, can’t be avoided.”

Hart on Rawls – 2 (1900 words)

“Either the conflict between rival liberties can be resolved in principle (in which case let’s get on and see how we can do it), or it can’t (in which case we are leaving a lot of important questions to be settled politically – and it’s not clear what philosophical work the basic liberties are doing). Rawls appears to be putting forward a middle position, in which conflicts between liberties can be resolved at the level of principle but we don’t know how. If, as Rawls seems to be suggesting, the key factor in making the resolution philosophically possible is the nature of the adjudicator – the “representative equal citizen” with her Good-oriented rationality – then we don’t seem to be saying much more than that people would get on much better if they were nice.”

Hart on Rawls – 3 (1600 words)

“There is no theoretical or practical difficulty encroaching on liberties so as to prevent harm; societies do it all the time. However, justifying those restrictions in a coherent and generalisable way has proved to be a serious challenge for political philosophy. Rawls, oddly, doesn’t seem to say much about it, other than to rule it out on principle – because a liberty should only be curtailed for the sake of a liberty (of greater significance). Can this be accepted, and if so how?”

Hart on Rawls – 4 (2300 words)

“Rawls assumes a society of free and equal persons, each of whom is capable of two things: social co-operation, subject to the demands of fairness and promise-keeping which can be called ‘reasonable’; and ethical deliberation, within the framework of logic and value which can be called ‘rational’. In terms of entry requirements for the world of his model, Rawls has set the bar surprisingly low. To derive the priority of liberty – or any other of Rawls’s apparently idealistic or counter-intuitive formulations – we may not need to assume a world of model citizens; perhaps all we need to do is to assume that everyone is capable of working together and valuing one set of ideas more highly than another”

Hart on Rawls – a review (1500 words)

“I sense that Hart saw a deep equivocation here, between a model which could exist (in the sense that it rests on valid assumptions about human nature) and one which could exist (in the sense that the model itself represents an imaginable society). It may be that Rawls only saw himself as developing the first of these; however, to the extent that such an abstract standard can be a driver for reforms to the society we have, it must surely be possible to envisage reforms which would represent steps towards it, even if they were fated never to reach it. And, if Rawls’s model is supposed to represent something approachable (even if not attainable), we’re back to the original question: why are his subjects so nice?”

The names of the Rawls (1400 words)

Rawls, quietist: “the ideal outcome seems to be, not merely a system without injustice, but one without conflict. The point is not that conflicts of interest and diverging preferences would be taken into account, but that they would always already have been taken into account. I find it hard to reconcile this line of thinking with Rawls’s evident assumption that political processes would operate in his imagined society; I’m not sure what point politics would have. This is not, in other words, the work of someone who believes that human history has always been and always will be driven by scarcities and conflicts of interest.”

(The other names I tried out are ‘bourgeois liberal’, ‘right Libertarian’, ‘Right Hegelian’, ‘utopian’ and ‘Pragmatist’ (note capital P).)


The next post stands on its own, as does its infamously difficult subject:

Mutterings in favour of Kelsen (in response to “Kelsen visited” (1963) and “Kelsen’s doctrine of the unity of law” (1968) (2000 words)

“Hart’s arguments against Kelsen are both meticulous and dense, but they take two main forms: demonstrations that one of Kelsen’s assertions cannot be logically sustained, or has unsatisfactory implications if assumed to be true; and demonstrations that, even if true, the assertion would not do the work Kelsen claims that it does. I’m certainly not in a position to say anything authoritative about Kelsen, let alone rebut any of Hart’s criticisms. In this post I want to take on an easier target: Hart’s bafflement.”


Finally, a series of five posts relating to Hart’s debate with Lon Fuller. The focus is on Hart’s concessions to natural law theory, taking into account two papers by David Lyons. Hart suggested that Lyons’s arguments – supporting a position on natural law in some ways more severe than Hart’s – might prompt ‘considerable modification’ of his own position, although he did not (to my knowledge) follow up this suggestion.

Hart and natural law: the three concessions (2200 words)

“There are certain adverse outcomes to which we are all vulnerable, in any imaginable human society, and which – crucially – we can all bring about in others: anyone can kill or be killed, steal or be stolen from, abandon or be abandoned. Hence a certain minimum, presumptively universal, content to the law, which can without too many problems be called natural. (It might seem that deprivation of human kindness – abandonment by one person of another – is considerably less serious than robbery or violence. But consider that, in most cases where one adult can be said to abandon another, it will be unclear who has deprived whom of kindness. Ideas of abandonment come into play – and into the realm of the law – where one party is need of care and/or the other has a duty of care.)”

Hart and natural law: Lyons on formal justice (2300 words)

“In [one hypothetical] case, we know that the law is just and that a just decision is, at least, highly likely; in [another], we know that the criteria given by the law are not just, and that the possibility of a just outcome is vanishingly small. Can we still speak of injustice being done by a capriciously varied application of the law – perhaps, if the judge delays three days before passing sentence, rules on a second case in five minutes flat and reads the third sentence in a silly voice? This, surely, would be a violation of fair official treatment of which even the acquitted defendants could complain, and which would make the position of the defendants in the nightmare scenario still worse.”

Hart and natural law: Lyons on Fuller (1300 words)

“[Lyons writes:] ‘we cannot learn what use of sanctions is (or would be) unjust simply by understanding what the law is. We need to know what constitutes an injustice. And so far, our understanding of what the law is tells us nothing about that.’ On the contrary – Fuller might have answered – while ‘our understanding of what the law is’ may tell us nothing about injustice, our ordinary-language understanding of injustice tells us that the imposition of laws which could not be followed would constitute an injustice. The question of justice is engaged by the process of ascribing, to some individuals but not others, the social status of having broken a law; break the link between this status and those individuals’ past freely-chosen actions, and injustice necessarily results.”

Hart and natural law: the three concessions reviewed (3000 words)

“A striking virtue of Fuller’s argument is that it considers legal systems as a whole, arguing that they may exhibit the same merits and defects in many different ways. An individual law may be unfollowable for reasons of content, structure, administration or enforcement: because it clearly requires the impossible, or because it is drafted so badly as to be incomprehensible, or because it is liable to be changed without warning, or because it is only capriciously enforced. With this in mind, it is worth recalling the first aspect of the minimum content of natural law – the substantive element – and asking whether it may have any bearing on the other two, wholly or partly procedural, elements. If laws – some laws – are required in any conceivable human society, for the sake of bare collective survival, does this tell us something about the nature of law? Might it be appropriate – natural, indeed – to take as a starting point the assumptions that (contra Lyons) law does in fact embody the value of justice in society, and that (contra Hart) this value is of supreme moral importance?”

Hart and natural law: reactions (2900 words)

(On three papers by Matthew Kramer, Leslie Green and John Gardner)
“Kramer’s critique of Lyons is excellent, and his position on procedural justice – that it is a virtue but should not be seen as a moral virtue – seems authentically Hartian; I was not convinced by the argument by which he supported it, though. Green fills out the legal positivist background very usefully, as well as alighting on a potential connection – not necessarily one Hart had in mind – between a procedural morality of law and the minimum content of natural law. Gardner’s paper does an excellent job of presenting Hart as a liberal idealist, albeit one with a neuralgic reaction to the word ‘morality’; the argument is very much in line with my own thinking about the law, but as an interpretation of Hart I found it less persuasive.”


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