So what is the moral case for the Big Society, then? A reply.

One of my faithful commentators, Jon Rollason, in his comment on my last article, gave an excellent example of just the sort of casual assumption of righteousness by the Left I was talking about.  By casual, I mean no disrespect to the quality of his arguments, but rather to emphasise their easy assumption of virtue.  This is what we must tackle if we want to have any hope of winning the argument and making the Big Society mean anything.

Jon opened with a grand historical theory claiming that the history of this country before 1918 was one where the State was small because society was run solely for the benefit of the landowning one per cent.  Quite apart from the fact that the entire 19th century saw the growth of democratic government, this was little more than an account of the development of a more complex State.  Of course it is right that it was necessary for the State to grow where technology, trade and finance necessitate the need for regulation and more powerful central and local institutions.  The question, there, is whether the degree of that expansion and the loss of those institutions’ independence has benefited or damaged society.

But his assumption that we are only a more caring society because of the State is far more questionable.  The reality is that we are immeasurably richer than in the 19th century.  It would have been quite impossible to provide the sort of welfare, housing, health and social care of the 20th century in a society in which a measure of prosperity was the ability to provide for one’s family in the most basic way; or where a meaningful measure of the middle class was about 5, as opposed to perhaps 40, per cent of the population.  It wasn’t by any means merely the State that provided the motor of social progress; it was also friendly societies, charities, church hospitals, charitable schools (most, after 1882, funded indirectly by the State), regimental associations and almshouses.  If you actually compare the proportion of national wealth put into social welfare in the 19th century to that provided by the State in the 21st (especially after stripping out the gigantic bureaucratic costs of the latter) you are unlikely to find a particularly large difference.  Moreover, the State was able to assume control of these organisations only because of the development of these may institutions over centuries by all manner of people, though not least the wealthy enemies of the big state Jon castigates.

The reason we can now afford greater levels of social care is because of our greater wealth, wealth that has grown not because of the State but through private enterprise.  And, yes, within that period the state has taken control not merely of the financing but of the control of social enterprises and welfare.

The question we must pose – and the argument we must make – is whether or not that control has improved the quality of social care; or whether social enterprises would be best run by the community they are there to serve.  This is not the same as arguing against state funding – although there is no reason why, in time, charitable and insurance contributions may ease the need for state funding in some cases.  Jon’s seeming equation of the Big Society with the resurgence of the feudal landholding interest in running the State crumbles when one looks at the reality of what is being proposed:  Free Schools  and Academies with identical funding but run independently by parents, charities and businesses rather than trade unionists and the educational establishment that have reduced our literacy rates to the lower levels of the OECD; patients (through their GPs) having more control over where they are treated; benefit claimants who have never worked being provided with training and the financial incentive to work;  and individuals, communities, businesses and charities being given the opportunity to run their own social enterprises.

We must convince people that the Big Society is about giving back control over social welfare to the communities benefiting from it; taking away the lazy reliance on the State to do everything in order to involve individuals in their own communities; and, in consequence, improving the quality of the services and welfare we provide.  That is a moral argument and one we can, should and must win.

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If Rowan Williams makes Cameron put the moral case for Conservatism, he will have done some good.

The controversy over Rowan Williams’s article in his guest edited New Statesman, for all its inaccuracies and misunderstandings, should be a wake up call to all inspired by what has appeared to be a resurgence of the communitarian conservatism inspired by the vision of Burke and the achievements of Shaftesbury and Disraeli.

Dr Williams is clearly a man of the Left.  His approach in the article suggests a man whose thinking assumes that benefits and services should not only be paid for but provided directly by the state.  His support for the ‘Big Society’ idea is of one “whose roots are firmly in a particular strand of associational socialism… adopted enthusiastically by the Conservatives.”  Even to think such a thing suggests a worrying lack of appreciation of political thought, for the principle of the ‘Big Society’ is anything but socialist, associational or otherwise.  It is an idea encompassing communities in all their forms and of all shapes and sizes: from charities, clubs, and regiments to churches, mosques and (dare I say it) trade unions.  These ‘little platoons’ have one thing in common: wherever the origin of their funding, they act not by state dictat but by the workings of human nature and, most importantly, of human charity.

Moreover, Dr Williams is plain wrong to argue that ‘nobody voted for’ the policies on education, health or welfare.  The Conservatives could not have been more explicit about their commitment to Free Schools and the expansion of Academies – indeed, this has long been the principle plank of their education policy.  Anyone familiar with the political landscape of the last Parliament cannot fail to have been impressed by Iain Duncan Smith’s commitment to welfare reform – leading to proposals strikingly similar to Coalition policy.  And, paradoxically perhaps, it was the Liberal Democrats who pioneered the idea of abolishing Primary Care Trusts  (see page 43 of the Liberal Democrat Manifesto).

Yet the reaction to Dr Williams’s comments demonstrates a lack of recognition of the failure of presentation and argument his article addressed.  While it was entirely fair for David Cameron to say that he ‘profoundly disagreed’  with the Archbishop, the Conservative Party and its supporters would do well to reflect on what he actually said.  For Dr Williams, notwithstanding the limitations of his left wing approach to the Coalition programme, made some points that were as insightful as they were important.

Dr Williams argued that “the widespread suspicion that this has been done for opportunistic or money-saving reasons allows many to dismiss what there is of a programme for “big society” initiatives; even the term has fast become painfully stale.”  This is entirely correct.  The term is stale not merely from its overuse but from the failure of Conservative Ministers and supporters to attempt a systematic explanation and argument of the purpose and moral depth of the idea of the ‘Big Society’.  That this has allowed ‘many to dismiss’ the programme is unarguable – if only because one can read them for as long as one is able to put up with the Guardian, Independent or New Statesman.  Joking aside, how many more sympathetic commentators have attacked the inadequate propagation of the idea of the ‘Big Society’; and how many of the public can give an adequate explanation of what it means?

To answer the question of why Dr Williams is able to make these points with such validity, it is worth stepping back from the immediate, media inspired row and asking two questions.  What is conservatism about and how is it reflected in the ‘Big Society’; and how do Conservatives best propagate its moral message? 

Of course, conservatism is a set of principles its adherents have long been shy of describing as an ideology; and for good reason.  The tapestry of societies and communities  – leading to the ultimate society of the nation itself – are no more than a reflection of the evolution of human civilisation.  Conservatism is organic because it tries not to challenge human nature but to work with it; it strives not to reorder society according to idealistic programmes but recognises that it is through their freedom that men and women, families, societies, institutions and charities have built a caring society.  The Big Society is nothing more or less than a reflection of this.

It is through understanding the power of this message that Conservatives will best persuade people not merely of the practical but the moral message.  In this respect, what the Party needs is a concerted effort to take on the Left’s claim to the moral high ground; to demonstrate the failures and lack of compassion of the State.  Examples from the macro – the scandal of welfare dependency – to the micro – the inability of numerous state organisations to prevent the torture and murder of Baby Peter – should be used with unremitting force.  The Party would do well to learn from the free market campaigns of Keith Joseph in the 1970s.  Margaret Thatcher did not win three General Elections merely by adopting successful policies, she did so by engaging with the arguments, by using the intellectual power of her supporters to explain, to persuade, to cajole and to convince the public of the failures of socialism.  If David Cameron is to succeed in pursuing his vision of a Big Society – as I fervently hope – he couldn’t do better than to learn from his great predecessor.

We must stop treating children like adults

(This blog first appeared on Conservative Home.)

Katharine Birbalsingh and Jamie Oliver’s Dream Schoolhave put a welcome focus on the decline in discipline in schools.  This will come as little surprise to those who teach or know teachers in inner city schools.

But few have commented on the fact that children’s expectation of ‘respect’ from teachers whilst being unwilling to give them any themselves is part of a wider trend, with consequences beyond the grave damage it has done to children’s ability to learn.  While children must be called ‘students’ and are invited to expound their grievances after moaning that “You think you’re higher than everybody else because you’re a headmaster”, rather than being given a detention for cheek, they also suffer adult consequences for childish behaviour.

Under the Race Relations (Amendment) Act 2000, local authorities have been required to keep a record of each racist incident by children.  Adrian Hart has pointed out that this has led to 250,000 racist incidents being logged in six years, mostly childish playground insults made in some cases by children as young as three.  Each of these children is tarred as a racist in these records, leading to potentially serious consequences in their school career even if the records are eventually deleted (something we can have no confidence will be done, given the government’s inability to keep data secure).

Undoubtedly an indirect consequence of this Act is that CPS prosecutions for racist or religious offences for ages 10 –17 rose from 404 in 2005/06 to 2,916 in 2007/08.  It cannot be the case that such prosecutions reflect a seven-fold increase in racist behaviour by children.  The criminal justice system is one in which children suffer particularly badly for their treatment as adults. 

In my early years at the Bar, I represented children accused of causing serious harm by using a ruler as a catapult, children accused of robbery for forcing others to give them their pocket money and seen minor school fights end up in the Youth Court.  These are matters that schools should be dealing with through a rigorous discipline policy, rather than allowing the destruction of children’s career prospects through receiving criminal records.  In this respect, it is encouraging that Michael Gove has expressed his intention to give schools the power to discipline their pupils for incidents beyond the school gate.The most odious consequence of this criminal justice policy, one which pervades the CPS and almost all police forces, is that it stigmatises working class children.  In that respect, it is of a piece with the inability – or perhaps the lack of any desire – of inner city schools to discipline their children.  Children at schools with disciplinary policies tough enough to prevent their worst excesses and which don’t spit children out into the criminal justice system are unlikely to find themselves with a criminal record for fighting.  Middle class parents are also likely to be in a better position to prevail upon the police and CPS not to prosecute their children.

Yet whilst children are treated as adults they are simultaneously infantilised.  The hysteria over paedophilia has led to parents refusing to allow their children to play in the streets or in local parks, notwithstanding the fact that there has been no significant increase in child sex offences and that the vast majority are caused by adults known to them.  Some schools even ban children from playing football in their playgrounds for fear of litigation if they fall over and the insurance for school activities and trips has become sufficiently prohibitive to prevent many schools from running them. 

What sort of understanding of society’s demands will children learn from this?  On the one hand allowed to run riot in the classroom, on the other prosecuted for behaviour once punished within school; treated as mature individuals but denied the structured education that allows them to develop into adults; and given the illusion of freedom and respect whilst being denied the freedom to play on the streets and in the parks.

Children need to be able to breathe.  They need to be given structures that allow them to develop into mature adults.  Most importantly of all, they need to be able to make mistakes – even serious ones – without their future being blighted.  Our society’s attitude to children pretends to give them greater respect but fails to teach them how to command it, retarding their development into truly mature adults.  Our failure to recognise this leaves our most deprived children yet more compromised in their ability to compete for places at the best universities, the best jobs and the best start in life.

Cameron deserves support on the EU Bill

The House of Commons today debates the European Union Bill, the most important measure in which is to prevent any further accretion of power to the EU unless approved by referendum.  The Bill, significantly, also restricts the power of Ministers to act under the Royal Prerogative in approving draft decisions proposed by the European Commission without an Act of Parliament, where those decisions may lead to a ‘significant’ increase in the powers or competences of the EU.

The Bill is not perfect.  Unsurprisingly, some of the drafting is poor (for example, current section 7 (4) (c) speaks of that “a decision under the provision of Article 64(3) of TFEU that permits the adoption of measures which constitute a step backwards in European Union law as regards the liberalisation of the movement of capital to or from third countries.”  I do not envy the first court asked to disentangle this colloquial gobbledegook.) 

In addition, there is much to be said for the argument that the Bill closes the stable door after the Treaty of Lisbon has bolted.  The Government’s position on this – that the Treaty had become law before the general election – is correct to a point.  Yet, whilst no consideration appeared to have been given to an advisory referendum on the fresh powers of the EU to provide the Government with a fresh negotiating position, the political reality is that such a referendum was impossible under this Coalition.

In these circumstances, this Bill represents real progress for those of us who believe the EU’s power has increased, is increasing and ought to be diminished.  Its provisions are comprehensive and include powers increased not only through extensions to exclusive EU competences but also to ‘shared’ competences.  It regulates transfers of power in every area of EU authority.  It is, of course, the case that a future Parliament could repeal the Act before transferring sovereignty.  The reality, though, is that it would be politically impossible for a Party to stand for election on such a platform.

The objection of the Conservative rebels is that the Bill would allow the courts, not Parliament, to determine whether a Minister was justified in affirming that a measure did not make a ‘significant’ difference to the relative power of the EU.  Their proposal is that Parliament should be the final arbiter of such questions.

Whilst superficially attractive to those supporting Parliamentary sovereignty, this objection misses the point completely.  The point of the Bill is to prevent future governments – who in most cases have an almost comprehensive control over the House of Commons through their whipped majority – from transferring sovereignty.  Were Parliament given the unfettered power to approve such Ministerial pronouncements, the Act would be futile.  Any Government wishing to approve such Treaties or measures would be able to use its majority to ensure they never need be approved by referendum.  We have seen in the Governments of Blair and Brown how grossly duplicitous governments can be over promises relating to European policy.

Further, the provision allowing the courts to scrutinise such ministerial pronouncements is not novel.  It is a mirror of similar provisions in the Human Rights Act, allowing the Courts to determine whether a ministerial pronouncement –  that a Bill is compatible with the European Convention on Human Rights – is or is not correct.  Nor does it erode Parliamentary sovereignty as it is the review of an executive statement, albeit on the provisions of a Bill before Parliament.   My only suggested amendment is that the Supreme Court be authorised to review such Ministerial pronouncements.  This would be novel, as the court is final court of appeal and has never before made fresh and unappealable decisions.  However, such a decision would be so important that it would inevitably be appealed to the Supreme Court in any event; and it is surely right that only the largest panel of the highest court in that land should be able to make such momentous decisions.

This Act truly entrenches Parliamentary sovereignty.  It prevents Parliament from eroding its own sovereignty without the undoubted consent of the People.  It is one in the eye for the European Union and marks the beginning of our struggle to retain our independence.  It deserves to be supported. 

Why are we mortgaging our children’s future for the sake of mass education?

Vince Cable began his speech proposing the increase in tuition fees by ‘hoping’, inter alia, that ‘nobody is suggesting that we should cut student numbers’.  This statement tells us everything that is wrong with the debate on tuition fees.

On one side, ministers and other apologists for the policy argue for a scheme likely to require students to start their working lives with £40,000 of debt by saying that ‘almost everyone’ will be better off and then (bizarrely) supporting the policy by arguing that between 40 and 60 per cent of debts will be written off.  It is highly questionable that ‘debts’ that are so qualified and so expressly underwritten by government should not actually be considered part of the national debt: that very debt that the Coalition is so exercised in cutting.  The generous repayment terms proposed (another reason it would be wise to hesitate before describing this as anything other than public debt) also suggest that it will be many years before there is a real increase in private funding for universities.

Ranged against them is the irate NUS which, when it isn’t engaged in secret negotiations with the government about cutting £800 million off grants in order to prevent or mitigate the rise in fees, opposes blindly every proposal to reform higher education finance while condemning even a small reduction in the proposed increase in student numbers.

At least the government recognises that a choice has to be made.  Students must take on more and more of the cost of higher education in mass market higher education because nobody ‘seriously argues’ for a reduction in student numbers.  The NUS – with the pie in the sky attitude that typifies the left – wants to have its cake and eat it.  No increases in fees (preferably decreases) and ever increasing student numbers.

Will anyone in public life have the guts to admit that the assumption underpinning this debate – that it is an inherent good to educate half our young people in universities – is not only discredited and flawed but has mortgaged the future of all who benefit from university education?  Does anyone want to ask what a university education is for?  Or are we so fixated by a dutch auction with other OECD countries that we must measure our performance not on the literacy and numeracy and other objective measures of our children’s attainment (all of which have fallen over the last 13 years) but by the proportion that receive a tertiary education, regardless of its merit?

Quite apart from the fact that students are encouraged to see a university education as a right, rather than a great attainment to aspire to and be earned by academic performance (witness the complaints when over-subscribed universities were forced to turn down applicants – shock horror!), perhaps we might also consider the worth of a university education.  Until the middle of the twentieth century even solicitors, accountants and barristers could enter their professions without a degree (I know of at least one Lord Justice of Appeal who entered the Bar this way).  University wasn’t seen as necessary even for the liberal professions; yet now it appears that almost every white collar recruiter requires a degree.  For what?

It angers me that bright poor children may be put off going to university – and almost all will be forced to incur these debts – because we have lost sight of what universities are about.  ‘Mass education’ was one of the cries at the protests yesterday.  Mass education has led us into this sorry mess.

Big Society II: Conservative Council fails to get the plot

For some months now I have been involved in a community group that is one of the best advertisements for the ‘little platoons’ of Burke to which David Cameron referred in his campaigning speeches about the Big Society.  The tragedy for us – many of whom are Conservatives (although we are a group comprised of all affiliations) – is that we have been set up to fight against the plans of the Conservative executive of Hammersmith and Fulham London Borough Council.

Opposite my house lies a community centre that houses an extraordinary range of services and facilities for the local community of Sands End, the south east corner of Fulham.  To most residents, quite apart from casual passers-by, it is the home of a library and sports centre.  That is how I came to know of it as it houses my gym.  Walk in further, as I did recently for a fascinating tour, there are 140 yards of classrooms, a dance studio, a jewellery and stained glass studio, a pottery of university size and standards, an extremely well kitted out Sure Start centre, a creche, computer rooms and office space.

The Council are ‘consulting’ local residents on the possibility of closing the Centre and dispersing its facilities.  In reality, the Consultation paper is a sham: it fails even to consider the option of keeping the Centre, let alone options for alternative management and community involvement.  They claim, accurately, that the building is under-utilised.  Inevitably, it is expensive to run, although much of the public sector finance for it comes from outside the Council from Sure Start.  Yet, in considering why that might be, the Council have failed to look to the main villain of the piece – themselves.  The building has a part-time manager who, in the time he has been in post, has failed to market the building in any way, quite apart from failing to develop a strategic plan for it.  In five years, after a refit costing £1.5 million, the Centre has had almost no marketing: certainly, my colleagues who have lived in the area for longer than me remember nothing.  So it is hardly surprising that the buidling is ‘under-utilised’ – how is a Centre including as many different facilities as this one going to be used where nobody in the locality knows that it is there?

Moreover, there has been absolutely no attempt to engage local business and the charitable sector.  Just a little imagination tells you a number of possible routes to funding and higher use: sponsorship, livery companies (particularly important in view of the craft studios), the greater involvement of local schools and charitable involvement.  Of course, none of these sources of greater use and money would be easy to achieve.  They require effort and, most importantly of all, strategic thinking. Exactly what has been lacking in this as in so many other parts of the public sector.

What is so sad is that our Centre offers the Council the opportunity to create a beacon for the sort of communitarian conservatism that their leaders profess so loudly and so clearly.  Our group itself has demonstrated how the local community can think imaginatively about the management of its resources.  Communities do that because they are close to these resources, they use them, they see the faults and advantages in their management and, most importantly of all, they are committed to them.  We only wish that the energy and commitment to the Centre the community has itself demonstrated could be welcomed and channelled by the Council.

In the local paper itself Eric Pickles MP wrote just last month to say that local government should look not to the ‘easy’ targets of front-line services but to the gigantic, wasteful bureaucracies at their core.  Perhaps, though, this is the core of the problem.  Just last week the Chief Executive of the Local Government Association appeared on Newsnight to defend not merely his salary (over twice that of the Prime Minister) but of the huge salaries of local government executives throughout the land.  This isn’t all.  The reports, enforcement officers, meetings and other job creation schemes in the local government civil service are ripe for cutting.  Yet it is a centre that has served its community for over thirty years that gets the axe.  Turkeys, of course, never did vote for Christmas.

NB – read more about the fight to save the community centre , including our response to the consultation paper, on our group’s blog.

Big Business is part of the Big Society too.

I was struck last week by Coca Cola’s announcement that they are to close Malvern Water, a small, 23 year old company extracting water from the spa favoured by Charles Darwin in his struggle to find a cure for his life-long sickness (many of his visits were recalled in last year’s brilliant film Creation).  What struck me most about this announcement was that there was no mention in any of the many media reports about the profitability of Malvern.  I have since searched high and low for Coca Cola’s profits broken down by brands, without success (Coca Cola, on being asked to comment, sent me their press release which makes no mention of brand profitability).

What is interesting about this announcement is the supposed rationale of the sale.  Coca Cola made much in its press release about the difficulty it had extracting more than relatively small quantities of water and the effect that had on Malvern’s competitiveness.  But it made no mention of its profitability.  Now, maybe I will soon learn that the plant was unprofitable and/or that it was predicted to go into loss.  Yet, one might expect that such business records and predictions would be at the forefront of Coca Cola’s justification for the closure – especially as it had such heavy criticism from Unite and the local community.  That they did not is telling; and suggests that the reason for the sale lies elsewhere.

For one did not need to look far in the press reports to see that, rather than attempting to sell the business as a going concern, Coca Cola intend to develop the plant and sell it as ‘luxury housing’.  For all their glossy literature on corporate responsibility, Coca Cola have been found wanting.  If my suspicion on Malvern’s profitability is right 17 sustainable jobs have been exchanged for housing for (perhaps) a similar number of people.  Their reaction to this (in their press release reproduced below) is that residents of Malvern wouldn’t want the plant to continue in industrial use with all the smoke and congestion that would cause.  What are they expecting – a steel processing plant?  It is this sort of attitude that condemns towns like Malvern to become picturesque tourist towns filled with wealthy commuters.

Of course it is difficult to criticise individual corporate decisions from outside the business in question.  One doesn’t have access to balance sheets, business predictions, attempts that might have been made to sell the subsidiary and so on.  But lack of access to these records should not excuse big business – as much as big government – from scrutiny over its decisions and their justification.  In this case, it is reasonable to ask what steps Coca Cola has made to sell the business as a going concern – one with a Royal Warrant, no less; and whether it has turned its mind to alternative industrial uses for the plant.

David Cameron’s speech yesterday revived the organic conservatism many have long identified in his championship of the Big Society:  “Successful, high-growth economies are like ecosystems –they are organic, evolve through trial and error and depend on millions, billions, of individual preferences, choices and relationships. Governments can expect to intelligently design all this as much they can expect to intelligently design the Great Barrier Reef.” (Darwin would approve.)  He is right, of course.  But the organic society removes control from government only because it believes in the corporate responsibility of which Coca Cola boasts.  Decisions like this condemn our market towns to become museums of the thriving, small business led communities of their past.

NB:

Coca Cola, on being asked to comment, sent me a copy of their press release and pointed to Malvern’s market share in the ‘notes to editors’.  Notwithstanding a specific request for the recent profit levels of Malvern, they did not provide that information.  I reproduce the press release in full as a ‘comment’ below.

Does the Human Rights Act really protect our Freedoms?

This blog was first published on Big Brother Watch on 28.9.2010.   A longer version is included as a chapter of The State of Civil Liberties in Britain, Biteback Publishing, 2010.

The recent, sad and untimely death of Lord Bingham, one of this country’s finest jurists, calls for a reflection on the importance of the rule of law, about which he wrote so recently. Most importantly, what lessons can we learn from three decades in which Lord Bingham sat as a judge?

It is right to speak with pride of the legacy of Britain’s common law system. Its principles are the foundation of legal system throughout the world protecting the individual against the State. The common law experience shows the merit of laws derived not from the codification of abstract principles but through the resolution of real conflicts and disputes. Yet anyone who watched the BBC’s brilliant Garrow’s Law will have had an insight into how little protection was trial by jury in a world without a fair police force, thorough investigation and  strict rules of evidence and disclosure.  As we all know, the experiences of the Birmingham Six and Guildford Four demonstrated how inadequate protection against such abuses lived on into the late 20th century.

The recent general election again brought into the fore debate about the effects of the Human Rights Act 1998 (‘the HRA’) and the European Convention on Human Rights (‘the ECHR’) it incorporated. As a criminal barrister, though, I would rather start with one of the finest pieces of legislation of the 20th century, the Police and Criminal Evidence Act 1984 (‘PACE’). It is through this Act that suspects’ interviews must be tape recorded, identification parades held and evidence obtained through oppression excluded. These parts of the criminal justice process may not appear particularly important to a layman but they are critical. Fine principles are toothless without carefully drafted rules (whether from statute or case law) to ensure a process that appears fair isn’t corrupted at critical stages, leading to injustice at best but at worst the imprisonment of the innocent for years, even decades.

This experience of the importance of the practical over the principle leads us to consider how far the HRA has really protected the fairness of the criminal process. Certainly the HRA has had a significant effect on public, criminal and family law.  Not least of these was the landmark case of A & Others v the Home Secretary (2004) where Lord Bingham found that the provisions of the Anti Terrorism, Crime and Security Act 2001 allowing the detention without trial of foreign terrorist suspects were incompatible with Article 5 of the ECHR. Elsewhere, the HRA has allowed lawyers to rely on articles of the ECHR in areas as widespread as planning applications (Article 8: Coster v UK [2001] 33 EHRR 20), housing law (Article 8 – right to private and family life; and Article 14 – prohibition against discrimination) and immigration law (most frequently Articles 2 – the right to life; 3 – protection against torture; and 8).

Yet we in common law countries know that our freedoms rest on older and surer foundations than the ECHR.  The adversarial process, far from impeding the search for the truth, ensures that an individual presents his case to an impartial judge or jury, not an investigating magistrate whose role is impossible to disentangle from the state that prosecutes him.  The jury system transfers from the state to a defendant’s peers the decision about his guilt.  And the many procedural protections built up by Parliament and the courts ensure, where the criminal process outside the courtroom has prevented the possibility of a fair trial, that the proceedings are stayed.

Indeed, the experience of the twelve years since the HRA passed into law is a troubling one, for it has seen the passing of perhaps the most illiberal body of legislation for two centuries. The DNA database expanded to all arrested, regardless of their guilt or the triviality of their alleged crime; hearsay evidence permitted as a matter of routine; bad character evidence routinely admitted; arrests permitted for any crime, even those that do not carry prison sentences; defendants facing accusations impossible to rebut through witness anonymity (see my writing elsewhere); and a marked increase in minimum sentences, hugely reducing judicial independence.  Away from the strictly criminal sphere, the tabloid paranoia over paedophilia has led to a multi-headed hydra of over-reaction through the Independent Safeguarding Authority (ISA) (a report by Civitas published yesterday argues that any family looking after other people’s children faces vetting by the ISA); the Regulation of Investigatory Powers Act 2000 has allowed local councils to authorise 8,500 acts of covert surveillance in only two years (as an investigation by Big Brother Watch uncovered in May); and, but for doughty campaigners such as Shami Chakrabarti and David Davis, we might have had 90 days detention permitted in the mother country of the common law.

This litany of authoritarianism reveals a worrying gap in the protection we have traditionally expected from Parliament as the guardian of our precious legacy of freedom.  But it also raises an intriguing question.  Why is it that such a sustained attack on freedom has been so exactly contemporaneous with the earliest years of the HRA?

In answering this question, we must remember that the ECHR was designed not for nations with a long tradition of judicial independence but for a continent ravished by war, most of whose nations were emerging from decades of dictatorship – a role repeated after 1989 as former Warsaw Pact and USSR Republics joined the Council of Europe.  Thus, the ECHR is no more than a minimum standard for countries with diverse judicial systems and a hugely divergent history of fairness in criminal and civil proceedings.
Is it actually the case that the HRA has allowed the last government to plead its respect for human rights knowing that the ECHR was ill equipped to protect common law standards unique to Europe in the British Isles?  If that is so, should we think again about the fundamental standards to which all governments should be tied?

It is for this reason that Dominic Grieve has long campaigned for a British Bill of Rights.  Not as an ill-considered response to attacks on human rights law but as a shield defending the common law freedoms essential to a fair criminal process and freedom from state regulation, control and surveillance.  Rather than reducing the protection of the HRA, such a Bill would enlarge it after a similar period of consultation as occurred before the Canadian and Australian Bill of Rights were enacted.  Such a process would indeed protect our freedoms; but it would also persuade the British people to value the freedoms developed thanks to the struggles of their ancestors, the wisdom of our institutions and of the men and women who have influenced them.

As I was saying on Defence

Thankfully, Defence has not been out of the front pages this week. 

Today comes the report of the Defence Select Committee, whose Chairman, James Abuthnot MP, said that the Committee was ‘worried the process was money-driven and not taking time to assess the threats to the UK’ which was ‘potentially detrimental to the defence of the country’.  Concerningly, the Committee talked of an over-hasty, Treasury driven Defence and Security Review with a ‘lack of consultation with the public’ and defence contractors that was likely to lead to ‘serious mistakes’ being made.

On Monday (13.9.2010) news that the Obama Administration has recognised the dangerous signs from the Coalition that they are about to embark on catastrophic cuts in Defence spending on top of the damage done over 13 years of Blair and Brown (as I argued last week).  The Daily Telegraph reports that:

‘It is understood that a senior American official recently called the MoD to discuss “concerns” about the prospect of an even greater spending gap.

‘Michele Flournoy, the under-secretary for policy at the Pentagon, telephoned Tom McKane, the MoD’s strategy director, to raise the issue. “The Americans are sympathetic, but it’s fair to say they have some fairly serious concerns about where we will end up,” said a Whitehall source.

‘Robert Gates, the US defence secretary, has also discussed the coming cuts with Dr Fox. It is understood that he has told the Defence Secretary that the US believes it is vital that Britain retains its nuclear deterrent and its extensive intelligence-gathering operations.’

The irony is that this comes from an Administration that has itself been attacked for following the ‘British example’ through proposing cuts in Defence spending.  Dr Theodore Bromund’s description of the British experience is succinct and cutting:

‘The experience of these wars did not persuade the government that its policy was fundamentally misconceived; instead, it continued to emphasize efficiencies and to dribble out increases to fight the public relations fire of the day. It never treated defense as a serious issue requiring sustained, careful investment at a level that would not damage the nation’s economy, but also at one sufficient to sustain and train the forces of today while procuring for the force of tomorrow.

‘The results of this experiment did not justify the government’s policy. It turned out that it was extremely difficult to secure efficiencies in defense procurement, so while the cuts in defense spending were real, they were not compensated for by efficiency gains. Instead, the cuts forced delays in programs, increasing their overall cost while simultaneously piling up a procurement gap as the military of today consumed the funds that should have built the military of tomorrow.

‘As a result, by October 2009, the Ministry of Defense [sic] estimated its total procurement shortfall through 2038–39 at between £35 billion and £100 billion. This did not stop the government from taking credit for increasing defense spending after 2004, even though these increases did not close the growing gap between planned and required spending.’

It might have been hoped that the Defence Secretary would be using these reports, the papers that have been published, the abundent evidence of the damage done to the national interest by cuts on top of a funding gap of at least £21 billion (over 10 years) and the concerns of our principle ally to fight the Treasury tooth and nail.  Sadly, the evidence of the Defence Select Committee suggests otherwise.  The question is, when will the Conservative Party realise the danger to our country’s long term interests and revive, one hundred years later, the 21st century equivalent of its old cry “We want eight and we won’t wait”?

NB:

I was on The World Tonight on 5th October, speaking about the Defence cuts during the Conservative Party Conference (in the introduction to the programme and at around 22 minutes in).

The Defence of the Realm is not Expendable.

The serialisation of Gen Sir Richard Dannet’s memoirs last weekend shed yet more light upon the Blair Government’s double standards wherever the armed forces were concerned.  Whilst his descriptions of the dying days of the Brown administration are eye opening – in particular his revelation that the only way he was able to speak to the prime minister (as Chief of the General Staff) was to corner him on Horse Guards – Gen Dannet’s account of Brown’s refusal to pay for the defence programme called for by the last government’s own Strategic Defence Review (in 1998) is well known and well documented.  Gen Lord Guthrie recently confirmed that Gordon Brown’s evidence to the Chilcot enquiry was misleading at best, dishonest at worst.  In particular, Mr Brown made two assertions that were quite simply untrue.  Firstly, that Defence spending increased in real terms every year of the Blair/Brown governments: in fact “spending was cut in real terms by 1.5 per cent, or £400 million, in 1999-2000; by 2.1 per cent, or £700 million, in 2004-05; and by 0.2 per cent, or £100 million, in 2006-07” (The Times, link above).   Secondly, Gen Guthrie directly contradicted Mr Brown’s assertion that he provided the armed forces with each of the budgetary requirements for which it asked; he was in a position to know, having made the requests to the Chancellor directly as Chief of the Defence Staff. 

What lessons are there for the Coalition; and, particularly, for a Chancellor apparently determined to give inadequate budget protection to armed forces that have suffered huge cuts in their equipment and manpower for two decades?

Firstly, we need to consider the damage done to the armed forces and that it may suffer in the future due to stagnant spending at best.  The above expenditure statistics measure ‘real’ inflation according to the CPI, the government’s preferred inflation indicator (largely because it is consistently lower – and less comprehensive and therefore accurate – than the RPI).  Thus, they ignore the reality of Defence Procurement Inflation.  Professor William Kirkpatrick recently argued in a United Services Institute paper that procurement costs measured in unit price terms for equipment have inflated at a rate of around 7.5 % throughout the modern era.  Prof Kirkpatrick accepts that this measure ignores the increase in the performance of equipment – Spitfires to Typhoons, Dreadnoughts to stealth Destroyers, etc – but justifies this by arguing that the correct relative measure of performance is not historical but multi-lateral; that is to say that our performance will only have increased if the relative advantage of F111s against MiGs was greater than that of Spitfires against Messerschmitts.   It has been argued by Professor Malcolm Chalmers that his figures are misleading, on the grounds that the expenditure of potential rivals has equally failed to keep pace with unit price inflation.  Whilst this argument has some superficial attraction, it has severe limitations, as Prof Chalmers acknowledges.  For example, regardless of their potential increased power over rival aircraft, a similar number will be required to protect UK airspace.  Likewise, even if future aircraft carriers are larger than the Invincible Class (and aircraft carriers have shrunk as well as grown in size over the past century), the UK will suffer decreased capability unless it is able to sustain the same number of aircraft carrier groups. 

Examples used in both USI papers are largely historical or hypothetical, yet the Army’s current major engagement is an important illustration of the flaws in Prof Chalmers’s analysis.  In Afghanistan, allied troops fight against unsophisticated and relatively poorly armed non-state adversaries.  Yet the use by the Taliban of Improvised Explosive Devises (IEDs) has led to appalling casualty rates on a scale not seen since the Falkland’s Conflict, where the United Kingdom faced the most militarily sophisticated enemy of the past 30 years save Serbia.  There are two means by which this casualty rate could be decreased.  The first and most effective is by an increase in the number of helicopters enabling evacuations that avoid the IED risk.  Whilst the Taliban has some anti-aircraft capacity, the extremely short time span of helicopter evacuations, combined with the limits to this (Taliban) capacity, explains the greatly reduced risk.  The second means of reducing the threat is by supplying the troops with more effective armoured vehicles to replace the tired Land Rovers developed to police Northern Ireland during the Troubles.  Yet the United Kingdom has failed to increase the supply of this essential equipment due to the limitations on its budget and the unwillingness of the Treasury to increase MoD spending to take account of this greater need – unexpected and unaccounted for in previous reviews. Thus, even enemies that have been described as “13th century” can lead to the need for far greater levels of equipment.

The second consequence of recent engagements in Iraq and Afghanistan is one that cannot be measured purely in terms of money.   It is that army units are deployed at ever greater frequency and with ever shorter periods back with their families at home or in Germany.  It is impossible to measure the effect this has had and continues to have on morale amongst all ranks but we surely have a moral obligation, as a nation thankfully increasingly aware and appreciative of the sacrifices made by our soldiers on our behalf, to mitigate these emotional costs of warfare both by adequate expenditure on the equipment they need and by increasing or at least maintaining the size of the army to allow decent breaks between deployment.  In financial terms, though, this is an additional marker of defence inflation of which neither professor took account.

Finally, we must consider our obligations as the only Power in NATO without a semi-detached foreign policy (no prizes for guessing which country) to be able to make a significant contribution to US led military operations.  This is to do no disrespect to Canadian, Polish and Danish troops, who alone amongst NATO allies have joined US/UK troops in serious combat operations in Helmand Province and who have suffered comparable casualty rates to us.  Nevertheless, their respective expenditure on defence is only 1.66, 1.41 and 1.3 per cent of GDP, as opposed to 2.5 and 4.3 per cent by the UK and US respectively.  Those who argue that Britain is no longer a great power and cannot afford to project her interests do not merely ignore the reliance put upon its armed services by the UN in enforcing its Security Council Resolutions in Iraq in 1991 and Afghanistan from 2001 and in preventing genocide in Bosnia in 1999, they belittle British interests that rely upon effective, well equipped and sufficiently large armed forces.  Britain still relies upon Middle Eastern oil, it still relies upon trade routes through the Red Sea, it still has obligations to its citizens in Dependant Territories.  Moreover, Britain cannot expect to retain its privileged status as a Permanent Member of the Security Council without being able to contribute to necessary military action it has the responsibility to enforce.

Of course it is trite to complain that particular policies are not to be implemented in a coalition government.  The synthesis of values and policies coalition government entails will lead to inevitable disappointment on both sides.  Those who make such complaints forget that, for good or ill, David Cameron failed to secure an overall majority and has been forced to accept compromises in some areas.

Yet Britain’s defences and its ability to project its power to protect its interests should never be one of these.  It was deeply alarming that the Conservative Party failed, in opposition, at least to guarantee that Defence expenditure should be immune from cuts.  When combined with its pledge to maintain spending on the NHS –  its own Party research having shown that expenditure on central administration alone had doubled in five years – this policy was difficult to understand.  For the Treasury now to treat Defence almost as any other department (its concession requiring cuts of ‘only’ 10 per cent being derisory) is a direct assault on national interests.  Sadly, the Conservative Party’s history shows that it has all too often failed to appreciate how rapidly Britain’s military needs can change.  John Nott’s Defence Review of 1981 would have led to the scrapping of 20 per cent of the surface fleet and one aircraft carrier but for the Falkland’s War; and it took until 1934 for Baldwin’s National Government to begin rearmament (Correlli Barnett, The Collapse of British Power (London: Methuen, 1972), p. 412).  Will this Government be any different?

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