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Diary Note /0037
Thursday 28 March 2002
for previous DiaryNote

Black Monday

This is how Jonathan Freedland, writing in The Guardian, described Monday 25 March, when news broke of the Railtrack settlement, the Consignia re-structuring, and the privatisation of HM Dockyard re-fits. Black Monday for Labour. So - having enunciated the principle of Public Primacy, as a pillar of the New Socialist Settlement, I clearly owe you a commentary upon this momentous day.

Far from being "Black", I suggest that Monday 25 March 2002 could prove very constructive. It could teach us that, in deploying the principle of public primacy, careful prior analysis is needed. Traditional pigeon-holes will no longer do. The current union-inspired polarisation between "public" and "private", which is gripping rebellious Backbenchers, is entirely misconceived.

Is the function in question really a public function at all, in that its satisfactory performance requires direct management by a public agency, directly employing public servants? That should always be the first question. For by that test, the management of the Devonport Dockyard is clearly not a public function. Nor Portsmouth, nor the Clyde. It is a conventional industrial function, repairing and re-fitting ships. What is "public" about that? I cannot imagine that the work is high-security, or that the Dockyard staff need be subject to the Official Secrets Act (although the installation, perhaps, of top-secret equipment might have to be specially managed). If that is so, then it would be sensible to privatise the function. After all, the State has quite enough on its plate, without retaining functions which can be performed satisfactorily by private contractors, working within satisfactory contract formats (i.e. in engineering, supply procurement, construction). The management of local authority leisure facilities is another case in point: they should also be externalised, allowing the State to focus on its primary mandatory local functions.

This simple doctrine is, I recognise, contentious. At the Wales Labour Party Conference last week in Llandudno, I became acutely aware that the trade unions (TUC, Unison and GMB) were mounting a campaign to defend all jobs in the public sector as currently defined. That is, of course, a perfectly legitimate trade union objective, and I wish them well. But that should not be allowed to determine Labour's policy, as a Party or a Government. If we are to hammer out a coherent doctrine of public primacy, we must differentiate between those functions which are truly "public" and those which are not. Re-fitting ships, even warships, manifestly is not. By way of further challenge, I would question whether "the State" should really be running public libraries: I would prefer to see a much more diverse system of provision by voluntary and community groups, including charities, grant-assisted by the State.

The Railtrack drama demonstrates (if further demonstration were needed) that the railway network is a "natural monopoly" (Will Hutton's emphasis) for the management of which the State must retain direct responsibility. I take no comfort in having predicted and counselled the Byers U-Turn, and I welcome the return of rail to the managed sector - see Railtrack . Rail privatisation was an act of grand larceny by the City, of political fraud upon the people, perpetrated by the Tories - and the Tories should be made to pay the political penalty for a very long time. Privatisation was a booby-trap waiting to be sprung by Labour, and it happened to be Stephen Byers who was holding the explosive parcel when the music stopped.

But the real problem with rail is not its ownership or management at all. The real problem is the obsolescence of its technology. The time of rail has, quite simply, passed. If truth be told, rail was superseded by motor transport, in the early 20th century. Road transport has been the most glittering commercial and popular success. Rail has lost out in the USA, where its advantages should have been decisive. Rail is maintained only by sclerotic European States whose Governments cannot face the political upheaval of cutting rail subsidies (France, Germany). Rail technology is old and decrepit, the track is near-expiry, and as a society we simply cannot afford its replacement.

While the major metropolitan commuting systems will somehow have to be maintained, at the most enormous expense, I reckon that half of the remainder of the system should be closed down altogether. Rail-fares on the remaining networkwill have to be raised substantially, and public investment dramatically increased in road transportation , both highways and vehicles.

This is the real U-turn, the second shoe, yet to hit the floor. And responsibility for making that cataclysmic judgment, ducked by the Tories, will have to be borne by Labour. We must not shirk it.

What, then, of Consignia? What is the true balance of public and private functions within Consignia? We must have the courage to make a hard-nosed political analysis of what is truly public and what is not. Parcel carriage cannot possibly be a necessary public function: it is widely performed by private contractors, worldwide, and it constitutes a normal market-place - why should the State waste its resources running such a service at all? Nor can the operation of small retail outlets, through Post Office Counters Limited possibly be a proper public function - the service can be (indeed is) provided by a wide range of other retail agencies, grant-aided by the State.

But the Royal Mail is different. Even extreme anti-State Liberals concede its centrality as a public service - see Post Office Principles . The operation of a universal, UK-wide, fixed-price, next-morning postal delivery service for letters and small-packages is fundamental to the smooth operation of modern society. It is the ultimate natural public monopoly, and nothing should be allowed to dim that perception. Of that, I am in no doubt whatsoever.

The principle of Public Primacy is an uncomfortable bedfellow - see Public Primacy . But it can, I suggest, help to chart a new socialist way ahead.

Let me know what you think

Avoid prolixity!

I stand accused (by one of you) of verbal diarrhoea, excessive prolixity. The accusation hurts, because I think of myself as capable of compressed expression. But the customer is always right - so let me experiment with some short, sharp, quickfire comments, to see how they work.

Paying Grandma The influential Helen Wilkinson is advocating a new state benefit to be used to pay relatives to act as childminders. That is an awful idea: arbitrary, demeaning, intrusive, and destructive of family values. The right course would be to pay to a Guardianship Allowance to the parent who chose to stay at home, and look after any primary-school child. The guardianship allowance should be paid at a level which would make a significant difference to the lower-income household economy, say £5,000 pa. That would obviate the need for childminding in a significant proportion of cases, for such households. As for higher-salary middle-class parents (who wanted to go to work anyway, for professional or career reasons) they would be on their own.

Withdrawing Limited Liability Radical company law reform is needed, and UK socialists should lead the way to a new international concordat. One example: it is outrageous that Granada and Carlton should be allowed, by company law, to walk away from the collapse of their creature ITV Digital, and leave everyone else to bear the losses of their failure. "Limited Liability" was invented by the Victorians for the purpose of protecting natural persons (i.e. you and me) against personal ruination following business failure. Modern international company practice, which generates layer upon layer of artificial, or legal, persons allows a company to use the very same Victorian defence. That is not reasonable. The practice has "just grow'd", without socialists appreciating its enormity. Companies which are shareholders in other companies should have the legal defence of limited liability withdrawn.

Scottish Sanity I applaud the Scottish Executive's plan to outlaw the defence of "reasonable chastisement", which permits parents to smack their children. This is a fundamental issue of human rights, of the rights of every child. The law protects every other person from physical attack by way of the civil and criminal law of assault. It is only the child from whom that legal protection is removed. There is no legitimate countervailing value, to justify parental violence. The time has come to uphold civilised values, and to outlaw the use of any force whatever against children.

Set our Children Free Compulsion always causes problems. This is the weekend of the teachers' conferences, and unruly pupil behaviour is high on the agenda. Yet the violence in our schools is a by-product of our use of force against the child in the first instance, by the very institution of compulsory schooling. Pupils (certainly after the age of 12, following Primary School) should be free not to attend school at all. Many of the worst troublemakers are young men who do not want to be in school at all - why should they be forced to attend? For their own good? Is that sufficient to justify coercion? In particular, is it sufficient justification for punishing parents, with fines of up to £1,000?. Schools would be far more peaceful places, if those attending were all doing so as a matter of choice, and if teachers had to present an attractive curriculum in order to ensure the success of the school. Labour seems to take compulsion for granted, but coercion was introduced in the context of a right-wing Victorian England, reflecting wider 19th Century Continental practice. We should challenge that assumption, and set our children free to make their own choice, in cooperation with their parents.

Just a few thoughts stated baldly, and not fully argued. Do you like the idea? Let me know what you think 		 
NB > Sorry! I missed out my Midweek Edition this week - not intentionally, but because I was absorbed with the Angel Declaration, the drugs reform movement - the Declaration now has 380 signatories, signed in on-line - go and see who has signed in - you'll be surprised Angel Declaration

PS Next Edition to be a Holiday Feature - the lighter-hearted side of politics - due next Tuesday 2 April 2002

Busy with
Human Rights

Evidence came thick and fast, this week, of the impact of human rights reasoning on English law. Admittedly two of the cases resulted in the rejection of the human rights argument, albeit for well-argued reasons. In the first case, David Shayler isdue to face a full Old Baileytrial on 7 October for breach of the Official Secrets Act, in releasing MI5 documentation to the Press. LIBERTY argued that, for a public servant like David Shayler, the Official Secrets Act imposed too draconic a restriction upon his freedom to "go public" with his whistle-blowing allegations against MI5. The Act's restrictions, LIBERTY said, infringed his freedom of speech, now assured by the Human Rights Act 1998, incorporating the European Convention of Human Rights.

The five Law Lords disagreed. Freedom of speech was (like many other Convention rights) qualified by other considerations, and was not absolute. There was much domestic legal authority, said Lord Bingham "pointing for the need for a security or intelligence service to be secure". It followed that the State was perfectly entitled, by way of the Official Secrets Act, to require complete confidentiality, and that David Shayler's contract of employment properly contained a requirement to comply with the Act. Their Lordships observed that Shayler could have used the internal complaints procedures, but did not; he could also have requested permission to publish, but did not. The Court accepted that MI5 terms-of-service did restrict Shayler's freedom of speech, but concluded that in this particular the restriction was justified in the interests of national security.

Grounded football hooligans suffered the same fate. Carl Gough and Barry Smith were Derby County supporters challenging orders stopping them from attending Derby's matches, at home or abroad. Now older men, they had "spent" convictions for football violence some fifteen years ago, although nothing recent; nevertheless, the Police produced extensive evidence of their violent crowd behaviour both at home and abroad, and intelligence reports placed them with a gang called the Derby County Lunatic Fringe - none of the evidence, however, would have convicted them again.

And that was the point. Jack Straw's Football (Disorder)Actprovided for banning orders to be dealt with by the civil courts, just like an order preventing one spouse from molesting the other, in divorce proceedings. Their defence lawyers claimed that the banning order was more like a criminal penalty, and that a full "criminal" standard of proof should therefore be required. Without such evidence, they argued, the State was not entitled to restrict a citizen's freedom of movement and assembly, assured by the Human Rights Act.

The Court of Appeal considered that the civil ban was simply a sensible precaution by the authorities to avoid disruptive rioting, and could not be considered a criminal penalty at all. On that footing, the State was entitled to act "on the balance of probabilities" (the civil standard of proof) and the bans against Carl Gough and Barry Smith should therefore stay in place. The Police expressed delight that they could now use these powers to stop hooligans travelling to Japan forthe World Cup.

Let me add a word of caution. I have not yet seen a full report of that case, but my nose tells me that the Court of Appeal was wrong, and could yet be overturned by the House of Lords - watch this space.

Other cases were more positive. The Guardian got the go-ahead for their challenge to the Treason Felony Act 1848, which makes it a criminal offence to challenge or question "the Monarchy" as an institution. The Act was passed in the great year of multiple European Revolutions, when traditional Establishments trembled, when revolutionary cliques flourished throughout Europe, and the Chartists were taking to the streets of England and Wales. It was a piece of hurried anti-terrorist legislation, which has stayed on the statute-book ever since.

Alan Rusbridger, Editor of the Guardian, wants to launch a reasoned public campaign for a Republican State, but he and his staff could be imprisoned for life if the Act were enforced. The High Court struck out their action, but the Court of Appeal (three judges) this week overruled the single Judge, and ordered that the case should go ahead to full trial - see Judges back Treason Act challenge

The Prison Service was also reprimanded this week, by Mr Justice Elias in the High Court. Prisons place very tight restrictions, for security reasons, on prisoners' use of phones, to call out from prison. This practice was challenged by the Association of Prisoners, on the grounds that the restrictions went too far, and prevented prisoners talking to journalists on "matters of legitimate public interest". Mr Justice Elias agreed: the Home Office was unduly infringing human rights, assured under the Human Rights Act 1998.

The Human Rights Act is forcing everyone to take a second look at our conventions, making us re-think assumptions which have stood unchallenged for years. And that must be a good thing. My favourite quote-of-the-week comes via the Financial Times -
The aim of debate should not be victory, but progress
Joseph Joubert
Which is all very well, but who was Joubert? The search is on.

Exploring "Equality"

My “New Socialist Settlement” is triggering a response from socialists. Michael McCarthy takes me to task on two points, both relating to Equality, the key foundation value.
First, MM doubts the value of claiming scientific support for the political principle of equality – “By leaving the statement formally unqualified you lay yourself open to the commonsense objection that in many ways individual humans are born notably unequal. People vary greatly in capacities like their physical strength, talent for music, endurance, or susceptibility to particular diseases.”

Secondly, MM suggests I am wrong to place liberty alongside equality and fraternity, as the “three core values” of modern socialism. “If equality and liberty are both given equal weight, then in situations where they conflict there can be no clear means of adjudicating between them.”
Take a look at MM’s full letter Michael McCarthy . In reply to his first point, I say that, in spite of millions of individual variations, scientific evidence demonstrates that we are all members of a single global species, with individual variations falling within a common range, in terms of brain and body size, blood-types, and genetic composition. This is the underlying greater truth, in spite of the myriad individual variations. There are no superior or inferior “sub-species”. These findings, which were not accessible to the 17th English Levellers and Quakers, underpin their egalitarian, socialist perceptions.

Misunderstanding has struck his second point. If you check out my New Socialist Settlement you will see that equality ranks alongside fraternity, as the two primary “foundation values”. And I argue for the derivation of liberty – “Individual Freedom” – from those two foundation values. So I agree: equality is indeed the prime value, and there are occasions when the pursuit of liberty must take second place. As a human rights lawyer, I recognise that one principle must often be balanced against another: that is the stuff of civil rights enforcement. And I agree with the primacy of equality.

My thanks to MM for his letter, and for his continuing interest in warrenevans.net.

Let me know what you think

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Reminder - next Edition to be a Holiday Feature - the lighter-hearted side of politics - due next Tuesday 2 April 2002

You are in the company ofRoger Warren Evans