Monday 30 January 2017

Should Donald Trump come to the UK?

Donald Trump is a dangerous man. He appears to be an impulsive, egotistical, blinkered narcissist. And he's in charge of the most powerful country in the world.  I'll be very pleasantly surprised if we can get to 2020 without having to dig a bunker in the back garden.

Should he come to the UK on a state visit? Many of my friends feel very strongly that he shouldn't. Some of them are planning to go on a protest march. Lots of people have signed a petition (over a million of them), urging the Government to ban him.

It turns out that the petitioners tend to live in constituencies represented by the usual suspects, ie Jeremy Corbyn, Diane Abbott, Keir Starmer and so on. But that doesn't mean they are wrong. Neither does the fact that the same people did not blink when President Obama signed orders preventing people from some Middle Eastern countries going to the US, or when Theresa May went on a state visit to meet President Erdogan in Turkey.

There are three possible answers to the Trump question. One, politicians we find unappealing should never be allowed in. Two, they should sometimes be allowed, depending on the circumstances. Three, they should always be allowed.

I think most of us would dismiss number three. Would we want to entertain Pinochet or Hitler? No. Stalin? No. What about Stalin when he was keeping Hitler usefully occupied on the Eastern Front? Well maybe. Churchill certainly thought it was worth meeting Stalin at Yalta. Without the Russians Hitler might not have been overcome.

This consideration rather deals with point number one, and brings us to number two. You may find Trump unappealing, but he is also the leader of the most powerful country in the world, one with whom for a wide variety of reasons it pays to have good relations. I think May should offer him a state visit. I concede that there are other leaders who are absolutely vile and whom I wouldn't cultivate. Erdogan, for example (although hang on, Turkey is a member of NATO - does that make a differenc?)  As far as I know, unlike Erdogan, President Trump has not imprisoned judges, beaten and tortured political opponents and closed down publications which have criticised him.

What if Trump had done all the things Erdogan had done? That's much harder. There is clearly a point at which a regime becomes so awful that no matter the disadvantage you your own country you really want to stay well clear. That point will be different for everyone of course.

I wouldn't criticise my friends for reaching it sooner than me, but I do think they are guilty of double standards. For why did they sit on their hands when Mrs May went to Turkey? Or when David Cameron invited the Chinese premier over and had a pint with him in a Cotswolds pub? Where were their million signatures then? Where was their march? Where were their complaints when a raft of Middle Eastern countries banned Israeli citizens? What did they do when Obama banned Iraqi refugees in 2011?

The truth is that President Trump is their very particular enemy. It would be foolish to say the most powerful man in the world was being picked on, but he's certainly being picked out for a level of opprobrium his opponents don't seem to be able to muster for people significantly worse.

Friday 27 January 2017

Fake news, Denzel Washington and the BBC

The other day I heard a series of news bulletins on Radio 4 and Radio 5 to the effect that the UK inflation rate had risen to 1.6%.  The implication, we were told, was that this was a worrying development for the Tory government and for the Bank of England.

This was fake news.

Why? Well, what the broadcasts consistently omitted to point out was that the inflation rate, although rising, is still well below the level the Government requires the Bank of England to achieve. That figure is 2% (some economists think it should be 2.5% or more).  To put it another way, inflation is only about three quarters of the level the Treasury regards as ideal. We could do with more inflation, not less.

To this extent, rising inflation is A Good Thing. The Governor of the Bank of England will have been writing to the Chancellor of the Exchequer every month for years to explain why inflation is below target, and what action BoE is taking to rectify the situation. Mr Carney should be pleased it's going up.

The point here is not that the news bulletins got the inflation rate wrong. It was that by leaving out part of the context crucial to understanding the true situation the listeners were presented with a version of events which was false.

This is not a BBC-knocking point. Every other news outlet in the history of journalism has been guilty of similar misdemeanours. The point is a wider one. The factitious division of news into two categories - real and fake - implies that somewhere, perhaps in the respectable print media and state-funded outlets, there exists a stream of news which is "real".

There isn't. And not just because journalists fail to include information which puts facts like the inflation rate into context.

Journalists get facts wrong. They do it all the time. Whenever I read anything in the papers on a topic in which I have a degree of expertise (I'm trying to think of some, but let's start with mountaineering and music) I am staggered by their mistakes. Moreover journalists exaggerate. No journalist ever made their reputation by acting on the thought, "D'you know what? This isn't really much of a story". That way lies professional oblivion. Moreover the stories that are not reported, the programmes that are not commissioned, the questions the powerful are not asked and those who are not interviewed at all contribute to a worldview which must be widely skewed. Even the stuff that gets past the Editor can be presented in a way that minimalises or emphasises its impact.

To some degree this is inevitable. But journalists, a necessary evil like estate agents, have made it much worse than it had to be.

It's for that reason that, hearing complaints in the po-faced and self-righteous media about the recent onset of fake news and post-truth, I want to stand up and shout, "Hold on you fucking wankers! Who d'you think you are, pontificating about post-truth? You're journalists! Get a mirror! Look in it from time to time!"

In the current edition of Private Eye there is an advert for the "Paul Foot Award". The Eye gives this award for the best piece of campaigning journalism in the previous year.  Readers may remember that Paul Foot was an Eye journalist who campaigned doughtily to clear the name of James Hanratty, one of the last people executed in Britain.  Hanratty was convicted in 1962 for the so-called A6 murders.

Unfortunately for Foot, DNA evidence from a victim's clothing demonstrated in 2002 that, despite having denied his presence at the scene, Hanratty was indeed the murderer.

That hasn't deterred the Eye, and perhaps it's even appropriate that the "Paul Foot Award" should commemorate a journalist whose most famous campaign tried to exonerate someone who turned out to be guilty of murder and rape.

What's surprising is not that there's unreliable news out there - deliberate or otherwise, it's ubiquitous. No, the amazing thing is that anyone thinks there's sjuch a thing as reliable news. Naturally the unreliability of news is a matter of degree, but as Denzel Washington said, we have a choice. We can be uninformed, or we can be misinformed.

Belief in fake news and a post-fact world, gullible though it may seem, has been extremely convenient for those suffering cognitive dissonance in the wake of Brexit and Trump. Don't like the outcome of an election? Your response is easy. Why bother wondering why other people voted for something you don't like?  Instead you can dismiss the other side as ignorant morons, reliant as they are on fake news in a post-fact world.

The news that you rely on however, collated and distributed by people like yourself, must be true. The other lot will believe anything.

Of course this is a kind of xenophobia as toxic in its own way as that spouted by some of the racist right. Poor people from the provinces! What scum!

Like most people of my social and educational class I yield to no-one in my eager disparagement of the celebrity-obsessed, obese and ignorant poor. It's just that I can't quite fight away the suspicion that they know the reality of their own lives better than I do. And better than my friends, family and assorted experts do.

As for journalists . . .

Fake news. Gah!


Wednesday 25 January 2017

The Supreme Court and Brexit - oblivious to the abyss

After the Divisional Court ruling in Miller, cyberspace was alive with (pro-Remain, surprisingly) constitutional lawyers piling in to criticise the judgment against the Government.  It's too early to say if yesterday's confirmation by the Supreme Court will attract the same opprobrium (although one such lawyer tweeted that the more he looked at it the more he found it full of holes*).

I'm not going to pile in with my own analysis - in an age which has had enough of experts my status as someone who briefly practised law in another field nearly 20 years ago does not even get me into that discredited bunch - but a summary of the issues might be of interest, and there's an overarching constitutional point which transcends the technical detail.

One of the dissenting judges, Lord Hughes, boiled the case down to two conflicting principles (para.277 of the judgment).

On the one hand the Executive cannot change law made by Act of Parliament or by the common law.

On the other the making and unmaking of treaties is within the competence of the government via royal prerogative.

Thus the conflict arises. If the UK withdraws from the various EU treaties that would seem to be concern the prerogative.  But because the European Communities Act 1972 has the effect of importing into UK law the substance of those treaties, UK law would be changed thereby.

Ah, said the Government, but no UK legislation would be changed by the triggering of Article 50. The ECA 1972 would remain unchanged. We would merely cease after two years to be a signatory to various treaties.

Maybe, said Mrs Miller's lawyers, but the fact is that UK laws would be changed as a result, without Parliament's say so.

Not so fast, said the Government. In the first place there'll be a Great Repeal Bill in which all current provisions of EU law will be retained, until Parliament repeals them.  Moreover there'll be a two year period of negotiation during which there's plenty of opportunity for Parliament to be involved.

The one thing that's immediately obvious about the above is that, until yesterday's judgment, no-one knew what the law was.

How could it be otherwise? The UK has never done anything like this before. The one constant factor in all the earlier House of Lords cases cited to the Court was that none of them covered the same ground. They were persuasive rather than directly on the point.

Moreover if the law had been clear the litigation would never have taken place. The lawyers of one side or the other would have said, "Listen, you're wasting your time here". But none of them did.

If the law had been clear the Court would have reached a unanimous decision. But there was a majority of 8 to 3.

Of course, the Supreme Court is adept at wording its judgments so as to appear that the law has been well-known all along. It has merely clarified what should have been readily apparent.

But this is a fiction. To clarify is to choose, and to choose is to create. The judges have created law. They have decided that the ECA is not merely a conduit down which the law from Europe flows. Even though the Act is not repealed, the effect of withdrawal from the treaties is to change UK law.

I repeat, no-one knew this before Miller.

And here is the overarching consitutional point I mentioned above. The case was brought to stop HMG changing the law without parliamentary consent. But on what basis did the Court make the law to stop the Government? Why, it did so without parliamentary consent.

And here's the real problem of Miller.

If the Government can't make laws without Parliamentary approval, why should the Supreme Court? After all, the Government is made up of individual MPs each elected by tens of thousands of people, gathering together as the largest Parliamentary political unit. In what world does the secretive appointment of eleven lawyers confer greater legitimacy?

The Court has laid itself open to the charge of hypocrisy, doing itself what it says the Government cannot do.

This is what the Supreme Court should have said:

"We accept there is a fundamental clash between two constitutional principles - that of Parliamentary sovereignty and the Royal prerogative. It is impossible to tell from the ECA what was the intention of Parliament at the time the Act was passed, or to derive from the case law any relevant binding principles. This situation has never arisen before. 

Both sides have argued persuasively, but the onus is on Mrs Miller to prove her case. We cannot find for Mrs Miller without creating law ourselves. This is something which the Courts should always be reluctant to do, because while they have a distant democratic mandate to adjudicate, they have no mandate whatsoever to legislate.  In circumstances where the substance of the issue before us is a dispute about law-making without Parliamentary consent, it would be extremely damaging for the authority and status of the Court to make law ourselves without any such consent. The law is not clear. It is for Parliament to clarify it should it wish to do so, not the Courts. For this reason the we must find for the UK Government".

Yet both the Divisional and Supreme Courts sailed on in their self-regarding way, unaware of the intellectual, moral and political abyss yawning beneath their feet.

Or nearly. Amid many useful things said in the dissenting judgments, thank goodness for this from Lord Reed (Para 240):

"Secondly, and more fundamentally, controls over the exercise of ministerial powers under the British constitution are not solely, or even primarily, of a legal character, as Lord Carnwath explains in his judgment. Courts should not overlook the constitutional importance of ministerial accountability to Parliament. Ministerial decisions in the exercise of prerogative powers, of greater importance than leaving the EU, have been taken without any possibility of judicial control: examples include the declarations of war in 1914 and 1939. For a court to proceed on the basis that if a prerogative power is capable of being exercised arbitrarily or perversely, it must necessarily be subject to judicial control, is to base legal doctrine on an assumption which is foreign to our constitutional traditions. It is important for courts to understand that the legalisation of political issues is not always constitutionally appropriate, and may be fraught with risk, not least for the judiciary."

UPDATE: Here's a link to an article by Mark Elliott, Professor of Public Law at Cambridge University, in Counsel Magazine.  At one point Prof Elliott describes the Supreme Court's analysis as "sorely lacking".  Ouch.

Tuesday 17 January 2017

Perpetual crisis in the NHS, and some suggestions for fixing it.

So the perpetual crisis of the NHS rolls into another of its acute phases.  Having had much more contact with the health service than I would have liked in the last two months, I can confirm that parts of it are chaotic and overstretched.  To submit to its cold embrace is a similar feeling to entering an airport - once on the wrong side of reception you become kine.  You leave your humanity at the gate. My wife said to me, "Your trouble is that when you actually get to see a doctor you try not to seem ill".  This is true.  It stems from my desire to fight against the dehumanising aspect of UK healthcare.

Anyway, what to do about Britain's best-loved institution?

The NHS's problems stem from the fact that we are not giving it enough money to fund adequately the demands we as a population make on it (I'll qualify this proposition in a moment).

This is happening for a number of reasons.  Inflation in the NHS runs at about 7%, about three times greater than current domestic inflation.  Moreover the range and complexity of available treatments is very much greater, more complex and more expensive than in the late 1940s.  At its inception the average working man died before he was 50.  Now he lives until beyond 80.

It's very expensive to maintain an old person.  Our population is getting top heavy with the elderly, which means the proportion of people paying taxes to fund the NHS is tending to shrink.  The population is also getting bigger quite quickly, to a considerable extent because of migration (one of the great pities of this debate is that almost no-one can bring themselves to say this in public, something which also cripples the national conversation on housing, inequality and the environment).

Many elderly people remain in hospital because there is nowhere they can adequately be looked after. Often their relatives don't want to take the responsibility themselves, or no local authority places are available.

A lot of people lead very unhealthy lifestyles.  A quite frightening proportion of Britons is obese.

Demand and cost are increasing at a rate which is outstripping our inclination or ability to pay for the health service.

We could fund the NHS more lavishly by paying more tax.  History tends to show however that there is a maximum that governments have been able to screw out of an electorate.  From memory it's about 36%.  We are there or thereabouts at the moment.  The likelihood is that HMG would fail to bring about significant increases in funding without cutting spending elsewhere.  Those arguing for NHS spending increases - the Labour party for example - need to explain what other services they would cut instead.

Of course, this being the Labour Party, the likelihood is that they would plug the gaps with borrowing. To recap, HMG is already borrowing more than £1 billion every week just to stay afloat. With Philip Hammond's recent abandonment of plans to balance Britain's budget by the end of this parliament, the Government's finances are already teetering close to the point of no return, calculated by some economists as the point at which debt equals about 100% of GDP*. In any event, the increase would essentially involve financing current spending (as opposed to infrastructure) by borrowing, which is morally indefensible, involving as it does using future income streams (ie the income of the yet-unborn) to fund the lifestyle and services we want to have today.

If the NHS's problems can't be fixed by increasing taxes or borrowing, what can be done?  Here's a range of piecemeal solutions -

Clamp down on health tourism. One trust which has carried out a pilot scheme reckons to have saved hundreds of thousands of pounds. Roll it out nationwide.

Monitor trust spending more closely. An NHS trust in Manchester recently advertised for an Assistant Diversity Co-ordinator at a salary of £70,000. One imagines that together with her boss this will be costing the trust the best part of £200,000 per year.  A Doctor friend tells me that the Chief Exec of this Trust is a raging Trotskyist, so no surprise there.

Train more British doctors and nurses. Locum staff are costing the NHS hundreds of millions.

Penalise those who don't take their health seriously. Impose a sugar tax and a minimum price for alcohol.

Campaign to consolidate centres of excellence. It's much better to have one urology unit with four consultants rather than two fifty miles apart with two consultants (yes, I know people don't like it).

Outsource routine operations like hip operations to the private sector, which can specialise and institute economies of scale.

Make GPs provide better services for the same money. As the Junior Doctors strike showed, the medical profession has been treated with kid gloves for far too long. The public starts off with great sympathy for doctors, until it discovers the realities of their pay and pension arrangements. Doctors work hard, at least at the beginning of their careers, and are suckling at a very generous teat.

Make people pay to see a GP. I pay £8 for a prescription and about £20 to see a dentist. There's no reason why a similar arrangement couldn't work in the NHS. By all means make the treatment free for someone who could prove they were on benefits. A service which is free at the point of use invites unrestricted demand. There is simply no disincentive for the daft or hypochondriac not to visit the Doctor. As with the judicial system, there has to be a financial cost of accessing the service or it will be overwhelmed.

Incidentally, the cost of seeing a GP in Ireland is about £50.  The cost of going to Casualty without seeing a GP first is about £100.

This brings me back to my third paragraph. It implies that somewhere out there a nameable sum exists which could adequately fund the NHS's demands. There is not. The more money you give the NHS the more people ask of it.

Will Theresa May's government grasp the nettle? Of course not. No government will, as long as the pain of inaction is perceived to be less than the pain of doing something.

The Labour Party will never introduce NHS charging, notwithstanding the comparable situation with prescriptions and dentistry, because, no matter how unfit it might be for the 21st century, the NHS is its founding achievement.

Elements of the Tory party might be aware of how to begin fixing it, but they know it would mean electoral suicide.

I can see only one scenario in which the requisite steps might take place. That would be after a long period of Labour government with attendant financial incontinence and NHS disaster. Then, and only then, might the Tories pluck up the courage. But at this stage it is impossible to see that scenario lurching into being.

The NHS crisis - not going anywhere soon.

*By happy coincidence, the same day I wrote this piece the Office for Budget Responsibility issued a report saying that the public finances were on an "unsustainable path" and that at the present rate of deterioration public sector debt could increase to 234% of GDP in 50 years time.  It blamed increased spending on the NHS and state pensions in particular.  If the OBR is right our economy will of course be toast long before 2066. Something will have to be done. What? When? And by whom?