I yield to no-one in my love for Star Wars. As I've written here before, I saw the original films when they came out in the 70s, and was young enough to be overwhelmed by them, although old enough to recognise that the moral, personal and political world they portrayed was fundamentally tosh.
I made my wife, my eldest and a friend come out and watch Rogue One with me yesterday, because it was my birthday. This is what I thought.
1. It was an enjoyable way to spend two and quarter hours. The film looks great, although once SPOILER ALERT you know that the fleeting cameos of Peter Cushing and the young Princess Leia are merely CGI mock-ups, you can tell. Interesting that the human face should prove so hard to fake.
2. Rogue One is, as Mark Kermode keeps telling us, dark; which is all very well, except part of the attraction of the original three films was that the darkness (particularly in The Empire Strikes Back, easily the best of them) was nicely mixed with humour, a variety of tone which is very, very difficult to accomplish without the one undermining the other. No such luck here. The new 'droid, whose name escapes me, was often funny, but the other characters were wooden dullards by comparison.
3. The original characters were interesting and memorable. Any one of Han Solo, Leia, Vader, C3PO, the other 'droid, Obi or Yoda has more interest than the whole of Rogue One's cast put together. The new baddie, played by Aussie actor Ben Mendelsohn, looks like a middle-manager at Debenhams who has just been told the company golf day has been cancelled, again. I didn't care SPOILER ALERT that the cast were overwhelmed by the Death Star at the end, because they failed to come alive in the first place.
4. The plausibility issue. The blind martial arts bloke who thinks the Force will protect him, and then finds out that it won't could have made tragic viewing, but Rogue One just made it look the idea of the blind ninja ridiculous. The hero of David Carradine's Kung Fu series in the 70s looked daft enough fighting men with guns, and he could actually see. Why do the Death Star operators don hats which look to this (retired) cricketer as they have put their heads inside a bowling machine? We don't know, and the film doesn't tell us.
5. My son points out that the Empire in the Star Wars franchise is perhaps the only one in (cultural) history to have no ideology. It's almost as if the Empire is so bad that its sole purpose lies in being bad, just for its own sake. And then there was the lazy set design - Darth Vader lives in a ghastly evil genius tower set at the heart of an Icelandic CGI lava flow. Why? Did he go to some architect and say, "I'd like an evil genius tower please"? It's almost as if the film makers had got together and said, "How could we find somewhere for Darth Vader to live which will look like every villain's retreat ever since cinema began?" As for the transmission tower from which, at the denouement, our heroine - the heroically dull Felicity Jones - must send the Death Star plans to the Rebel mothership, how curious and unimaginative that the clunking controls should be on the outside of the tower, exposed to the elements and in plain view of passing Empire vessels. Yes, expecting Star Wars to be realistic is naive. But what we expect from fantasy adventure is not realism: it is internal consistency. If the world is to be like that, we want it to make sense on its own terms. This is something Mervyn Peake does so well in Gormenghast, and, for that matter, George RR Martin in Game of Thrones.
6. The music. John Williams has taken a back seat, and the reins have been taken by Michael Giacchino, who first came to my attention with The Incredibles. Giacchino does a decent job, but he is not Williams, and the few occasions when he uses the master's tunes only remind one how operatic and varied were the original scores. I listened to Luke and Leia today from The Empire. Now that is quality.
7. That so half-hearted, ill thought through and badly written a film (the Council scene is beyond lame) could have been given a reasonable reception goes to show that film critics my age who were brought up on the originals are almost willing the new films to be as good as the first three. I think the truth is that the first three mixed adventure, humour, great characters, peerless scores, a new world of special effects and a sort of camp approach to cliche which induced a suspension of disbelief in a young audience which is now well on into middle age.
So on the whole B or B minus. But I'll still be going to see the next one. My birthday or not.
Wednesday 21 December 2016
Wednesday 7 December 2016
Brexit reflections #16 - Judicial activism, Article 50 and the irony of Miller
That amiable denizen of Pinner, Danny Finkelstein, has written an article in the Times this morning which lays bare the bitter irony of the Supreme Court's handling of the Article 50 case. He writes, "Courts have to interpret the law, and the point of law the Supreme Court is interpreting is . . . whether the power of governments to agree treaties extends to their power over Article 50".
In a way Finkelstein's clumsy syntax makes the problem clear. The Court is not "interpreting . . . whether". It is deciding whether.
Let me explain.
No one knows what the legal position is regarding Article 50 and the Royal Prerogative. If anyone did, the case would never have come to Court. If, for example, triggering Art 50 without a vote was manifestly unlawful, the Government's advisers would have said, "Look chaps. Don't waste public money. You're going to lose". But actually both sides' advisers will have said, "You've a chance of winning because you've got an arguable case. But we really don't know because these circumstances have never arisen before."
So the law is not clear. The Court will clarify it. But consider what that process involves. It involves picking from various options. There may be only two (Options A and B, say), but it's much more realistic to say that there will be half a dozen.
In picking one option rather than all the others the Court is making a decision. It is deciding what the law is. Not interpreting.
So we have the bitter irony that a case brought to prevent the Government triggering Art 50 without democratic scrutiny by Parliament will be decided instead by the judicial activism of the Supreme Court.
Thus a Government elected by the people on a manifesto pledge to hold an In-Out referendum and to implement the outcome if Leave won, buttressed by the votes of nearly 18 million citizens, will be stymied and obstructed by eleven unelected judges.
What particularly grates about the prospect of a victory by Ms Miller and her City chums is that a case designed to prevent law-making by the executive - never mind its double mandate from the electorate - will have been decided instead by the law-making of a tiny group of people with no mandate at all. At any time. Ever.
Of course the fact that the judges are from the exact demographic which opposed Brexit so passionately and sneered at the mugs from the provinces who, you know, didn't think the EU worked so well for them, just makes it worse.
If the Court upholds the earlier decision - which I think it will, albeit for different and more carefully argued reasons, perhaps with a couple of dissenting voices - it will do so in terms which do their best to disguise its legal activism. It will say that this is what the law has always been, and that they have merely interpreted it afresh.
The pro-Remain press - of which Danny Finkelstein is a reasonable and articulate exemplar - will ignore the Court's activism (at best, or fail to notice it at worst), and dismiss the resulting surge of pro-Brexit anger as the inchoate howl of the ignorant and uneducated.
I've referred before on here to the historian Tom Holland's identification of this clash as one between democracy and the law. I think that's a fair characterisation on the whole. But a finding for Ms Miller will be to prefer one sort of decision making (the undemocratic one of the Court) to one backed up by an election-winning manifesto pledge and referendum result.
That is not a clash between democracy and the law. It is a clash between democracy and anti-democracy, in which democracy is the loser.
In a way Finkelstein's clumsy syntax makes the problem clear. The Court is not "interpreting . . . whether". It is deciding whether.
Let me explain.
No one knows what the legal position is regarding Article 50 and the Royal Prerogative. If anyone did, the case would never have come to Court. If, for example, triggering Art 50 without a vote was manifestly unlawful, the Government's advisers would have said, "Look chaps. Don't waste public money. You're going to lose". But actually both sides' advisers will have said, "You've a chance of winning because you've got an arguable case. But we really don't know because these circumstances have never arisen before."
So the law is not clear. The Court will clarify it. But consider what that process involves. It involves picking from various options. There may be only two (Options A and B, say), but it's much more realistic to say that there will be half a dozen.
In picking one option rather than all the others the Court is making a decision. It is deciding what the law is. Not interpreting.
So we have the bitter irony that a case brought to prevent the Government triggering Art 50 without democratic scrutiny by Parliament will be decided instead by the judicial activism of the Supreme Court.
Thus a Government elected by the people on a manifesto pledge to hold an In-Out referendum and to implement the outcome if Leave won, buttressed by the votes of nearly 18 million citizens, will be stymied and obstructed by eleven unelected judges.
What particularly grates about the prospect of a victory by Ms Miller and her City chums is that a case designed to prevent law-making by the executive - never mind its double mandate from the electorate - will have been decided instead by the law-making of a tiny group of people with no mandate at all. At any time. Ever.
Of course the fact that the judges are from the exact demographic which opposed Brexit so passionately and sneered at the mugs from the provinces who, you know, didn't think the EU worked so well for them, just makes it worse.
If the Court upholds the earlier decision - which I think it will, albeit for different and more carefully argued reasons, perhaps with a couple of dissenting voices - it will do so in terms which do their best to disguise its legal activism. It will say that this is what the law has always been, and that they have merely interpreted it afresh.
The pro-Remain press - of which Danny Finkelstein is a reasonable and articulate exemplar - will ignore the Court's activism (at best, or fail to notice it at worst), and dismiss the resulting surge of pro-Brexit anger as the inchoate howl of the ignorant and uneducated.
I've referred before on here to the historian Tom Holland's identification of this clash as one between democracy and the law. I think that's a fair characterisation on the whole. But a finding for Ms Miller will be to prefer one sort of decision making (the undemocratic one of the Court) to one backed up by an election-winning manifesto pledge and referendum result.
That is not a clash between democracy and the law. It is a clash between democracy and anti-democracy, in which democracy is the loser.
Friday 2 December 2016
Brexit reflections #15 - the myth of judicial independence
Following the High Court's Article 50 hearing there's been a lot of rubbish written recently about judicial impartiality. Judges are independent, goes the cry (you can tell that a lot of the writers, even the ones on the Left, would really like to carry on with a few choice extracts from Henry V).
But if you think about it for a moment, judicial independence is a myth.
It's true that, once they get into office, judges are free to apply the law as they see fit, always subject to the humiliation of being overturned on appeal. However there's the vexed question of how they get to be judges in the first place, and moreover what qualities they bring with them to the post.
In the old days becoming a judge was, like the process of becoming Queen's Counsel, a matter of a tap on the shoulder. Is old Scroggins a sound chap? Very much so. Not bad for a Wykehamist. Sign him up then, pronto. That all changed in the Blair years. Exhaustive application forms were to be filled in. Applicants were invited to state the steps they had taken to promote diversity (one QC applicant failed on this part of the test; surprising, since he was married to a black woman, a fact he didn't dare mention). Interview panels were set up. A small cottage industry (in which I once made a fleeting appearance) grew up to assist applicants, one which was so successful that some forms now require hopefuls to state whether they have used its services.
The effect of this process has been to accelerate what was in any event a tendency. The old Sir Bufton Tufton judges one still occasionally came across in my sojourn in the profession have been gradually replaced by the impeccably liberal types who toked on the occasional spliff at Oxford in the 60s or pogo'd to the Clash in the 70s. These men and women are in the 50s and 60s, and I know a good many of them. They are civilised, interesting, intelligent and, almost invariably, Left of centre and pro-EU.
In a way it's true that they are independent; but they are not independent of themselves. They come into judicial office as fully formed mature individuals, with views of the world and of British society they take with them into office. The only one I can think of who is not of the liberal Left claims to shoot rabbits through his bathroom window whilst at stool (notwithstanding the grotesqueries, this is a picture I would quite like to see).
And so do these people put their weltanschauung to one side whilst on the bench? They may honourably try. But, as I've written elsewhere, judges so often, consciously or otherwise, look for the meritorious party and then search for the legally defensible way of finding for them. They do not merely examine the law. Legal history is full of the antics of these judicial contortionists, and their hapless thrashing around has given rise to the old cliche, "hard cases make bad law".
The thorough trashing the High Court got for their handling of the Art 50 case (even from pro-Remain legal academics) suggests either that such motivations may have been at work or alternatively that the judges in the Miller case were simply way out of their depth.
Expect a more sophisticated version of the same in the Supreme Court. Judicial independence is a load of tosh.
But if you think about it for a moment, judicial independence is a myth.
It's true that, once they get into office, judges are free to apply the law as they see fit, always subject to the humiliation of being overturned on appeal. However there's the vexed question of how they get to be judges in the first place, and moreover what qualities they bring with them to the post.
In the old days becoming a judge was, like the process of becoming Queen's Counsel, a matter of a tap on the shoulder. Is old Scroggins a sound chap? Very much so. Not bad for a Wykehamist. Sign him up then, pronto. That all changed in the Blair years. Exhaustive application forms were to be filled in. Applicants were invited to state the steps they had taken to promote diversity (one QC applicant failed on this part of the test; surprising, since he was married to a black woman, a fact he didn't dare mention). Interview panels were set up. A small cottage industry (in which I once made a fleeting appearance) grew up to assist applicants, one which was so successful that some forms now require hopefuls to state whether they have used its services.
The effect of this process has been to accelerate what was in any event a tendency. The old Sir Bufton Tufton judges one still occasionally came across in my sojourn in the profession have been gradually replaced by the impeccably liberal types who toked on the occasional spliff at Oxford in the 60s or pogo'd to the Clash in the 70s. These men and women are in the 50s and 60s, and I know a good many of them. They are civilised, interesting, intelligent and, almost invariably, Left of centre and pro-EU.
In a way it's true that they are independent; but they are not independent of themselves. They come into judicial office as fully formed mature individuals, with views of the world and of British society they take with them into office. The only one I can think of who is not of the liberal Left claims to shoot rabbits through his bathroom window whilst at stool (notwithstanding the grotesqueries, this is a picture I would quite like to see).
And so do these people put their weltanschauung to one side whilst on the bench? They may honourably try. But, as I've written elsewhere, judges so often, consciously or otherwise, look for the meritorious party and then search for the legally defensible way of finding for them. They do not merely examine the law. Legal history is full of the antics of these judicial contortionists, and their hapless thrashing around has given rise to the old cliche, "hard cases make bad law".
The thorough trashing the High Court got for their handling of the Art 50 case (even from pro-Remain legal academics) suggests either that such motivations may have been at work or alternatively that the judges in the Miller case were simply way out of their depth.
Expect a more sophisticated version of the same in the Supreme Court. Judicial independence is a load of tosh.
An end to austerity?
I'm not the only person to think that last week's Autumn Statement marks a shift in economic outlook by the Government. This may seem arcane, but it says a lot about where Britain is as a nation.
You'll recall that in the dim and distant past of his Chancellorship, George Osborne had plans to bring down the deficit to zero by the end of this Parliament. His successor, Philip Hammond, has abandoned these plans. There will be a number of reasons for this. The first might well be the economic uncertainty of approaching Brexit - the last thing the UK needs is an avoidable recession caused by a further squeeze on HMG spending.
It's the other reasons which are interesting though.
One is that the Government thinks that it can stand to borrow a bit more in an era of historically low rates. This is what Labour has been saying for years (although they have also, incoherently, been criticising the Tories for borrowing too much). Another is that a significant part of Osborne's plan for getting borrowing down lay in bearing down on tax credits, the in-work benefits introduced by Gordon Brown. Many Tory MPs, fearful at the reaction of their constituents, refused point blank to countenance this and the plan was quietly dropped.
I can't think of a better example of the ratchet effect of public spending - giving benefits to people is very easy; taking them away is very difficult.
What will the effect be of Hammond's purse-string slackening? The obvious one is that as the deficit remains stubbornly high our stock of debt goes up still further. Hammond's spending is calculated to take Britain's stock of debt to 90% of GDP, the point at which, according to some research, interest repayments start to impede an economy's ability to grow. Interest rates on bonds are low now, but in the future borrowing will have to be rolled over, at rates which are unknown but could scarcely be lower than at present. Every extra £ borrowed is a gamble on future interest rates.
The proposition that a state cannot go on living beyond its means forever is susceptible to the observation that provided GDP (or more accurately tax revenue) continues to grow more quickly than accumulated debt it is likely that markets will continue to lend at affordable rates. The trouble with this calculation in the case of the UK is the reverse is happening. Public debt is rising faster than tax revenues. In other words, we are spending an ever increasing amount of our national income on interest payments.
So the situation is that with a narrow but serviceable Tory majority in the Commons, the opposition in disarrary, there are insufficient fiscal conservatives at Westminster to grasp the nettle. We are back in the land of Please-Lord-make-me-solvent-but-not-yet. To a return to a point made many times on this blog, we cannot afford to pay for our public services. We appear to be intent on continuing to live unaffordably forever, the pain of living within our means being too great for it to be contemplated.
This state of affairs will continue until the pain of living beyond our means is even greater. I shudder to think about what our country will be like at that point.
You'll recall that in the dim and distant past of his Chancellorship, George Osborne had plans to bring down the deficit to zero by the end of this Parliament. His successor, Philip Hammond, has abandoned these plans. There will be a number of reasons for this. The first might well be the economic uncertainty of approaching Brexit - the last thing the UK needs is an avoidable recession caused by a further squeeze on HMG spending.
It's the other reasons which are interesting though.
One is that the Government thinks that it can stand to borrow a bit more in an era of historically low rates. This is what Labour has been saying for years (although they have also, incoherently, been criticising the Tories for borrowing too much). Another is that a significant part of Osborne's plan for getting borrowing down lay in bearing down on tax credits, the in-work benefits introduced by Gordon Brown. Many Tory MPs, fearful at the reaction of their constituents, refused point blank to countenance this and the plan was quietly dropped.
I can't think of a better example of the ratchet effect of public spending - giving benefits to people is very easy; taking them away is very difficult.
What will the effect be of Hammond's purse-string slackening? The obvious one is that as the deficit remains stubbornly high our stock of debt goes up still further. Hammond's spending is calculated to take Britain's stock of debt to 90% of GDP, the point at which, according to some research, interest repayments start to impede an economy's ability to grow. Interest rates on bonds are low now, but in the future borrowing will have to be rolled over, at rates which are unknown but could scarcely be lower than at present. Every extra £ borrowed is a gamble on future interest rates.
The proposition that a state cannot go on living beyond its means forever is susceptible to the observation that provided GDP (or more accurately tax revenue) continues to grow more quickly than accumulated debt it is likely that markets will continue to lend at affordable rates. The trouble with this calculation in the case of the UK is the reverse is happening. Public debt is rising faster than tax revenues. In other words, we are spending an ever increasing amount of our national income on interest payments.
So the situation is that with a narrow but serviceable Tory majority in the Commons, the opposition in disarrary, there are insufficient fiscal conservatives at Westminster to grasp the nettle. We are back in the land of Please-Lord-make-me-solvent-but-not-yet. To a return to a point made many times on this blog, we cannot afford to pay for our public services. We appear to be intent on continuing to live unaffordably forever, the pain of living within our means being too great for it to be contemplated.
This state of affairs will continue until the pain of living beyond our means is even greater. I shudder to think about what our country will be like at that point.
Thursday 3 November 2016
Hello to (and from) Voice of Peason.
Ed Vaizey, the former culture minister, was quoted recently in the Torygraph as saying the arts Establishment in Britain was suffering from relentlessly Left-wing groupthink. As someone who's laboured in this field in a minor capacity, my response to this apercu was of the No-Shit-Sherlock variety.
That's why, after five years blogging under my real name, with a modest but growing readership, I've finally become too worried about who might be reading it, and opted instead for the title Voice of Peason (Peason being Molesworth's "grate friend" in How To Be Topp, and other deathless titles from the pens of Geoffrey Willans and Ronald Searle).
It's a shame that Britain now has to be like this.
Artists are prone to Left-wingery for a variety of reasons. They - we - want to be nice. We're concerned with morality. We wish resolutely to create and interpret the world on our own terms. Those terms do not necessarily include close study of the externalities, which can get in the way of our vision. We also find the sobering nuts and bolts of economics somewhat tedious; I used to be the same, but then I became interested and have never looked back. As Mrs Thatcher said, the facts of life are Conservative.
Why is it that the Left hate the Tories so much? Despite thirty years as a Lefty, I still can't answer that satisfactorily. I suppose I thought the Tories were mean, favoured the rich and hated the poor. If that were true it would make Conservatives eminently dislikeable. In fact because the Tories tend to run the economy better than Labour they provide more jobs, and because they are more tight-fisted they tend to run public services on a more sustainable basis. But these are arguments that, in my experience, no-one on the Left wants to hear. Speaking to friends I detect a refuge taken in self-righteousness, as if the more they hate the Tories for their alleged heartlessness the better it makes them feel about themselves.
So what do I believe, and do my beliefs make me repellent?
I am in favour of free-speech unless it threatens or might cause violence; I don't believe anyone has the right not to be offended.
I believe we can't afford our public services in an age when we're living well into our 80s; in the long run the country must live within its means.
I don't care what colour someone's skin is, but I do care very much what they do, and I don't think we should be afraid of saying we don't like someone's culture. I'm baffled why we let into Britain so many people who persist in clinging to the practices which made their own countries such a mess.
I don't think we should be ashamed of our imperial past which, as well as much that's bad, included action to stop slavery and exporting some of the best aspects of our culture; we always need to ask what the countries we colonised would have been like if we had left them alone.
I'm opposed to Scottish independence because it would make Scots dramatically poorer, but I'm pleased we voted to leave the EU because whilst it benefits me, I can see around me all the time the deleterious consequences of uncontrolled migration for people at the bottom end of British society.
If these views sound anathema, please don't deprive yourself of the opportunity to listen to someone who disagrees with you.
That's why, after five years blogging under my real name, with a modest but growing readership, I've finally become too worried about who might be reading it, and opted instead for the title Voice of Peason (Peason being Molesworth's "grate friend" in How To Be Topp, and other deathless titles from the pens of Geoffrey Willans and Ronald Searle).
It's a shame that Britain now has to be like this.
Artists are prone to Left-wingery for a variety of reasons. They - we - want to be nice. We're concerned with morality. We wish resolutely to create and interpret the world on our own terms. Those terms do not necessarily include close study of the externalities, which can get in the way of our vision. We also find the sobering nuts and bolts of economics somewhat tedious; I used to be the same, but then I became interested and have never looked back. As Mrs Thatcher said, the facts of life are Conservative.
Why is it that the Left hate the Tories so much? Despite thirty years as a Lefty, I still can't answer that satisfactorily. I suppose I thought the Tories were mean, favoured the rich and hated the poor. If that were true it would make Conservatives eminently dislikeable. In fact because the Tories tend to run the economy better than Labour they provide more jobs, and because they are more tight-fisted they tend to run public services on a more sustainable basis. But these are arguments that, in my experience, no-one on the Left wants to hear. Speaking to friends I detect a refuge taken in self-righteousness, as if the more they hate the Tories for their alleged heartlessness the better it makes them feel about themselves.
So what do I believe, and do my beliefs make me repellent?
I am in favour of free-speech unless it threatens or might cause violence; I don't believe anyone has the right not to be offended.
I believe we can't afford our public services in an age when we're living well into our 80s; in the long run the country must live within its means.
I don't care what colour someone's skin is, but I do care very much what they do, and I don't think we should be afraid of saying we don't like someone's culture. I'm baffled why we let into Britain so many people who persist in clinging to the practices which made their own countries such a mess.
I don't think we should be ashamed of our imperial past which, as well as much that's bad, included action to stop slavery and exporting some of the best aspects of our culture; we always need to ask what the countries we colonised would have been like if we had left them alone.
I'm opposed to Scottish independence because it would make Scots dramatically poorer, but I'm pleased we voted to leave the EU because whilst it benefits me, I can see around me all the time the deleterious consequences of uncontrolled migration for people at the bottom end of British society.
If these views sound anathema, please don't deprive yourself of the opportunity to listen to someone who disagrees with you.
brexit reflections 14 - the High Court rules on Article 50
So at mid-day today the High Court has ruled that the Government must get Parliamentary approval to invoke Article 50. What are we to make of this?
The most obvious consequence will be to slow down the Brexit process. The Government's appeal to the Supreme Court won't come to a conclusion till January. If HMG loses, there may have to be an Act of Parliament, which can be held up by MPs or by the Lords. Clauses could be inserted which tie the Government's hands, and it might even be defeated altogether. Mrs May's stated intention of invoking Article 50 by March looks dead in the water. Months of uncertainty await.
Twitter has been awash with gleeful Remainers, pointing out how funny it is that Leavers, having so desperately wanted Parliamentary sovereignty, have been effectively hoist by their own petard. Parliament, the Court has said, is sovereign, and the Royal Prerogative does not extend to overturning Parliament's 1972 legislation putting Britain into the EEC (as it then was).
There are two responses to this, one glib and one more complex. The glib one is that it is also of course comic to see Remainers, happy to see Parliament's sovereignty eroded by EU membership, trumpeting its merits from the rooftops when it suits them.
The more subtle point is that by having a Referendum at all Parliament deliberately chose to step outside our system of representative democracy. It went directly for the democratic jugular. The Court's statement that Parliament is sovereign looks weak and irrelevant when you consider that sovereignty only arises because Parliament has a mandate from the people. No electoral mandate in my lifetime has ever been as specific as that delivered on 23rd June.
Parties run for election on an extensive electoral programme and it is a rare voter that likes everything about the party he votes for. The Brexit referendum was about one issue only however, and Leave won.
Just how exactly, in circumstances where a one-issue Referendum has given the Government a specific mandate, does Parliament's sovereignty trump the clearly expressed will of the people?
The truth is that by granting a Referendum in the first place Parliament opened up the possibility of a second form of democratic legitimacy, running alongside (and potentially in conflict with) the legitimacy of Parliament.
It's worth pausing a moment in this potential conflict to consider just how much of a mandate pro-Remain MPs actually have. I heard Labour MPs Keir Starmer and Pat McFadden on WATO this lunchtime arguing for Parliamentary approval for the triggering of Article 50. But both these men fought tooth and nail in the 2010 General Election to prevent any referendum happening. They lost. They then fought tooth and nail for the Remain campaign. They lost again. In what world do they think they should legitimately be able to delay or stop Article 50?
The same goes of course for the Lib Dems, SNP and Greens.
The historian Tom Holland summed up the present dilemma very well when he Tweeted, 'I'm wondering if Britain has ever before had to decide which is the more important: democracy or the rule of law'.
Ah yes, the law. The court decided, as I said, that the Royal Prerogative did not extend so far as to enable HMG to put in train a process which, after two years, must involve the nullification of the 1972 legislation (it could have circumvented this point by arguing that Art 50 could be revoked part way through, but apparently did not). Outwith the Prerogative, only Parliament can make or unmake UK law.
That's the theory. I am familiar from personal experience with the way the law works. What often happens is that the judges decide which party looks like the more meritorious and then tries to find a defensible legal way of finding for them. The three High Court Judges have said that their decision is not political, but these are men who will have had a view on Brexit long before they ever imagined they might find themselves being involved in such a life or death decision. Who are they and what do we know about their background?
Baron Thomas of Cwmgiedd is the Lord Chief Justice of England and Wales. He is one of the Founding Members of the European Law Institute, a non-profit organisation devoted to European legal development.
Lord Justice Sales, a.k.a Philip Sales QC, is an old friend and colleague of Tony Blair and Derry Irvine, those well-known Eurosceptics.
Sir Terence Etherton, the current Master of the Rolls, is the first High Court judge to enter into a civil partnership.
No doubt these three men did their very best to come to a fair decision on the law and facts. But their education, status, and financial and social position are typical of those who benefit from EU membership and who voted to Remain in it.
Lord Thomas should have recused himself from the bench for this case. The website of his brainchild, the European Law Institute, says it is devoted to 'better law-making in Europe and the enhancement of European legal integration'. It goes on to say that one of its core tasks is 'to evaluate and stimulate the development of EU law, legal policy, and practice, and in particular make proposals for the further development of the acquis and for the enhancement of EU law implementation by the Member States'.
And yet, amazingly, this man's verdict obstructs the path to Britain's leaving the EU. Who could have predicted that?
Justice may have been done, but it doesn't much look like it.
PS In the 24 hours after I wrote this I've come upon the utterances of three legal academics who say the Court got the law wrong. Mark Elliott, Professor of Public Law at Cambridge University writes that the conclusion "is highly contestable. Perhaps . . . the most surprising aspect of (the case) is that the confident certainty of the terms in which the judgment is framed obscures almost entirely the complexity and contestability of the questions to which it gives rise . . ." Ouch.
John Finnis, Professor of Law and Legal Philosophy at Oxford, points to clear parallels between the way that the Royal Prerogative is used to change the law in relation to some tax provisions and the manner in which European elections are called, on the one hand, and the way HMG proposed to trigger Article 50 on the other. In Prof Finnis' words "no one should doubt that notification under Article 50 of the The European Union can likewise (be done without any Parliamentary approval)." Prof Finnis doesn't appear to think much of HMG's legal team.
Thirdly barrister Carl Gardner writes, "the judgment is surprising, it's problematic, and I think it's wrongly decided". The High Court thinks that triggering Art 50 would change the law, and that the law can't be changed except by Parliament. But Gardner thinks that the Court is confused about this, and that the executive often does change the law without recourse to Parliament. Gardner's ringing conclusion is worth quoting at length - "If in 1972 Parliament really did end the government's power by prerogative to (as the court thinks) change UK law by doing anything that alters EU law, then surely every change to EU treaties agreed by Prime Ministers have been unlawful. Why, if this judgment stands, was it lawful for Mrs Thatcher to agree to the Single European Act? Why was it lawful for Mr Blair to sign up . . . to the Social Chapter. The High Court implies . . . that he had no prerogative power to do so. . . What power have ministers ever had to agree . . . to EU measures such as Directives that (as the High Court sees it) change the law in this country when adopted? It seems to me at least arguable that, according to the High Court, all of this was unlawful."
Gardner thinks the Supreme Court won't overturn the decision though.
PPS I've now read commentaries by seven (pro-Remain) legal academics. They all think the Court was wrong.
The most obvious consequence will be to slow down the Brexit process. The Government's appeal to the Supreme Court won't come to a conclusion till January. If HMG loses, there may have to be an Act of Parliament, which can be held up by MPs or by the Lords. Clauses could be inserted which tie the Government's hands, and it might even be defeated altogether. Mrs May's stated intention of invoking Article 50 by March looks dead in the water. Months of uncertainty await.
Twitter has been awash with gleeful Remainers, pointing out how funny it is that Leavers, having so desperately wanted Parliamentary sovereignty, have been effectively hoist by their own petard. Parliament, the Court has said, is sovereign, and the Royal Prerogative does not extend to overturning Parliament's 1972 legislation putting Britain into the EEC (as it then was).
There are two responses to this, one glib and one more complex. The glib one is that it is also of course comic to see Remainers, happy to see Parliament's sovereignty eroded by EU membership, trumpeting its merits from the rooftops when it suits them.
The more subtle point is that by having a Referendum at all Parliament deliberately chose to step outside our system of representative democracy. It went directly for the democratic jugular. The Court's statement that Parliament is sovereign looks weak and irrelevant when you consider that sovereignty only arises because Parliament has a mandate from the people. No electoral mandate in my lifetime has ever been as specific as that delivered on 23rd June.
Parties run for election on an extensive electoral programme and it is a rare voter that likes everything about the party he votes for. The Brexit referendum was about one issue only however, and Leave won.
Just how exactly, in circumstances where a one-issue Referendum has given the Government a specific mandate, does Parliament's sovereignty trump the clearly expressed will of the people?
The truth is that by granting a Referendum in the first place Parliament opened up the possibility of a second form of democratic legitimacy, running alongside (and potentially in conflict with) the legitimacy of Parliament.
It's worth pausing a moment in this potential conflict to consider just how much of a mandate pro-Remain MPs actually have. I heard Labour MPs Keir Starmer and Pat McFadden on WATO this lunchtime arguing for Parliamentary approval for the triggering of Article 50. But both these men fought tooth and nail in the 2010 General Election to prevent any referendum happening. They lost. They then fought tooth and nail for the Remain campaign. They lost again. In what world do they think they should legitimately be able to delay or stop Article 50?
The same goes of course for the Lib Dems, SNP and Greens.
The historian Tom Holland summed up the present dilemma very well when he Tweeted, 'I'm wondering if Britain has ever before had to decide which is the more important: democracy or the rule of law'.
Ah yes, the law. The court decided, as I said, that the Royal Prerogative did not extend so far as to enable HMG to put in train a process which, after two years, must involve the nullification of the 1972 legislation (it could have circumvented this point by arguing that Art 50 could be revoked part way through, but apparently did not). Outwith the Prerogative, only Parliament can make or unmake UK law.
That's the theory. I am familiar from personal experience with the way the law works. What often happens is that the judges decide which party looks like the more meritorious and then tries to find a defensible legal way of finding for them. The three High Court Judges have said that their decision is not political, but these are men who will have had a view on Brexit long before they ever imagined they might find themselves being involved in such a life or death decision. Who are they and what do we know about their background?
Baron Thomas of Cwmgiedd is the Lord Chief Justice of England and Wales. He is one of the Founding Members of the European Law Institute, a non-profit organisation devoted to European legal development.
Lord Justice Sales, a.k.a Philip Sales QC, is an old friend and colleague of Tony Blair and Derry Irvine, those well-known Eurosceptics.
Sir Terence Etherton, the current Master of the Rolls, is the first High Court judge to enter into a civil partnership.
No doubt these three men did their very best to come to a fair decision on the law and facts. But their education, status, and financial and social position are typical of those who benefit from EU membership and who voted to Remain in it.
Lord Thomas should have recused himself from the bench for this case. The website of his brainchild, the European Law Institute, says it is devoted to 'better law-making in Europe and the enhancement of European legal integration'. It goes on to say that one of its core tasks is 'to evaluate and stimulate the development of EU law, legal policy, and practice, and in particular make proposals for the further development of the acquis and for the enhancement of EU law implementation by the Member States'.
And yet, amazingly, this man's verdict obstructs the path to Britain's leaving the EU. Who could have predicted that?
Justice may have been done, but it doesn't much look like it.
PS In the 24 hours after I wrote this I've come upon the utterances of three legal academics who say the Court got the law wrong. Mark Elliott, Professor of Public Law at Cambridge University writes that the conclusion "is highly contestable. Perhaps . . . the most surprising aspect of (the case) is that the confident certainty of the terms in which the judgment is framed obscures almost entirely the complexity and contestability of the questions to which it gives rise . . ." Ouch.
John Finnis, Professor of Law and Legal Philosophy at Oxford, points to clear parallels between the way that the Royal Prerogative is used to change the law in relation to some tax provisions and the manner in which European elections are called, on the one hand, and the way HMG proposed to trigger Article 50 on the other. In Prof Finnis' words "no one should doubt that notification under Article 50 of the The European Union can likewise (be done without any Parliamentary approval)." Prof Finnis doesn't appear to think much of HMG's legal team.
Thirdly barrister Carl Gardner writes, "the judgment is surprising, it's problematic, and I think it's wrongly decided". The High Court thinks that triggering Art 50 would change the law, and that the law can't be changed except by Parliament. But Gardner thinks that the Court is confused about this, and that the executive often does change the law without recourse to Parliament. Gardner's ringing conclusion is worth quoting at length - "If in 1972 Parliament really did end the government's power by prerogative to (as the court thinks) change UK law by doing anything that alters EU law, then surely every change to EU treaties agreed by Prime Ministers have been unlawful. Why, if this judgment stands, was it lawful for Mrs Thatcher to agree to the Single European Act? Why was it lawful for Mr Blair to sign up . . . to the Social Chapter. The High Court implies . . . that he had no prerogative power to do so. . . What power have ministers ever had to agree . . . to EU measures such as Directives that (as the High Court sees it) change the law in this country when adopted? It seems to me at least arguable that, according to the High Court, all of this was unlawful."
Gardner thinks the Supreme Court won't overturn the decision though.
PPS I've now read commentaries by seven (pro-Remain) legal academics. They all think the Court was wrong.
Monday 24 October 2016
Phillip Blond - Red Tory redux
An excellent piece on the Res Publica website reprints an interview Phillip Blond, the man who dreamed up Red Toryism, gave to Le Figaro recently about Brexit. You can read the whole thing here, but here's a bit of cut-and-paste (Blond, I need scarcely add, is a Remainer).
Blond believes that had EU leaders like Juncker and Schulz behaved a bit more sensibly after the vote there might have been no need for Brexit at all. These EU mandarins pretty much killed off the Remain campaign with their hostility, he says. He points out that the much vaunted Four Freedoms (including freedom of movement) are far from absolute, and that France and Germany "have progressively vetoed any real free movement in capital or services". Blond thinks that if the EU made an offer on migration he suspects Theresa May's government "may well put it to the vote, either in another referendum or more likely in a snap general election where the PM decides to argue to stay in the EU".
Personally I think Blond is in cloud cuckoo land here, both on the likelihood of the EU making a renewed offer on migration and of May's government having a change of heart. As I've written before, the EU leadership is too stolid to grasp that the key to the organisation's survival is flexibility. After all, they didn't budge on migration when the referendum was hanging over them. And anyway can you imagine the uproar in the Tory party if May did a volte face?
Blond writes that "whilst Europe understands the perils of external migration and what importing hostile minorities might mean, (the UK working class) experienced internal EU migration as directly threatening their . . . economic security. . . Britain has functioned as the European employer of last resort as the Euro and German austerity have destroyed the labour markets for so many young Europeans. But for working class Britons this has meant a direct threat to their . . . livelihoods, which is why low skilled low educated people voted so heavily to leave the EU. If you want evidence of this - try to get served by a Briton in London, it's virtually impossible. All the waiting staff are charming, degree level educated Europeans, no wonder the white working class thought there was no working future for them in such a Europe".
Amen to that. And then, this being an interview in a French paper, Blond proceeds to stick the boot in to France.
"French secularism has been wholly incapable of engaging with and integrating its Muslim population. . . Even after all the dreadful massacres and killings in France you still have the French state insisting that Islamic radicalism is down to economic inequality which is an idealogical fiction wholly without any evidential basis . . . this blinds France to the issues it must confront".
Britain, on the other hand, "is not in the state of incipient civil war . . . (our) mixed constitution allows difference to be expressed and welcomed into the British social compact whereas France . . . allows no place for . . . the development of integrated identities . . . all difference is suppressed in the name of a generic identity . . . France's political identity is too brittle to incorporate others . . ."
I'm not sure he's right that Britain's more accommodating outlook has been a good thing. It also means we've let in a lot of people whose ethos sits uneasily, to put it mildly, with ours, without making any effort to assimilate them.
And then, pertinently, Blond has this interesting passage on the absolutism of Islam, as a contrast to the mediated thought of European Jews and Christians.
"But far too much of modern Islam is dangerous, because much of the modern Islamic mainstream has rejected its mystical or mediated elements and is therefore committed . . . to a form of absolutism which paradoxically is exactly what French secularism is - hence you have a conflict of the absolutes. In Britain we . . . deny any absolutism to politics. In the end though . . . Europe must rediscover its Greek, Jewish and Christian heritage - all of which thought through the absolute and created intermediate thinking that believe we knew but could never completely know the absolute".
I agree that Britain is a less absolutist country than France (the cry of the French intellectual - "This may work in practice; but does it work in theory?!"), but I don't think we are any better placed to engage with fundamentalist Islam - our tendency to try and accommodate, to muddle along just means we are less likely to confront it head on. To our cost.
Blond goes on to deplore Conservatism's fixation with liberalism - the me-first culture. Globalism hasn't helped either, for "the Western working (and lower middle) classes have not seen any real terms wage rises . . . for a generation, it's the . . . developing world and the very very rich of the West who have massively benefited from the liberal settlement . . . Indeed, coupled with mass migration and the license that social liberalism gives to it - not only are people hit economically but also socially and culturally. Traditional centuries-long identities are repudiated and ignored, and sectarian communities are imported and set up with little or no effort at integration. So it is a great relief to see Conservative party draw a line of distinction between neo-liberal policies of both left and right and to try to set up a conservative offer that seeks to create an inclusive and mutually self and other enhancing capitalism and the social and cultural bonds that such a system needs in order to function . . . (I think he's much too optimistic about conservatism here). Yes the working classes have been abandoned since the ascension of Mrs Thatcher, even then before Thatcherism the working classes were not well served by their advocates . . ., who began through social liberalism to take apart stable working class communities and attack the extended and the nuclear family as patriarchal and outmoded . . .
And on to the City, which Blond says "is a massive British financial asset but it does not really serve Britain as well as it might, it has no patriotic capital, no interest except in the centralization and arbitrage of money, and it has no wish or incentive in decentralizing capital to invest in the regions . . . outside of London. So a break with that model of the City would be most welcome and will I think occur".
"In a time of deep insecurity people's identities and cultures need protection and fostering, and part of this does mean the need to limit unprecedented levels of migration, some which is deeply hostile to European values . . . globalisation was hollowing out working class lives and . . . especially on the right we needed to talk about how to re-endow ordinary people with assets and wealth. I think social conservation and economic enfranchisement is the only political offer that can now win a majority and protect us against the extremists".
I think Blond has had it with social conservatism. Its decline started with Cathy Come Home and gay marriage (which I have come round to) is the final nail in its coffin. Personally there's a lot of this kind of thing I don't mind, but I'm not so daft as to think that the stuff I don't like can be put back in its box. It can't be, and perhaps shouldn't be.
Blond goes on to talk about multiculturalism, which he thinks will work as a gambit for the Left in London, but not outside, where "it will be a huge negative for the left and will lose it elections. The left basically needs a new answer to modern capitalism that isn't welfare or taxation. There is little sign anywhere in the world of it making this intellectual leap, so . . . it is hard to see a Labour comeback (in either the long or short term).
Here I think he is bang on the money. The left's answer to our problems is tax and spend, or in Jeremy Corbyn's case tax, spend, borrow and print. My own view is that this problem is insoluble for the left, and it's not so much a case of unwillingness to make the intellectual leap Blond talks about as unawareness that the leap needs to be made at all. As it is I don't know of anyone on either left or right who has a plausible way out of the left's dilemma, which is, essentially, that we can't afford our public services in an era when people tend to live on into their 80s.
Blond believes that had EU leaders like Juncker and Schulz behaved a bit more sensibly after the vote there might have been no need for Brexit at all. These EU mandarins pretty much killed off the Remain campaign with their hostility, he says. He points out that the much vaunted Four Freedoms (including freedom of movement) are far from absolute, and that France and Germany "have progressively vetoed any real free movement in capital or services". Blond thinks that if the EU made an offer on migration he suspects Theresa May's government "may well put it to the vote, either in another referendum or more likely in a snap general election where the PM decides to argue to stay in the EU".
Personally I think Blond is in cloud cuckoo land here, both on the likelihood of the EU making a renewed offer on migration and of May's government having a change of heart. As I've written before, the EU leadership is too stolid to grasp that the key to the organisation's survival is flexibility. After all, they didn't budge on migration when the referendum was hanging over them. And anyway can you imagine the uproar in the Tory party if May did a volte face?
Blond writes that "whilst Europe understands the perils of external migration and what importing hostile minorities might mean, (the UK working class) experienced internal EU migration as directly threatening their . . . economic security. . . Britain has functioned as the European employer of last resort as the Euro and German austerity have destroyed the labour markets for so many young Europeans. But for working class Britons this has meant a direct threat to their . . . livelihoods, which is why low skilled low educated people voted so heavily to leave the EU. If you want evidence of this - try to get served by a Briton in London, it's virtually impossible. All the waiting staff are charming, degree level educated Europeans, no wonder the white working class thought there was no working future for them in such a Europe".
Amen to that. And then, this being an interview in a French paper, Blond proceeds to stick the boot in to France.
"French secularism has been wholly incapable of engaging with and integrating its Muslim population. . . Even after all the dreadful massacres and killings in France you still have the French state insisting that Islamic radicalism is down to economic inequality which is an idealogical fiction wholly without any evidential basis . . . this blinds France to the issues it must confront".
Britain, on the other hand, "is not in the state of incipient civil war . . . (our) mixed constitution allows difference to be expressed and welcomed into the British social compact whereas France . . . allows no place for . . . the development of integrated identities . . . all difference is suppressed in the name of a generic identity . . . France's political identity is too brittle to incorporate others . . ."
I'm not sure he's right that Britain's more accommodating outlook has been a good thing. It also means we've let in a lot of people whose ethos sits uneasily, to put it mildly, with ours, without making any effort to assimilate them.
And then, pertinently, Blond has this interesting passage on the absolutism of Islam, as a contrast to the mediated thought of European Jews and Christians.
"But far too much of modern Islam is dangerous, because much of the modern Islamic mainstream has rejected its mystical or mediated elements and is therefore committed . . . to a form of absolutism which paradoxically is exactly what French secularism is - hence you have a conflict of the absolutes. In Britain we . . . deny any absolutism to politics. In the end though . . . Europe must rediscover its Greek, Jewish and Christian heritage - all of which thought through the absolute and created intermediate thinking that believe we knew but could never completely know the absolute".
I agree that Britain is a less absolutist country than France (the cry of the French intellectual - "This may work in practice; but does it work in theory?!"), but I don't think we are any better placed to engage with fundamentalist Islam - our tendency to try and accommodate, to muddle along just means we are less likely to confront it head on. To our cost.
Blond goes on to deplore Conservatism's fixation with liberalism - the me-first culture. Globalism hasn't helped either, for "the Western working (and lower middle) classes have not seen any real terms wage rises . . . for a generation, it's the . . . developing world and the very very rich of the West who have massively benefited from the liberal settlement . . . Indeed, coupled with mass migration and the license that social liberalism gives to it - not only are people hit economically but also socially and culturally. Traditional centuries-long identities are repudiated and ignored, and sectarian communities are imported and set up with little or no effort at integration. So it is a great relief to see Conservative party draw a line of distinction between neo-liberal policies of both left and right and to try to set up a conservative offer that seeks to create an inclusive and mutually self and other enhancing capitalism and the social and cultural bonds that such a system needs in order to function . . . (I think he's much too optimistic about conservatism here). Yes the working classes have been abandoned since the ascension of Mrs Thatcher, even then before Thatcherism the working classes were not well served by their advocates . . ., who began through social liberalism to take apart stable working class communities and attack the extended and the nuclear family as patriarchal and outmoded . . .
And on to the City, which Blond says "is a massive British financial asset but it does not really serve Britain as well as it might, it has no patriotic capital, no interest except in the centralization and arbitrage of money, and it has no wish or incentive in decentralizing capital to invest in the regions . . . outside of London. So a break with that model of the City would be most welcome and will I think occur".
"In a time of deep insecurity people's identities and cultures need protection and fostering, and part of this does mean the need to limit unprecedented levels of migration, some which is deeply hostile to European values . . . globalisation was hollowing out working class lives and . . . especially on the right we needed to talk about how to re-endow ordinary people with assets and wealth. I think social conservation and economic enfranchisement is the only political offer that can now win a majority and protect us against the extremists".
I think Blond has had it with social conservatism. Its decline started with Cathy Come Home and gay marriage (which I have come round to) is the final nail in its coffin. Personally there's a lot of this kind of thing I don't mind, but I'm not so daft as to think that the stuff I don't like can be put back in its box. It can't be, and perhaps shouldn't be.
Blond goes on to talk about multiculturalism, which he thinks will work as a gambit for the Left in London, but not outside, where "it will be a huge negative for the left and will lose it elections. The left basically needs a new answer to modern capitalism that isn't welfare or taxation. There is little sign anywhere in the world of it making this intellectual leap, so . . . it is hard to see a Labour comeback (in either the long or short term).
Here I think he is bang on the money. The left's answer to our problems is tax and spend, or in Jeremy Corbyn's case tax, spend, borrow and print. My own view is that this problem is insoluble for the left, and it's not so much a case of unwillingness to make the intellectual leap Blond talks about as unawareness that the leap needs to be made at all. As it is I don't know of anyone on either left or right who has a plausible way out of the left's dilemma, which is, essentially, that we can't afford our public services in an era when people tend to live on into their 80s.
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