Pages

Tuesday, 24 March 2009

How Skepticism Can Be The Friend of Faith

I have never regarded "skepticism" as the necessary enemy of "faith".

Instead, I see the two as potential friends, for without skepticism how will the person of faith ever know the true extent of their faith?

Indeed, someone with genuine faith should value skepticism and be deeply concerned as to what can be established without resorting to faith.

For me, there are three relevant propositions here:

1. There are beliefs which do not require faith

These are the beliefs of the genuine skeptic and secularist, using critical reasoning and an evidence-base approach.

For example, there is a book called the Bible and it contains accounts of a person called Jesus.

2. There are beliefs which require faith to take you further than what can actually be established - to fill the gap

These are the commonest beliefs of many with faith, a sort of complementary faith. A critical and evidence-based approach will only take a believer so far, so faith is required to take them to their actual beliefs.

For example, the accounts of Jesus refer to the actual Son of God; or there "must be something there".

3. There are beliefs which contradict what can otherwise be established

These are the beliefs of those who will believe things to be true despite - and in the face of - any evidence or critical thinking. This is a sort of contrarian faith.

This is the most impressive form of faith and is rather beyond my own comprehension.

For example, the miracles described in the Bible and Saints' Lives are literally true, or there was indeed a decree that all the world be taxed, or Earth is only 6000 years old, or water retains a memory, and so on.

Curiously, such contrarian believers tend not to cherish skepticism as the means by which they can understand and measure that incredible leap they require their faith to undertake.


I would have thought, perhaps naively, that any person of faith would be keen and enthused to know what does not require faith; a few do, but most do not. And very few contrarian believers will engage with a skeptic.

Perhaps they do not take their faith that seriously?

Monday, 23 March 2009

BCA v Singh: Date Set For First Hearing


I understand the date for the High Court preliminary hearing of British Chiropractic Association v Simon Singh will be on Thursday 7 May 2009.

The hearing may take more than one day.

Sunday, 15 March 2009

BCA v Singh: The Contempt of Court Act Now Applies

There is one significant legal consequence of the English High Court ordering a preliminary hearing for the libel case brought by the British Chiropractic Association against Simon Singh.

The Contempt of Court Act 1981 will now apply in full force to all media reporting of the run up to the hearing - including publications on the internet.

The case has become effectively sub judice until the outcome of the preliminary hearing, and it will be effectively sub judice again as and when a full trial is ordered.

The Act makes it a criminal offence for any person to now publish an item "which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced".

The main purpose of "contempt of court" is ensure that the parties in a case have a fair hearing without there being distorting external pressures.

Accordingly, one of the triggers of the Act is when a hearing or trial is ordered.

This criminal offence is strict liability in that the intention of the publisher is completely irrelevant. It does not matter if the person making the publication did not intend to prejudice the trial, or even if they did.

In theory, the penalty can be up to two years in prison.

Although this offence is primarily aimed at reports which may affect jury trials (which in England means serious criminal trials and most libel trials), it also in principle covers civil trials before a judge alone (such as BCA v Singh).

It is rare - but not unknown - for there to be prosecutions in respect of jury-less civil trials.

The only defences are "innocent publication or distribution" or contemporaneous reports of public hearings or the "section 5 defence" for discussion of public affairs. Section 5 of the Act states:

"A publication made as or as part of a discussion in good faith of public affairs or other matters of general public interest is not to be treated as a contempt of court under the strict liability rule if the risk of impediment or prejudice to particular legal proceedings is merely incidental to the discussion."

The requirement of "good faith" means that it will catch a cynical attempt to circumvent the rule by dressing it up an article as a general discussion.

The key question is therefore what constitutes a publication which seriously impedes or prejudices the course of justice.

As the BCA v Singh preliminary hearing will (presumably) be before an experienced and senior judge, one would expect that the bar on what would seriously impede or prejudice a matter before him (or her) will be higher on this than it would be for a jury trial.

However, the mere existence of this rule explains why there will be now be no coverage of this case whatsoever in the mainstream media before the preliminary hearing (and I suspect not even in Private Eye ).

(That said, this case has had little mainstream media coverage so far!)

I am afraid it also explains why this Blog will now have to be more restrained in what is posted or linked to.

More broadly, however, it is interesting how one case on freedom of speech can illuminate one of the many other restrictions on free speech which exist under English law.

And that the rule supposedly covers online publications - including Blogs and message boards - highlights just how behind the law can seem to be in the internet age.

Samuel Johnson on Quackery


Back in 1755, Samuel Johnson included the following definitions in his famous Dictionary:

QUACK
n.
A boastful pretender to arts which he does not understand; a vain boastful pretender to physick; one who proclaims his own medical abilities in publick places; an artful tricking practitioner in physick.

a.
Falsely pretending, or falsely alleging, to cure diseases: as, a quack doctor; a quack medicine.


QUACKERY
n.
Mean or bad acts in physick; false pretensions to any art.


QUACKISH
a.
Boasting like a quack; trickish as a quack.


QUACKISM
n.
The practice of quackery.


QUACKSALVER
n.
One who brags of medicines or salves; a medicaster; a charlatan. The quacksalver was at first one who made, sold, or applied ointments or oils. Afterwards it denoted a kind of charlatan, a travelling quack.


How useful it would be to restore some of these words to our general vocabulary.

In particular, "Quacksalver" could be again be a convenient term for certain kinds of CAM practitioner...

Monday, 9 March 2009

BCA v Singh: The First Court Hearing Is Ordered

The English High Court has ordered that a "preliminary hearing" take place between the British Chiropractic Association and Simon Singh.

This preliminary hearing will probably take place in the next two to three months, and it will determine exactly how this case will be heard at full trial.

The High Court's rulings at this preliminary hearing will have an important impact on the nature and scope of the defence - or defences - which Simon Singh will have to mount.

The High Court's Order states:

"It is Ordered...That a preliminary hearing be listed before a Judge with a time estimate of 1 day...

"(1) to determine what defamatory meaning(s) the words complained of bear;

"(2) to determine, in the light of the ruling at (1) above, whether the words complained of made and/or contained allegations of fact or whether they constitute comment;

"(3) to decide any other issue suitable for preliminary determination by the Judge at the same hearing, as agreed by the parties."


(The High Court has also ordered that the full trial will be heard by a judge witout a jury.)

The "words complained of" in the original Guardian article were:

"The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments."

When the BCA launched their Claim, they stated that the "words complained of" had the following defamatory meaning:

"In their natural and ordinary meaning, the defamatory words...meant and were understood to mean that the [BCA]:

"(a) claims that chiropractic is effective in helping to treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is absolutely no evidence to support its claims; and

"(b) by making these claims, knowingly promotes bogus treatments.
"

Please note, however, it is for the High Court to determine the defamatory meaning(s) - if any - of any "words complained of": the Claimant's contention is just a starting point. (Generally, see my discussion of the BCA Claim here.)

Please also note that the BCA may have subsequently revised or reformulated their Claim in any "Reply", but as yet no Reply has been filed at Court.

Simon Singh in his extensive and (in my view) powerful Defence denies that the "words complained of" carry such a defamatory meaning, and even if they did (and/or if they carry any other defamatory meanings), he would rely on the defences of both fair comment and justification.

The effect of the preliminary hearing will be to determine whether Simon Singh will have to mount at the full trial the defences of both fair comment and justification, each of which will involve costly extensive preparation and expert evidence.

And remember that Simon Singh seems to be funding his own defence and, as is the rule in English civil litigation, taking the terrifying risk of having to pay the BCA's costs as well if he loses.

I suspect that the BCA is hoping either to force Simon Singh to have to run both defences, or to run the defence of justification alone. Notoriously, it is in the general nature of English libel law that any defence of factual justification is always harder (and more costly) for the defendant to prove.

I also suspect that the preferred outcome for Simon Singh will be that the "words complained of" are held to have no defamatory meaning at all or that they are held to be comment alone, meaning that he only has to prove that it was a "fair comment" in respect of the material before him.

However, even if the BCA prevails at this preliminary hearing, and so forces Simon Singh to run with both defences, his Defence demonstrates that he is actually well placed to meet such a challenge; it will just be a lot more work and more expensive.

Sunday, 8 March 2009

Watchmen and Politics: a film and book review

"For as all Action is, by its nature, to be figured as extended in breadth and in depth, as well as in length...so all Narrative is, by its nature, of only one dimension; only travels forward towards one, or towards successive points: Narrative is linear, Action is solid."

Thomas Carlyle, On History (1830)

Carlyle, aged 35 in 1830, was soon to embark on The French Revolution, a huge and sprawling book, with multiple narratives, literary and dramatic devices, and with fragmented and interconnecting stories.

For me, The French Revolution is remarkably similar to Watchmen.

Carlyle described the French Revolution as vivid action and not as a linear narrative; Carlyle also depicted the revolutionary leaders as all having the distinctive and disturbed personalities required for their roles, constantly capable of committing or tolerating horrific violence for some supposed greater good.

This history, published in 1837, shook the literary circles of early Victorian England, went on to deeply enchant Dickens and Twain, and established Carlyle as perhaps the greatest historian of his time.

And Carlyle and his readers would no doubt have regarded The French Revolution as unfilmable; it was simply not a linear story.

*Spoliers follow*



Alan Moore's masterpiece Watchmen (1986-87) was the product of his early 30s. The graphic novel has long been regarded by him, and others, as unfilmable.

Now that a film has appeared (which I am afraid rather proves Moore to be correct), I want to examine the Watchmen afresh, and review the film, and set out what makes it, for me, one of the greatest English literary works of the twentieth century.

However, one of the least interesting parts of Watchmen as a graphic novel is the plot. Like that other skilled creator of complex literary situations, E. M. Forster, one can imagine Moore, recognising with reluctance that "yes - oh dear yes - the novel tells a story".

By the time the graphic novel gets to the concluding mock alien invasion, with a bemusing giant squid-like monster plastered over New York, the usual reader is far more concerned with the characters and what has happened to them over the previous twenty to forty years.

(In passing, one merit of the film is that the modified ending is actually more satisfying: there is no squid.)

By the conclusion of the graphic novel, Moore has set off a number of narratives: the 1940s Minutemen, the start of the modern Watchmen, Vietnam, the era of the Keene Act, as well as the (then) present day 1980s. The narratives are interlinked by artefacts, such as group pictures or statues, as well as by the simple poses of characters or views of a building in a frame which carry over to the following frame, but in a different time and place. The whole book interconnects. In a conscious double-meaning, the story is as intricate as watchwork itself.

So perfectly is this elaborate structure created that Moore's addition of a pirate story sub-plot and numerous written documents all fit neatly in.

Against all this complexity, a simple linear film has no real chance. It certainly shouldn't try to follow the story as it unfolds in the graphic novel. In any case, almost everyone who will want to see the film at the cinema knows that Ozymandias is the culprit; his exposure at the end is of no great dramatic value.

Indeed, I suspect the film may have worked better if it followed the lead of another of Moore's great works From Hell (my personal favourite), and was just open about the villain's identity from the beginning; or it could have told the story as a straight saga, without flashbacks, starting with the Minutemen, through the 1960s and Vietnam, to the time of Comedian's murder and beyond. Either approach, even if it would have been heretical to the core fans, could have had a better chance of succeeding than the slavish devotion to the graphic novel.

The film, however, is not that bad. It is perhaps strongest with the visuals: the dramatisations, often with CGI, of key incidents are a delight. A fan of the graphic novel can sit back and enjoy a sequence of animated postcards from the book, like a row of so many Hogwarts paintings.

It is also strong in what fascinates me most about Watchmen, which is the interplay of power and personality.

The recurring question, always incompletely written or obscured on the pages of the graphic novel, is who watches the Watchmen?

It is a question which Moore doesn't directly answer.

In one sense, nobody is watching them. The costumed heroes are routinely unleadable and incapable of real supervision. The original Minutemen fall apart as a group, with allegations, a rape, and other physical violence. They exist only as a photoshoot.

The Watchmen also only really exist in name form and as a group photograph. As a collective, they have no political or organisational significance whatsoever. Even if an individual Watchman needs to be watched, no one need trouble watching the Watchmen as a whole.

That is why the Keene Act is, in my view, one of the most ineffective pieces of legislation in fiction. It purports to prohibit masked vigilantism. Two of the "heroes" carry on anyway, but working for the government; Rorschach carries on without sanction; and Ozymandias has already retired, as have - in effect - all the surviving Minutemen (with poor drunk Mothman in the madhouse). The only two people caught by the Act - Nite Owl II and Silk Spectre II - are so limp they hardly needed so profound a legislative nudge to stop their vigilantism. One suspects they would have happily acceded to a polite request.

But if the Watchmen are not an interesting as a political group, then most of the Watchmen are incredible political studies of the individual. Four Watchmen in particular can be seen as politicians:

- Ozymandias believes his better vision for the world should prevail, regardless of the ethics and the consequences;

- in contrast, Dr Manhatten grasps the futility of the world's affairs and, even though he has true power, he instead prefers inaction and quietism, allowing cruelty to continue around him;

- the Comedian is the ultimate cynical ironist, adept at exploiting raw power and indeed terror, accompanied often with lurid patriotic (and fetish) paraphernalia; and

- Rorschach - the true Robespierre incorruptible - is incapable of true compromise, always seeking to dominate his immediate environments on his own terms (in prison he observes correctly "None of you understand. I'm not locked up in here with you, you're locked up in here with me").

Each of these figures could easily be a revolutionary leader emerging from a profound crisis. And each shows how power either corrupts, or will not be used well. None of them can or would accept any restraint or supervision. None of these Watchmen want to be watched; but we know they each need to be.

For me, the Watchmen is a wonderful collection of psychological profiles of the individuals who either have - or want - power over others in a non-linear and complex world. In this, Watchmen is similar to some of Moore's other great works, V for Vendetta, The Killing Joke, and From Hell.

Moore, like Carlyle - and also like Orwell with O'Brien in 1984 and Napoleon in Animal Farm, can get into and portray the minds of those who seek power over others.

And here I think the film does well. In particular, Rorschach is played brilliantly by Jackie Earle Haley; almost impossibly, he makes Rorschach seem scarier without the mask than with it; that particular prison is dominated. Ozymandias is shown to be an entirely plausible smiling arrogant corporate-leading creep. The (hitherto unknown) actors playing all the main roles show us the sort of people who would actually end up as masked vigilantes (or, with Dr Manhattan, as one who has greatness thrust upon him). In a film full of expensive CGI, it is really heartening to see so much good fine acting.

The film has faults in additon to the lack of a dramatic exposure of the villain: the Apocalypse Now sequence is embarrassing; the fight scenes are identical and everyone has the same fighting style; most of the funny lines fall flat; and the needless sex-scene was excruciating for every geek in the cinema.

But it was a film which would never easily succeed.

What we do have is an extremely attractive and well-made gloss on the graphic novel, bringing certain situations and characters more fully and satisfyingly into view. And, as with the best literary criticism, and with any good cover version, it makes you go back and enjoy the original all the more.

On the Tory Attitude to the Human Rights Act

I recently criticised the current disdain of the UK Conservative Party for the Human Rights Act, see here.

In my view, one unfortunate feature of modern British politics is that the Conservative Party is not really engaged with the practicalities of human rights and civil liberties.

Two Conservatives have now kindly responded to my critical post, and their thought-provoking comments warrant a considered response.


The view of Evan Price

The Conservative lawyer Evan Price stated (and I quote as far as relevant):

"The party's position is to repeal the HRA and replace it with a Bill of Rights. At the same time, there is a commitment to remain a signatory of the ECHR and so be bound by the Convention.

"I understand that you want the party to build on the HRA; as I understand it, to a significant degree that is exactly what is proposed. The replacement Bill of Rights is intended to retain the ability of the courts here to adjudicate on issues relating to the Convention rights without the baggage that accompanies the HRA."


Mr Price deserves respect; his website shows that he has an informed and serious interest in the legal context of human rights and civil liberties, and - to his credit - he spoke on such topics at the Cardiff event of the recent Convention on Modern Liberty.

So how will this new Bill of Rights actually work?

Presumably it will provide (a) a legal mechanism to enforce substantive rights, and (b) the substantive rights themselves.


The possible mechanisms of the "Bill of Rights"

Starting with the possible mechanisms for enforcement, the "Bill of Rights" would have to have one of the following legal effects:

1. The Bill of Rights will have no legal effect

The "Bill of Rights" will be merely a normative or declaratory document, and it would not make any legal difference in any given situation.

I assume this is not what is intended.

2. The Bill of Rights can lead to UK statutes being disapplied by the courts when the statutes are contrary to the Bill of Rights

This is the US model, where courts can strike down legislation contrary to the constitution.

This is (just about) possible in the UK as a matter of law: for example, reliance on the the European Communities Act 1972 can lead to statutes and statutory instruments being disapplied.

However, I rather expect this is not what the Conservatives, with their emotional attachment to the supremacy of parliamentary legislation, will be seeking.

Indeed, one can imagine the stark horror of a typical Conservative when those pesky unelected "activist judges" strike down any primary legislation because of fundamental rights.

3. The Bill of Rights will force courts to interpret statutes in accordance with substantive rights

But, er, this is already provided for under section 3 of the HRA. One of the merits of the HRA is the fact that it forces the Court to interpret legislation in a manner compliant with fundamental rights, but the court cannot disregard the legislation altogether.

4. The Bill of Rights will make it unlawful for public bodies to act contrary to substantive rights

Er...again this is what the HRA already provides: section 6, HRA. It is outside the vires of a public body to breach substantive rights.

5. The Bill of Rights will encourage and enable the courts to interpret the common law in accordance with the substantive rights.

Er...yet again, this is what is already happening: mainly in the field of privacy and confidentiality. Ask Max Mosley.

The simple and inescapable fact is that the proposed Bill of Rights would have to have a mechanism which is either of no legal effect, or anathema to Tory principles, or one already contained in the HRA.


Substantive Rights

We can now move on the substantive rights which are to be enforced. This will help us see if the Bill of Rights proposal has any other merit.

Mr Price tells us the substantive rights will be the very same "Convention rights" as under ECHR and enforceable through the HRA.

(One may thereby wonder what the point is at all of the proposed Bill of Rights.)

However, it could be that the Bill of Rights will have a different "take" on the Convention Rights. If so, one needs to understand the nature of Convention Rights.

Importantly, most of these are "qualified" rights - fair trial, privacy, free expression, property, religion, assembly, educational choice, free elections, etc - which can be interfered with by the State, but only if the interference has a lawful basis and proportionate objective. Else the Convention Rights are breached.

Unless the Conservatives want to either (a) drop one of these substantive qualified rights (and which one would they dare choose?) or (b) convert some of these qualified rights into absolute rights (hardly likely), then it is difficult to see why there should be different rights in a Bill of Rights.

(There are also two absolute rights in the ECHR - to life and against torture - which cannot be interfered with at all by the State. But presumably the object of the Conservative Bill of Rights is not to make either of these into qualified rights.)


Rejecting the Bill of Rights proposal

So, in terms of both the mechanism and the substantive Convention rights, there really seems no point whatsoever to replace the HRA with an entirely "new" Bill of Rights.

However, with this Bill of Rights nearly ten years of domestic jurisprudence on how the ECHR works in the detailed context of public law, common law, and statutory interpretation (the "baggage" to which I assume Mr Price refers) will (somehow) be put to one side, creating new and wide-ranging uncertainties as to the correct legal position in a range of areas, from family law to copyright law.

In my view, it would be far preferable that the Conservatives finally "get over it" and accept the HRA (just as New Labour accepted the trade union reforms).

An incoming Conservative government will have far more important legislative tasks than repealing one piece of constitutional legislation and replacing it with another which will either have no effect, the same effect, or effects which they would quickly find unwelcome.


The view of Gavin Ayling

Another Conservative, Gavin Ayling stated (my emphasis added):

"One of the initial Conservative objections to the Human Rights Act 1998 was that it was the first piece of legislation that gave Rights - by implication suggesting that anything not covered is fair game for the State.

"Surely the repeal of positive legislation is the right thing - our rights and freedoms had always previously been to do whatever we pleased unless it was illegal.

"Not that I wouldn't repeal some other laws, but those have not been nullified by the HRA98 so why support it?"


Mr Ayling goes directly to the heart of the matter: are freedoms to be protected in a positive manner? Or are they instead of a residual nature: one is free to do whatever is not illegal?

I used to have the latter view myself, but I have realised that it simply does not work well in English law and is actually rather dangerous.

The "implication" is actually the stark opposite than the one which Mr Ayling draws.

The key case for me was Malone v Metropolitan Commissioner of Police from 1979. It is a case which undermined completely the claims of "one is free to do whatever is not illegal" approach.

In Malone the court held that is it was perfectly open to the police to wiretap and bug whoever they wanted whenever they wanted, as indeed could any other State body.

Why? Because the police and the State were also free to do whatever is not illegal.

That the UK State can do anything it wants, however contrary to the integrity and autonomy of the individual, means to me that it was imperative that the individual has enforceable rights. Without such "positive legislation" the individual will always lose the unequal battle against the State.


The way forward

There are incredible challenges ahead for civil liberties and human rights against the evermore intrusive State, collecting and sharing (and losing) data, invading privacy, arresting and detaining at will, seeking constantly to restrict free expression.

The Leviathan of the State is becoming evermore reckless, hungry, and demanding.

The way forward is surely to take the weapons provided by the Human Rights Act and the ECHR more seriously, not less.

A Conservative government should entrench Convention rights in every police force, Whitehall department, and local authority.

Most of all, proportionality needs to be placed at the centre of policy and decision making: any intereference with a person's Convention right should be no more than strictly necessary.

The HRA is, in my view, the best way of actually doing this.

To repeal the HRA seems to me to be more likely to take from the Law its only current way to rope down the Leviathan.

In this respect, the possible tissue paper of an alternative Bill of Rights will be of no help at all.

And Mr Ayling's implied (if unintended) wish to allow the Leviathan to do whatever he wants would clearly be an unwelcome hindrance
.

I would be delighted if Mr Price and Mr Ayling, and any other Conservative, can take this debate further forward. It is a highly important debate for Conservatives to have.

And, even if I am wrong in supporting the Human Rights Act, a Conservative Party which takes the practicalities of human rights and civil liberties seriously would be an extremely welcome feature of the UK polity.

Friday, 6 March 2009

This weekend and next week...

This weekend, I hope to blog on the politics of Watchmen (including a review of the film) and on the UK Conservative Party's misconceived proposal for a "Bill of Rights".

Next week will include a blog post containing significant news on the British Chiropractic Association v Simon Singh case.

Thursday, 5 March 2009

Faith and Markets

Those brought up, like me, with the classical model of liberal economics often attribute to the "Market" the three qualities which those in less secular times attibuted to God.

Markets were omnipotent (all powerful), omniscient (all knowing), and omnibenevolent (all good).

(Those on the left often attributed the very same qualities to that other deity, the "State".)

The ongoing economic crisis is a good moment to test this faith in the Market deity.

The Market is certainly all powerful; that is if one takes the view that the credit crunch is the Market's corrective response to unsustainable finanicial and banking practices.

As the late Sir Alan Walters often pointed out, one cannot buck the market.

(I must admit, however, that to say that the Market is always correct in the long-term is to make almost a circular statement: how would one actually tell the difference?)

The Market also remains a generally efficient way of allocating resources and setting prices according to diffused information. In that way, the Market is - by this aggregation of knowedge held by each market participant - all-knowing, though this is perhaps not to say very much.

But where one's faith can be most tested, is whether the Market is for the greater good. Here on cannot ignore the dictum of Adam Smith:

"Every individual...generally, indeed, neither intends to promote the public interest, nor knows how much he is promoting it...and by directing that industry in such a manner as its produce may be of the greatest value, he intends only his own gain, and he is in this, as in many other cases, led by an invisible hand to promote an end which was no part of his intention." [Emphasis added.]

That Smith's "invisible hand" would ensure that each individual's pursuit of their own self-interest would, by necessary implication, lead to the greater good is what makes the otherwise terrifyingly powerful Market diety into a rather nice god.

However, the individual banks and financial institutions which adopted extreme practices for their own interests have, when taken altogether, put at severe risk the very framework in which a capitalist market economy can operate.

It is as if the invisible hand has let us all go and started slapping us instead.

One really must now have doubts that the Market is omnibenevolent, even if it retains the other two usual attributes.

This is not to mean that that other diety, the State, should now be worshipped. The last few decades have seen enough public sector and regulatory failures to deter one from that other old religion.

Perhaps we should instead move on from being beholden to either diety? For neither, by themselves, seem able to achieve the public good.

Tuesday, 3 March 2009

Are Big PFI Bailouts Next?

The UK government's use and abuse of the Private Finance Initiative (PFI) has long been an incredible disaster waiting to happen.

And now it is happening - see here.

There will be taxpayer bailouts for the PFI sector, benefiting the financiers just like for the banking sector. For, as with the banks, the underlying projects involved cannot be allowed to fail.

The PFI deals for schools, hospitals, and other infrastructure, can seem almost plausible in theory. The idea is that the private sector not only builds but also maintains the project for 30 or so years in return for regular government payments over the period.

It is "buy now, pay over a far longer period".

The "risk" supposedly is with the private sector; if the projects are not built or properly maintained, the public sector (it is claimed) can clawback money from the private firms involved.

In some ways, this approach was attractive: one only has to see the grand Victorian and Edwardian school buildings, crumbling through lack of maintenance, or the shoddy quickly-built concrete structures of the 1950s and 1960s (such as my own comprehensive school), to realise that there had not been enough emphasis on the "whole-life" upkeep of such buildings.

But this is not how PFI has worked out in practice.

The contracts between the public and private sectors were not sufficiently robust, primarily because the civil servants and government lawyers involved didn't have a clue what they were doing in their discussions with the various City bastards and sharks on the other sides of the table. And even if the contracts were ever robust, there was little real expertise in practical contract management.

The only terms of the contracts which were usually precise and easily enforceable were the financial provisions in favour of the contractor.

Accordingly, PFI deals have for a decade or so been treated as mere money making machines. And this is where the looming problems begin.

Only a small part of the public sector's payments really go to maintenance of the buildings, or even to repayment of the original capital costs of the project.

In many cases the payments instead go to incredibly elaborate securitarisation. In other cases, the contractors used the payments as the basis for borrowing in the capital markets. In either case, the long-term financial deals entered into by the public sector provides safe - almost guaranteed - income which can be borrowed against again and again by a web of financial institutions far divorced from the "schools'n'hosptials".

And all this suited the government as, infamously, PFI projects were off the public balance sheet. It didn't count against public borrowing.

The government "delivered" the infrastructure projects to the voters, but at the real cost of providing a basis for complex and multiplying financial transactions.

Now, in the era of the credit crunch and margin squeeze, this elaborate securitisation is beginning to strain.

And it will be the companies at the bottom of the chain, those charged actually with building and maintaining the "schools'n'hospitals", which will feel the most financial pain, as they have key outgoings in two directions.

Just as the overstretched banks have imploded, so now will some major PFI providers. It appears from the BBC that this is already happening.

Some of us familiar with government contracts saw this coming a few months ago, and it is sad that it has come to pass.

The reality was that the "risk" never was properly transferred to the private sector under PFI. The projects were always such that they would never be allowed to fail (school and hospital closures anyone?) and the contracts were usually too one-sided for any such risk allocation to be enforceable anyway.

So, yet again, the financial sector will have the government - and the taxpayer - squarely over a barrel. There is in store extraordinarily expensive bailouts which will primarily benefit financial institutions and bankers. Most of these will not be publicised because of the confidentiality provisions of the contracts themselves.

PFI was always - and will now be seen to be - a perhaps well-intentioned but highly misconceived political ploy.

Taking PFI along with the botched banking regulation reforms, the 10 pence tax fiasco, the utter mess of tax credits, the chaotic Tube finance and maintenance deals, "Britishness", "No More Boom and Bust", the forced LloydsTSB/HBOS merger, and so on, all reveal one now undeniable truth about the one man behind each of them.

Gordon Brown is simply the worst policy-maker of any politician in recent history.

And, to adapt Neil Kinnock, PFI will result in the grotesque spectacle of a Labour government - a Labour government - throwing ever-greater amounts of money at City financiers, all in the name of "schools'n'hospitals".

In Today's Private Eye

There are a couple of articles of interest in today's Private Eye (No 1231) for those who follow this Blog.

"Ratbiter" discusses the BCA v Singh and Rath v Goldacre libel cases, along with Jeremy Sherr's threats to bring a libel claim, in an excellent piece on the sad propensity of some CAM practitioners to sue when faced with criticism (page 7).

"In the Back" discusses the exposure by the Court of Appeal of the seeming abuse of the "Tony Martin" defence by police, which this Blog first reported on early last week (page 26).

Monday, 2 March 2009

On Conservatives and Civil Liberties

Sometimes it's hard to be a Conservative voter; giving all your vote to just one party.

What makes it most difficult is their present attitude to civil liberties and human rights. They currently just do not "get it".

Indeed, I despair when the topic comes up at any Conservative meeting at which I am present. "Repeal the Human Rights Act!" will say one cheerful activist; "Leave the ECHR!" will growl a second; "SOUND!" will be affirmed by the delighted chap at the back.

And so, living down to Mill's description of the Tories as the "Stupid Party", the Conservative Party is saddled with the daft commitment to repeal the Human Rights Act.

One is reminded of the eighteenth century jibe, "there are 40,000 stout fellows ready to fight to the death popery without knowing whether popery is a man or a horse."

The Human Rights Act is to be repealed by those not knowing what it says or how it works.

I had pinned my hopes on Dominic Grieve, now the shadow justice secretary (and previously shadow home secretary). Here is a Tory lawyer who not only cared for civil liberties and human rights, but one who had a practical grasp of how such concerns can be given effect through legal instruments. He actually understood the merits of the Human Rights Act 1998, which implements the ECHR into English law.

This legal and constitutional insight meant that Grieve differs from the other Tories who have similar concerns. For example, David Davis - for whom I have a lot of time and admiration - can only resort to "Magna Carta" and "Habeas Corpus". Heady and sentimental, but hardly the stuff of practical human rights or civil liberties.

But Grieve has had to buckle. Faced with his party's hostility to the Human Rights Act and the ECHR, he has come up with an alternative wheeze, see here.

Somehow, someway the Conservatives are going to enact primary legilsation which will allow them to repeal other primary legislation which affects fundamental rights. This can be done, but it really is not the best thing to do.

If such legislation requires repeal it appears to me that should be done by means of the usual parliamentary process, and subject to scrutiny, and not by the fiat of a minister or an unscrutinized statutory instrument.

But the underlying problem is the Conservatives' current refusal to accept or even understand the Human Rights Act or the ECHR. This is a shame as, to my mind, both are actually rather Tory.

In fact, the ECHR was in part formulated by the great Tory lawyer Sir David Maxwell-Fyfe (a hero of mine, who destroyed Goering by cross-examination at Nuremberg).

Almost all of the rights provided for under the ECHR - privacy, freedom of expression, etc - are "qualified rights", meaning that the courts has to balance the right against legitimate exceptions; rights against responsiblities.

And the Human Rights Act has legal bite in two admirable ways: first, it forces the courts to respect primary legislation, which is to be interpreted in a way complaint with the ECHR, but never ignored; second, public authorites have to abide by the ECHR in the exercise of their powers.

I would have thought respect for primary legislation and limiting the powers of public bodies would be attractive to Tories.

The Human Rights Act should be built on, not repealed. The party of Rab Butler should always believe politics to be the art of the practical.

But to deal practically with the increasing concerns for human rights requires that the party now accept the principles of the Human Rights Act and the ECHR, and then it should seek to work to further entrench human rights and civil liberties in English law.

Instead the new shadow Home Secretary, who replaced Grieve, just calls for more wrongs and fewer rights.

Nick Cohen on my proposal for libel reform.

The leading British journalist Nick Cohen discusses my recent proposal for libel reform
here.

Sunday, 1 March 2009

On the Goodwin Pension

It is astonishing how British politicians and media have latched on to the pension arrangements of Sir Fred Goodwin, the former chief executive of the Royal Bank of Scotland.

Goodwin does indeed seem ghastly, the sort of domineering boss all too common in commercial life. One can easily imagine the hapless middle managers threatening each other with "Sir Fred said this" as the bank lurched onwards into jeopardy.

But his pension is merely an ugly pebble on a beach of obscenity. Removing or reducing his contractual entitlements will have no real effect on RBS or the taxpayer. It would be nothing more than a gesture, but with a possible implication that the government will be seen to not respect contractual obligations. That is not a wise signal to risk giving.

The current crisis is complex and, to adapt Eliot, politicians and pundits cannot bear very much complexity. So it is personalised, and a scapegoat makes it all so simple.

For the government it is a convenient distraction; for the media it is a good story. Ultimately, however, it is irrelevant to the issues which they should be focusing on.

The hapless conniving RBS middle managers may (hopefully) have now got their desserts. It is sad if they are to be replaced by hapless commentators telling each other that "Sir Fred shouldn't do that" as the wider economy itself lurches onwards into deeper jeopardy.