Owen Jones and this democracy thing again

Owen Jones has decided to take on this Transatlantic Trade and Investment Partnership thing. You know, the treaty that says that governments must live up to the contracts they sign, further, that it won’t be the courts controlled by governments that decide whether they have or not?

Marshaling his arguments Jones tells us that:

And if our political elite won’t budge, then it’s up to the rest of us to organise. Criticisms of the EU have been surrendered to the xenophobic right for too long: a democratic People’s Europe has to be built. But TTIP is also a reminder of the constant threat from those in power. When they steal chunks of our democracy away from us, we may find that it is far from easy to win them back.

The argument is not that the TTIP or that arbitration set up are themselves anti-democratic. Rather, that they might curb the ability of the electorate to vote for something in the future. On the grounds that a government might have signed a contract. For example, a contract that asks a private company to provide some medical service or other. That contract stating that if the contract is cancelled then there will be some compensation to be paid. Jones and his ilk are arguing that the payment of such compensation will make renationalisation more expensive and that thus this is a denial of democracy.

Hmm, well, we might recall this also said by Jones:

The Aids crisis was building; more than half the population believed homosexuality was “always wrong”, peaking at 64% in 1987 when just 11% opted for “not wrong at all”; and later that decade the homophobic legislation, section 28, was introduced.

Jones is, of course, against that section 28 stuff even though it was obviously democratic. He opposes it on the grounds that some things are more important than the will of the majority. But once that principle has been conceded we’ve then got to decide what are those things that are more important than that majority will?

And the TTIP is saying, essentially, that the rule of law is more important than whatever it is the howling mob wants this week. That’s certainly something that we would agree with around here.

There really are areas of life that have to be protected from democracy. You can argue, to your taste, as to whether the teaching about homosexuality in schools, the holding of governments to contracts they have freely signed, are such or not. But once we’ve the basic principle, that democracy is not the sole and over riding factor then we’ve got to have all of those arguments individually.

Well, yes, this is rather the point about fees for filing tribunal claims

How lovely to see public policy working well for once:

The number of aggrieved workers bringing sex discrimination claims to employment tribunals has tumbled by 90 per cent in a year since claimants were made to pay a fee.

It appears that the prospect of forking out in advance – and losing the money if their case fails – is deterring many of those who may be tempted to use a tribunal to make their employer pay compensation.

But Labour business spokesman Chuka Umunna has promised to abolish the fees, claiming they are unfair.

Chuka, as ever, is missing the point here. The aim and purpose of the fee is to reduce the number of claims. The fee has been instituted, the number of claims has dropped: public policy is actually working. Would that everything done by government worked so well.

The point is not though to make sure that those cruelly done down by t’evil capitalist plutocrats have no recourse: discrimination law still exists and still operates in the normal manner. Those with a good case will happily pay the small fee, those with a frivolous one won’t. The impact of this modest fee therefore tells us something most interesting: the number of former claims that were indeed frivolous, or at least highly unlikely to succeed. But if trying it on costs nothing then why not do so?

There’s an interesting parallel here with another thing that the British courts get right. In, say, a patent case, the loser pays everyone’s court costs and legal fees. In a similar US case the each side pays its own costs, whatever the outcome of the case (except in truly, truly, egregious cases). It costs perhaps $500 to file a suit alleging patent infringement and up to $2 million just to prepare the defence for a trial. The incentives there are obviously for many trivial suits to be filed in the hopes of getting a bit of cash as a settlement to bugger off and stop bothering everyone.

It’s worth noting that the US courts are full of patent troll cases: the UK courts have nary a one.

You know, the first thing everyone should know about economics? Incentives matter.

When proven cases of real sex discrimination bring (righteous) damages of tens to hundreds of thousands of pounds the idea of a small fee as a gatekeeper to deter frivolous cases seems both sensible and not a barrier to those real cases moving into the justice system.

It’s a good policy but it’s not enough

Around here we welcome good policy whoever suggests it. So, given that this is a good policy we welcome it but would also insist that it doesn’t go far enough:

 The Liberal Democrats are looking at the decriminalisation of all drugs for personal use and allowing cannabis to be sold on the open market.

Launching his party’s draft election manifesto, Nick Clegg, the deputy prime minister, said the party would consider such options after they were advocated in a policy paper due to be discussed at the Lib Dem conference next month.

The paper said the Lib Dems “will adopt the model used in Portugal, where those who possess drugs for personal use will be diverted into other services”. The southern European country decriminalised personal possession of all drugs in 2000.

The document also said the party “welcomes the establishment of a regulated cannabis market in Uruguay, Colorado and Washington state”.

That we should end the entirely ludicrous policy of jailing people for ingesting their substance of choice into their own bodies is obvious. Government should no more be regulating this than it should be regulating the ingestion of cake, apples and pan haggerty (not that that stops the usual fruits and nuts from arguing that it should of course).

However, simple decriminalisation is not a sufficient policy: for markets do of course require regulation. No, regulation is not “what government does”, it’s entirely possible for markets to self-regulate. However, for them to do so it’s necessary for there to be (in this case at least) brands.

For one of the great problems with drugs being illegal is that no one ever quite knows what they’re taking. That heroin might be cut with icing sugar in which case little harm is done. It might be cut with rat poison in which harm is done: and they might have run out of both and not cut it at all in which case you’ll be dead soon after injecting. The same is true of all of the other drugs that people like to take (that they like to take them being, obviously, the reason why they should be allowed to take them, it’s their life, their body, not yours). Inconsistent quality.

And we saw this before, with the industrialisation of food back in the 19th century. Yes, from the 1870s on (with some very small baby steps a couple of decades earlier) we did have a series of laws about what could be put into what form of food. Alum into bread, that sort of thing. However, by the time the laws came into being the regulation was already happening. By people branding their products so that people could decide for themselves who they trusted to provide a decent and consistent quality. This was in fact the original purpose of manufacturer branding: not to feed excessive consumption but to identify those feeds that wouldn’t kill you. As you would know by still being alive a week after you’d had your last portion of that nourishing beef broth from Rat and Catcher’s Patent Manufactory.

That is, to regulate product quality, something we desperately desire in this field of currently illegal drugs, we need one of two things. Either legislation providing a testing system (something that’s simply not going to happen) or freedom of supply as well as consumption. For only with that freedom of supply will there be that branding and thus regulation of quality that we need.

Decriminalisation is better than the current situation (and your humble author does live in Portugal and has done throughout the decriminalisation process) but it’s not enough, we need to move to full legality. Controlled distribution, fine, taxed, fine, limited, fine, but regulation of quality must be done in some manner. And the best way is for producers to compete on quality just as was done 160 years ago with food.

Do we need Children’s Services?

Of course our children need care and protection from abuse. The question is whether the responsible bureaucracies give value for money, or indeed provide that care and protection at all. Following each scandal, we are told that no one is to blame: the problem is systemic. Then we are told that the bureaucracies will work better together in the future. Then history repeats itself. Rotherham should be a wake up call.

In fact, the problem really is systemic and it needs a systems solution. It is not a question of money. From 2001 to 2010 English and Welsh councils’ child social care expenditure nearly doubled from £4.7bn to £8.6bn at 2010 prices. Would anyone suggest that the quality and extent of child care has doubled?

Of course the problem is hugely complex and there is no single, simple solution but at the root is the excess of bodies paddling in the same swamp: Local Authority children’s services, schools, doctors and hospitals, police and charities such as Barnardo’s and the NSPCC. Each case is like Gerard Hoffnung’s performance by solo violin and massed conductors.

Serious child abuse of any form is a crime. Where a teacher, doctor or any social worker believes that a crime may have been committed, or may still be in progress, then that should be reported to the police like any other possible crime. The police should investigate without fear, favour, concerns for being branded racist or other politically correct excuses for doing nothing – or passing the buck to social services.

The bigger question is then whether children’s services are necessary at all. If the current Local Authority bureaucracies did not exist, what would we put in their place?

Rotherham demands a systemic solution and that in turn demands we start with a blank page.

Clearly we need the youth justice system and adoption facilities though those are also offered by the voluntary sector, e.g. Barnardo’s. Given Local Authorities’ manifest incompetence in adoption maybe that should be turned over to the voluntary sector and perhaps arrangements for fostering too. If taxpayer value would be improved, as it is being for schools, by channelling taxpayer funding through the voluntary sector, then why not? Equally well if something like the existing services can be radically rebuilt to give our children the protection they need, then so be it. But if we just go on tinkering and adding more boxes to tick, more Rotherhams will follow.

Boris is right. Tinkering with the presumption of innocence is, unfortunately, a minor change in the law

Boris Johnson has called for a change in the law. He wants to shift the burden of proof on those accused of travelling to Iraq and Syria to join ISIS. No longer will the prosecution be required to prove that they intended to join ISIS. Rather the accused will have to prove that they travelled there for innocent purposes.

There has been near universal condemnation of Boris’s proposals. The Prime Minister called it a knee-jerk reaction. Nick Clegg was not a big fan either. In addition to rejecting his proposals commentators on both the left and the right have taken issue with Boris’s statement that this was a “minor change” in the law. They argued that instead it was an attack on this hallowed principle that is the presumption of innocence. The fact Boris did not realise that was further proof that he is unfit to become Prime Minister.

However, Boris is completely right. Not about the substantive proposal but about the fact it represents a minor change in the law. The fact of the matter is that the presumption of innocence has in the past few decades been severely eroded. In 1935 we were told by the Lord Chancellor Viscount Sankey that “throughout the web of English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt” [1]. There were only two exceptions: (i) the defence of insanity and (ii) statutory exceptions.

How often did Parliament by statute make exceptions to this golden thread? Andrew Ashworth and Meredith Blake attempted to find out in 1996 [2]. They look at how many of the offences triable in Crown Courts derogated from the presumption of innocence. It was not 5%, 10% or 20%. Out of 540 offences, 219 involved some form of departure from the presumption of innocence. That’s just over 40%! In the Magistrates’ Courts the position was hardly better. There, the defendant bears the burden of proving “any exception, exemption, proviso, excuse or qualification” [3]. At this point one can ask whether the exception has swallowed the rule. So Boris was not wrong when he described it as a minor change in the law.

The situation has not really gotten better since 1996. Parliament continues to reverse the burden of proof on a number of offences. In one respect, however, the situation has gotten better. Previously, if Parliament imposed a reverse burden of proof the courts would just have to apply it. However, following the coming into force of the Human Rights Act, the courts have been able to de facto nullify some of those reverse burdens.

For example in R v Lambert [2001] UKHL 37, the House of Lords was considering a provision of the Misuse of Drugs Act which required a defendant found in possession of a package containing drugs to prove that he did not know that it contained drugs. If the defendant failed to discharge that burden he would be found guilty of possession of drugs. The House of Lords held that this was an unjustfied infringement of the presumption of innocence. So, this provision was read as merely requiring the defendant to adduce evidence that he did not know the package contained drugs. The burden would then be on the prosecution to prove beyond reasonable doubt that this evidence was untrue.

Those wanting to repeal the Human Rights Act (and withdrawn from the European Convention on Human Rights), whilst still adhering to the presumption of innocence, should think carefully about that.

In the meantime the outrage sparked by Boris’s comments should be directed to adopting the proposal the Criminal Law Revision Committee made in 1972: that there should not be reverse burdens in English criminal law [4].

1 Woolmington v DPP [1935] AC 462 at 481

2 “The Presumption of Innocence in English Criminal Law” [1996] Criminal Law Review 306-317

3 Section 101 Magistrates’ Courts Act 1981

4 Criminal Law Revision Committee, Eleventh Report, Evidence (General), Command Paper 4991 of 1972, para 140

Rajiv Shah is a PhD student in Law at the University of Cambridge.