A reminder to Bill of Rights drafters: all we need is one right

“It’s not just the European Union that needs sorting out,” UK Prime Minister David Cameron told his Party Conference this week, “it’s the European Court of Human Rights.” This is not the first time he has said that: he said it to the judges’ faces a couple of years back, at the ECHR’s gleaming headquarters in leafy Strasbourg. They were not overly impressed. But his audience this week thinks he is spot on, and most people in the UK probably agree.

The ECHR is not an EU body but emerged out of the postwar European Convention on Human Rights. In other words, no Parliament agreed to it, no British citizen voted for it, no Prime Minister signed a treaty authorizing its power. Like Topsy, it ‘just growed.’

We are all in favour of human rights, of course, but countries disagree on exactly what those rights should be and how they should be enforced. The UK, in particular, has a very different legal tradition from other European countries – one that has served them a long time, and which they are justly proud of. But being empowered to overturn the decision of the courts in the UK and other countries, the ECHR is effectively imposing one legal regime – a judge-led regime – on everyone.

But why do we want the law of different countries to be identical? We can learn a lot from different countries running their affairs in different ways, then looking to see which way is preferable. Imposing a single legal view on a large number of countries prevents that learning from taking place.

And why should an unelected body deign to override the decisions of different countries’ courts and legislators anyway? Originally, the plan was that the ECHR would simply influence governments to ‘do the right thing’. But now, though it has no democratic legitimacy, it can override the decisions of UK courts and elected UK representatives. So in effect, law is being made by ECHR judges, and countries like the UK are bound by its decisions. That, as Lord Judge pointed out, gives us “a very serious problem with sovereignty”.

That is a particularly serious problem when a country thinks that its entire security is at risk. More than once, the ECHR stopped the deportations of suspects to face serious charges, including terrorism and genocide charges, to face trial overseas. Indeed, the ECHR has stopped deportations of foreign nationals already found guilty of serious offences abroad. Often, the grounds for such decisions have been the UK family ties of the accused, or their ‘right’ to the UK’s generous healthcare system. But what really got ministers’ goat was the Court’s blocking, for a long time, of the deportation of the radical Abu Qatada, wanted on terrorism charges in Jordan.

So now, the UK is to have its own new Bill of Rights, passed by Parliament. Actually, our old one, dating from 1689, has served us pretty well. I only hope that in drafting the new Bill, ministers do not fall for the nonsense perpetrated in the postwar settlement – things like the ‘right’ to free education. Because every right is someone else’s responsibility to provide. You can be sure that every lobby group will be out there, campaigning for ‘rights’ to this or that or the other, all at taxpayers’ expense of course, to be included in the Bill.

But in fact, all we need is one right – the right to be left alone without other people, and especially governments, pushing us around.

If Mr Cameron calls, I will gladly give him a draft.

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.