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Month: May 2023

The Long Grass

24 May 20230Comments


There were two Braverman statements on Monday 22 May in the Commons. Only one of them really matters and it is not the one which has so exercised the commentariat. It is the Home Office’s formal response to the final report of IICSA and its 20 recommendations for an effective and comprehensive system for the protection of children from what the inquiry chair described as a “national epidemic” of abuse. The Inquiry was set up in March 2015 by Mrs May following evidence that many institutions were not just failing to protect children from sexual abuse but were actively dangerous for them. It produced 52 reports on a range of bodies: churches, local authorities, schools, care homes, sports bodies and so on. No body could be assumed to be safe for children, not even those set up to help them. The scale of the evidence taken is staggering: over 6,000 victims, 725 witnesses and 325 public hearings. The final report was published in October 2022. The government had 7 months to consider the recommendations and prepare its response. On Monday Suella came to the Commons to say what the government would now do.

And what is that action? Well, not very much frankly. Much like Braverman’s statement to the House, it amounts to no more than a lot of well-crafted platitudes, promises to think about some of the recommendations, consider them, go out to consultation, accept some others “in principle” but subject them to more “assessment” so that we can have more evidence taking, reviews, talking, words and waffle. But of actual action and implementation of the recommendations, there is precious little sign. Were seven and half years and IICSA’s extensive research and evidence not sufficient then? Apparently not.

The government has not accepted all the recommendations or has watered them down. It has not even implemented the recommendations from previous reports. 

  • Take the recommendation to have a dedicated Minister for Children: this was rejected, the existence of the Education Secretary being deemed sufficient. We have had 10 Education Secretaries in 13 years (5 in the last year alone) with such luminaries as Gavin Williamson and Nadim Zahawi in the role. How can this department possibly focus properly on the prevention of child sexual abuse? 
  • What of the Child Protection Authority? No – more thinking needed. 
  • The same with the proposal for a redress scheme and therapy for the victims. 
  • Even the proposal to ban “pain compliance techniques” has been rejected because these can be used properly if the appropriate procedures are in place. Of course they can.

It is a dismal response to what has been – and continues to be – a serious problem, one of the worst crimes to be perpetrated – and against one of the weakest and most vulnerable groups in our society. Little wonder that IICSA’s Chair and the Victims and Survivors’ Consultative Panel expressed their “deep disappointment” saying that the government’s response “will not provide the protection from sexual abuse that our children deserve.” Sarah Champion MP could not contain her fury in the Commons saying that “accepting the need to act isn’t the same as acting”. That sums up this government’s approach to pretty much everything. It behaves like a passer-by at the scene of an accident, wringing his hands while stating how ghastly it all is. Does it not understand that it is in power, has a majority and can not only act but is actually expected to do so?

There have been a large number of inquiries into misbehaviour in recent years. Pretty much all of them have been an exercise in kicking embarrassing stories into the long grass until everyone concerned has died or given up and the politicians/administrators responsible have moved on, with the occasional token face-saving exercise to create the illusion of action. That is pretty much what will happen to those still continuing: the one on the blood contamination scandal, for instance, due to report this autumn. Or the Post Office one. It is what will likely happen to the latest police reports, though the Met deserves some sort of medal for ensuring that, on the day the Mayor announces the establishment of a London Policing Board (to which “Londoners with diverse lived experiences” – as opposed to those unlived ones – are invited to apply), the first police officer to be disciplined (rightly) in relation to its failings over Wayne Couzens is a woman. (Her actions – failing to investigate properly his indecent exposure at a fast food outlet shortly before his murderous crime then lying about it – were hugely unprofessional. As were the failures of those who hired him, failed to do proper due diligence, failed to act on previous red flags, failed to investigate previous sexual allegations against him and promoted him during the previous three years. Shall we take bets on how many of them get disciplined equally severely?)

What makes this inaction by the Home Office so contemptible is the contrast with the way politicians jump on these issues when they think it makes them look good or if they can attack an opponent. Suella Braverman did just that with her recent comments on grooming gangs and ethnicity, claiming that it was political correctness which prevented action. And yet when given the opportunity to act her department does little or nothing. Starmer’s response was to elevate to the Lords a man who used false child abuse allegations to attack political opponents. An error of judgment by anyone but truly appalling coming from an ex-DPP.

Rishi Sunak likes to talk about “our precious children”. Yes, they are precious. They depend on us to do right by them. They are our offering to the future. They deserve better than this.

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Whose free speech?

13 May 20230Comments


Let’s imagine a scenario:-

  • Take a well-known transgender (male to female) writer with many books to her name. She is learned, interesting and eloquent, particularly on gender ideology, which she supports and thinks useful to an understanding of human personality and sexuality. She has firmly expressed views that men can become women and the category of “woman” should be more fluid than has conventionally been the case. She has supported campaigns to alter various legal definitions to enable this. She has also stated that she does not wish to see a diminution in women’s existing legal rights.
  • She accepts an invitation from a venue – let’s call it “The Forum” – to be interviewed in a series on “Women in the Public Eye” as part of the annual literary festival in the city where The Forum is located.
  • The interviews are publicised.
  • Some of The Forum’s staff claim to be upset at this writer’s inclusion. They disagree – strongly – with her views. They consider her a misogynist. Some even describe her as a “destroyer of women’s rights”. They say they would feel “upset” and “unsafe” if she were to attend. 
  • They make their views known to the management of the venue. (It is unclear how representative of all the staff they are or whether the venue’s management seeks to canvas the views of other staff. Nor is it known whether the venue sought to make alternative staffing arrangements so that the staff who did not wish to work at this event could be – temporarily – replaced.)
  • The Forum announces the cancellation of its invitation. It says publicly that this is because their staff object to this writer’s views and pro-gender beliefs and that the venue has an obligation to consider the feelings and safety of its staff. So the event will not go ahead.
  • The writer is upset. She points out in public statements that the reason given for cancellation discriminates against her because of her belief in gender and that this is a breach of the laws prohibiting such discrimination. The Forum maintains its stance.
  • No politicians come to her defence, not even those in the party she has supported, voted and campaigned for and donated to, nor the politician in that party who is a part-owner of The Forum. Some even complain that they are being expected to answer questions about the issue as if it were all a terrible impertinence and inconvenience.
  • Following the provision of detailed legal advice to the writer which she shares with The Forum (and its own legal advice) the venue backs down, accepts that it unlawfully discriminated, offers an unreserved apology and reinstates the event.

We do not need to imagine this scenario. It is pretty much what has occurred in relation to the invitation made by The Stand in Edinburgh to Joanna Cherry MP, KC, an invitation cancelled after its staff objected to her presence on the grounds that her views made her, in their words, “transphobic” and therefore they would feel “unsafe” if she were to attend. It has been reinstated following legal advice obtained by Ms Cherry and The Stand. The only difference is that, in the imaginary scenario, the views deemed unacceptable are the opposite of those expressed by Ms Cherry.

It goes without saying that the imaginary scenario above is a clear example of discrimination on the grounds of belief, a protected characteristic under the 2010 Equality Act. It is wrong. It should not happen. Saying this and opposing what the hypothetical venue has done should not – and does not – depend on agreeing with the views of the transgender writer (or anyone else to whom something like this happens).

However, if such a scenario happened, it is pretty much a racing certainty that those applauding The Stand for taking the steps it took (and, in the cases of some, deploring its climb-down) because they object to Joanna Cherry’s views on transgender/women’s rights issues would be outraged at the same thing happening to someone whose views they agreed with. People’s views on free speech do not, it seems, flow from any clearly enunciated and consistent principles. Nor do they pay any regard to the law. For far too many, speech should only be free, should only be permitted if it is speech they agree with. 

This is not an issue which started with the women’s rights/trans rights debate. It has been around for centuries – see the arguments in the Christian churches with heretical sects. Or the Puritans. More recently, we saw it with the Rushdie fatwa when, surprisingly, a lot of people one might have expected to have spoken up for a writer in a Western country threatened with a religiously-mandated death by a cleric in a foreign country, a threat supported by many of the writer’s fellow citizens, sought to justify or explain away the threats by claiming that “offence” had been caused by the writer, that those so offended came from a different “culture” and that culture and religion must be respected. It was a dismal sight. It might have had the virtue of honesty if those making these specious claims had admitted they were scared and did not wish to be threatened with death either. 

The whole wretched episode also introduced us to the suffix “phobic”, which could be handily attached to whatever belief or category of people needed to be rendered beyond challenge. A new sacred caste could be created and those objecting cast as “phobics”, the 21st century’s version of “heretic”. How marvellously convenient!

The pusillanimous, cowardly reaction manifested itself repeatedly in the decades that followed – over Danish cartoons, the Charlie Hebdo cartoons, a play depicting murder and rape in a Sikh temple and so on. It has been displayed by politicians, publishers, newspapers, theatre directors, gallery directors, academics and many others. Seeking to shut down those with gender critical views is only the latest iteration. It will not be the last.

There have been common themes in the reactions: an admission (often shame-faced) that what has happened is censorship but that the safety of staff and audiences and others is more important. Lately, there has been a refusal even to admit to any censorship. Rather, the focus is only on the “suffering” endured by staff or whichever group is complaining, their “safety” and the overriding obligation to avoid giving “offence” to them. Those who object to censorship or point out what the law requires are described as “phobics” or “bigots” thus making it, at least in the minds of those doing it, wholly unnecessary to engage with their arguments and views, listen to them or pay any attention to the law’s requirements.

What all the different objections over the years amount to – whether described as “blasphemy” (Mary Whitehouse’s objection to the Kirkup poem) or “hurt” and “offence” to a religion (Muslim objections to The Satanic Verses or Sikh objections to plays criticising them) or “feeling unsafe” or as “phobic” or “bigotry” – is no more than “I do not want to hear opinions I disagree with”. Sometimes, it is grudgingly accepted that people might be allowed to believe such things but should certainly not be allowed to express them in public. It is said that no-one has a right to a platform. True. But it conveniently misses the point that the platform does have obligations to comply with UK anti-discrimination and equality laws. It also ignores the fact that it is not simply freedom of belief which is protected but freedom of expression also.

What is also noticeable is the almost total disregard for what the law says on the topic, despite the endless focus on the “human rights” of those who are upset. The European Court of Human Rights in Handyside v The United Kingdom set out very clearly what the principles of free speech and free expression mean.

“The Court’s supervisory functions oblige it to pay the utmost attention to the principles characterising a “democratic society”. Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10 (art. 10-2), it is applicable not only to “information” or “ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”.” [Emphasis added]

What this latest incident shows is that these principles – and the laws enacted to make the principles a reality – are not really valued as they should be. Most worryingly, they do not appear to be valued by politicians. When laws specifically passed to enable equality and freedom from discrimination are disregarded by politicians (especially self-proclaimed progressives), little wonder that others disregard them also.

There are two immediate consequences of this:

(1) People have to constantly go to law to enforce their rights (as Ms Cherry had to do). It is worth noting that there have been at least 5 previous cases on unlawful discrimination on the grounds of belief, 3 of them in Scotland. So the idea that the law on this was unclear and that there were no precedents for the venue is not true.

(2) Even when they win, those legal decisions are often ignored or misconstrued, whether deliberately or out of ignorance (as with the Forstater decision).

What we are also now getting are claims that using the law to enforce one’s rights or to prevent unlawful discrimination is a form of bullying. It is as if those doing it do not want some people to have rights – or these rights – at all. Universal human rights are not, apparently, meant to be universal at all. The other complaint is that requiring staff not to carry out or facilitate acts of unlawful discrimination is, somehow, a form of servitude, an absolutely intolerable imposition. What can also be expected are attempts to prevent lawful events from going ahead at all – not simply protests about them – the “heckler’s veto“, which can itself amount to unlawful discrimination (as recently happened at Edinburgh University).

There is a more fundamental consequence too. If politicians will not support the law in situations which the law is specifically intended to address, it engenders a disrespect for the law as a way of balancing rights and enabling different groups in a society to live together peacefully. Additionally, it renders politicians increasingly irrelevant since their prime purpose is the enactment and administration of laws. What we risk getting instead is an arms race of people shrieking ever more loudly about their hurt feelings and the wickedness / bigotry of others, in the hope that if they shout loudly or behave menacingly enough they somehow “win” – a Tower of Babel of narcissistic “victims”. Emotion rather than critical thinking and law. Is that really what we want? It is a question those Scottish politicians so disinclined to address the Joanna Cherry/The Stand issue should ask themselves.

Human rights – if they are to mean anything – have to apply to all humans, not just your friends. Legal rights – if they are to mean anything at all – have to apply to everyone falling within the category granted those rights. Legal rights – to be meaningful – have to be enforceable. Enforcing your rights is not bullying. To believe so is to believe in Potemkin rights, ones which exist in theory but not in reality. Politicians should not be afraid to say so.

Above all, what those objecting to Cherry, Rushdie, cartoonists or others want is one set of approved opinions, those they agree with. Free speech for me but not for thee. But what this will soon become is free speech for no-one, not even me.

Because what they refuse to understand is that if you do that you are not arguing for freedom at all. You are arguing for totalitarianism of thought and you are doing so because you think you are on the winning side. But, one day, you will not be on the winning side and then it will be you who will be shut down. And what will you say then, the laws and conventions to protect you having been cut down by you in your zeal to enforce your views on others?


Photo by Markus Spiske on Unsplash

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Sentence first – verdict afterwards

13 May 20230Comments

It is again time to review what the “intellectually challenged from the neck up” party (© Joanna Cherry) – or the SNP as it is usually known – is up to. Having finally found an auditor (though, rather embarrassingly for a pro-independence party, there was not one auditor anywhere in Scotland willing or able to take on the job) the Holyrood government has decided to reform the Scottish criminal justice system. In one of his previous roles as Justice Minister, the current First Minister introduced the Hate Crime and Public Order (Scotland) Act 2021 – an Act which very many groups have described as having a chilling effect on free speech, criminalising as it does expressions of opinion in the privacy of one’s home. It has proved so contentious that more than 2 years after being passed, it has yet to come into force. 

What could possibly go wrong with the proposed Victims, Witnesses and Justice Reform (Scotland) Bill? Well, what could go wrong with it is precisely what Jolyon Maugham KC was complaining about recently, though so keen was he to show that the reason his project kept losing cases was because judges were put under pressure by the executive as they are in Turkey and Poland (rather than because his legal arguments were unsound), that he missed the very real issues posed by this Bill. Those issues are four-fold:

1. The Bill undermines judicial independence

How? It gives the Lord Justice General, a judge, the power to dismiss any judge sitting on the Sexual Offences Court for any or no reason and without any due – or any – process at all. This is the first time such a power has been given to any judge. Breathtaking in its scope, this undermines a judge’s security of tenure and, therefore, independence. How can a court consisting of judges appointed under these conditions be considered independent and impartial? If it isn’t then Article 6 of the ECHR which says that a defendant charged with a criminal offence has the right to a fair hearing by an independent and impartial tribunal is breached. If the Bill does breach the ECHR then – joy of joys! – it is not within the legislative competence of Holyrood. Westminster can once again wheel out S.35 of the Scotland Act and Holyrood has another grievance. Is this the real aim?

2. Not a fair trial

The Bill establishes a pilot for rape trials without a jury, a proposal put forward by Lady Dorrian, one of Scotland’s most senior judges. That pilot is set to be reviewed by the executive and its report submitted to Holyrood. Some rape trials will be treated as an experimental laboratory for policies which depart from long-standing principles of criminal justice in the UK. The Bill specifically states that one of the pilot’s objectives is “to consider the impact of single judge trials on outcomes.” In short, its aim is to increase convictions. Put that with the judges having no security of tenure and it is not hard to see the clear pressure judges will feel under to convict. 

Ah – but will judges submit to such pressure? It is worth reading this Times article by Matthew Syed about how corruption develops. He refers to the “rule of reciprocity” to explain how even a small favour creates an obligation, often subconscious, to do a favour in return. It is pressure which those involved are not even aware of. When judges on a court are, effectively, employed at will and know that the executive is looking for convictions, how can we, how can the defendant be certain that this will not sway the judge’s decision even if they claims it won’t or didn’t? We can’t. Why would anyone charged with such a serious crime agree to be part of such a pilot? 

3. The Alice in Wonderland approach

Everyone wants rape offences to be properly investigated, the perpetrators tried and, if the evidence is strong enough, convicted. But the manner in which a conviction is arrived at matters as much as the result, more so in fact, because of the imperative to ensure a trial fair to the defendant who is, after all, innocent until proved guilty. Rape convictions are too low. But this is not because of the existence of juries. It is because the investigations are poor and the delays before trial too long. If you work back from the result you want, and remove all obstacles in the way, you are pretty much guaranteed to create an injustice. Rape is a huge injustice to women. You do not respond to that, however, by creating an injustice for those men charged with it. Two wrongs etc.,. This approach – working back from the result you want or are expecting because that is how you have set it up – is the same approach which led to the Post Office’s Horizon scandal. It does not become a good one simply because the subject is rape not fraud.

4. The general does not explain the particular

The justification for the pilot is to enable judges to decide on the evidence without falling prey for various rape myths which juries are said to be prone to. The evidence for these myths affecting jurors is a pilot based on mock trials (not real ones). But the problem with this approach is that (a) it assumes judges will not also believe these myths; (b) they can be trained out of them – which adds strength to the argument that the pilot’s main purpose is to increase convictions, even at the expense of a fair trial; and (c) ignores the fact that in any individual case the actual evidence may well point to acquittal even if this looks to an outsider as if the jury was believing a myth. For instance, it may well be true as a generality to say that women do not make up allegations of rape or that a woman not fighting back does not mean she has consented. But you cannot say this in every single case. Defendants are not tried on generalities but on the specific evidence, on the individual facts and those facts may well point to an acquittal even if, to outsiders, it may look otherwise. 

There has been a lot of criticism of this aspect of the Bill with many lawyers indicating that they will not act in such cases. So it remains to be seen whether this Bill will go forward unamended. It is not the first time, of course, that Holyrood has sought to get rid of juries. Ms Sturgeon tried it during Covid seeking an 18-month suspension of jury trials. Now a pilot is being used instead. What is it with our rulers that they keep on bringing back wretchedly illiberal proposals, time after time? It took 3 goes before Raab’s dreadful Bill of Rights Bill was dropped. How long will it be before progressive Scotland stops trying to be the Hungary of the British Isles?

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Joined Up Thinking?

7 May 20230Comments

Following the conviction of Wayne Couzens for three offences of indecent exposure and his sentence to 19 months imprisonment (largely irrelevant given his life sentence for the rape and murder of Sarah Everard), on 7 March the Today programme interviewed four women about their experiences of indecent exposure.

Three of the women (all in their twenties) were victims of this offence. The fourth was Dame Diana Johnson, Labour MP and Chair of the Home Affairs Select Committee, which is currently looking at Violence against Women and Girls.

The key question

“Are women under constant pressure,” Justin Webb asked, “to simply accept exhibitionism and these forms of aggression?”

The victims

What the three women said in reply is worth listening to. The full interview (12 minutes long) can be heard here. They describe instances of indecent exposure which happened to them in ordinary places at any time: the park, a busy London street, the tube. “Flashing” is the wrong word for what actually happens: a man dropping his trousers in front of women in the street, a man openly masturbating in the tube while looking at a woman, a man playing with his genitals and shouting at a woman.

What do women feel when this happens? “So violated”. “Panicked” But above all, desperate to get out of the situation to somewhere safe. None of them saw any point in reporting what happened to the police or any other official because they would not “be taken seriously”. “Is anything going to come of it?” one of the women asked. A good question.

All of them said that this behaviour was “quite normalised”. They were used to “sexual harassment”; they were not in a minority. This is true. I am no longer in my twenties. But what happened to these women has happened to me and every single woman I know. The first time a man exposed himself to me was in in the girls’ toilet of my local library. I was about 13. There were other instances too — in North London in broad daylight, walking home from church or going to school.

As one of the women said:

“This is what happens to women. This is what has always happened. This is what will continue to happen.”

She is right. This is the answer to Justin Webb’s question. But this is not what ought to happen. All three felt that the stigma of these offences was on the woman; they felt blamed for it happening, for being in the wrong place at the wrong time. So they — like every other woman — learnt to endure it.

The Labour MP

So to Diana Johnson. Her interview was about how minor sexual offences were often a precursor to — and an indication of a propensity to commit — very serious sexual offences. A young woman in her constituency — Libby Squire — was kidnapped, raped and murdered by a man who for months beforehand had been exposing himself round town, had committed acts of voyeurism, which only came to light after he murdered Libby. She said that, too often such minor offences were laughed or joked about, were simply not taken seriously.

And then Justin Webb asked another very good — and highly pertinent — question (by reference to Jordan Gray, a trans comedian, who exposed himself on a Channel 4 show):

“Whether the idea that people who don’t want to see the male body should be allowed not to is something that we’ve slightly lost?”

Diana’s answer goes to the heart of this issue:

“the male body can be used to intimidate, as an act of violence against women and girls”.

It is not simply what a man does with his body which matters. Exposing, displaying his body is also an act of aggression, of violence. It induces, is intended to induce fear in women. And it is the male body which is being used in this act of aggression, not an identity or gender or a pronoun or anything else. No — the physical reality of a male body.

That is what is being exposed, that is what a woman sees, that is what is being used to intimidate a woman. A male body.

An act of violence

Male genitalia is a source of pleasure to men. It is also a source of pleasure for women. But only in the right settings and only if it is wanted by the woman. What men perhaps do not understand in their bones is that what is only a source of joy for them can — for women — also be a weapon, a source of pain and harm and fear. A man’s strength can comfort and protect. But it can overwhelm and harm and kill. Male bodies can be frightening. Women — faced with an unwanted exposure of a male body, of a male exposing or playing with his genitals, faced with men behaving beyond the bounds of social convention, faced with men breaching women’s boundaries — have reason to fear such acts of aggression. Men — faced with an exposed or naked female body — may feel aroused by or indifferent to or disgusted. But they have no reason to fear such a body.

Little wonder that those three women interviewees said that their immediate reaction is to get away from, get out of the situation. This is why this is not — and should not be seen as — a joking matter. Men who breach women’s boundaries with their bodies are behaving violently towards women even if they don’t touch her.

So to another MP — a Lib Dem one

Earlier in the programme (from about 7:14 am), Wera Hobhouse had been interviewed on the same topic. In February 2019 thanks to her efforts, upskirting became a criminal offence. She too was concerned at the disregard for sexual offences — 

“Where are we if these attacks on women continue to be normalised?”

She too wanted a “complete culture change” so that all sexual offences, however minor, were properly reported and investigated.

Then this — 

“The traumatising effect that any of these offences have on women has been completely underestimated….. Women are deeply traumatised. It’s a proper offence. It leads to ultimately the feeling in women that they’re very vulnerable, that they’re not being listened to, ….that what they feel is a proper attack on them, their freedom, their liberty, their way of life is not seen as such.”

Oh, so very well said!

Another question then

But now a question for these MPs. If male bodies are used to intimidate, to violate, to make women feel unsafe, vulnerable, under attack, if breaching women’s boundaries are an act of aggression towards women, if sexual acts like these must not be ignored, if women are entitled not to suffer trauma and have their way of life attacked, then why are the parties to which these MPs belong so intent on making it easier for men to access women’s spaces and carry out these traumatising acts of violence?

And why don’t these MPs speak up against such proposals? Little point legislating against upskirting if you then make it easier for a man to go into a woman’s changing room, after all.

Would it be too much to expect these MPs to remember what they said — with such passion — when they are next faced with proposals from their parties which will create new opportunities for sexual predators to use their male bodies to intimidate women.

It is not enough just to listen to women. It is not enough to get rightly outraged when a serial sexual offender is allowed to commit the worst of crimes. It is not enough to agree that women, forced to see male bodies when they don’t want to, are traumatised. All these words are lovely and true and welcome. But a bit of joined up thinking and action would be even better.

Photo by Mihai Surdu on Unsplash

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The Cheque is in the Post

7 May 20232Comments

Remember the De Lorean fiasco? To provide jobs in Northern Ireland, the then government paid the bouffant-haired car designer to set up his factory there. It collapsed a few years later amidst missing money and fraud. Arthur Andersen, the auditors, who admitted missing obvious fraud signs, were banned from government work and sued. It was only when Blair won that the ban on AA was lifted and a risible settlement agreed. (Doubtless entirely coincidentally, AA had provided free advice to Labour in opposition. A “scratch my back and I’ll scratch yours” approach to favours has never restricted itself to one party.)

Fast forward a quarter of a century. Fujitsu, whose Horizon accounting system used by the Post Office, was responsible for the largest miscarriage of justice in British history, has suffered no similar penalty. Indeed, no penalty at all. Far from it. It has been rewarded with more lucrative government contracts; it has not paid any compensation; no company official has been held responsible.

Why? Well, one answer is that AA’s failures harmed the government. Whereas Fujitsu and the Post Office only harmed some lowly sub-postmasters and mistresses. A cynical take. But an accurate one. The brutal reality is that being in public ownership or a public service does not automatically mean an organization behaves well. Worse, it often means that when it causes harm to others, its primary interest is to protect itself – even at the expense of those it has harmed. This is not new. See how the Aberfan families were treated in the decades after the loss of their children. Or the victims of the blood contamination scandal or many other NHS scandals or Windrush.

This story shows a state – and many of its key functions: the Post Office, owned by the state, the criminal justice system, run by the state, and the responsible Ministers and civil servants – to be malign, incompetent, indifferent to the damage caused, defensive and determined (behind all the paraphernalia of inquiries, reviews, assessments) to delay the allocation of responsibility, effective consequences for those responsible and proper, timely compensation for those harmed. It is no consolation – nor anything for the rest of us to be proud of – that some judges, some lawyers, a few persistent journalists and 1 MP – James Arbuthnot – have battled and are still battling to ensure justice.

There has been a book, a podcast, a heartbreaking Panorama documentary. The Times has written some scathing editorials. The inquiry grinds on, lawyers argue about different compensation schemes, the police investigation into possible perjury by Fujitsu personnel has been announced. But nothing seems to happen. Meanwhile yet more postmasters die – 59 so far. Is that the plan? To wait until everyone is dead, then quietly bury whatever report is produced while those responsible get away with it and carry on making money? Apparently so.

It is cruel. It adds a further injustice to the original one. It displays a contempt for the people who have suffered and are still suffering. It displays an indifference to the human consequences of people’s acts and omissions, something all too easy to forget amongst the mass of wrongdoing patiently unearthed by courts and inquiries. That cruelty consists in holding out the promise of compensation while making the process of getting it long, complicated and difficult. Meanwhile, those responsible, both for the injustice and the delays, suffer nothing, withhold evidence from the inquiry and/or, grotesquely, award themselves bonuses and lie about it. On its website the Post Office says it wants “to remain one of the most admired institutions in the public sector”. “Remain“? “Most admired“? Both delusional and arrogant.

Why has this scandal not been taken more seriously?

  • The very diffuse nature of the tragedy over two decades. Lots of individual stories, all heartbreaking. But no one event or place to focus on. No image. No buried school or trapped fans in a football pen or burnt-out tower. No anniversary. So it is easy for it to fade away into a complicated background, something to do with accounting and IT and legal stuff. No-one is going to sing their heart out for that. No Royal is going to visit and lay flowers.
  • Worse – this was not just the wrong people convicted of a crime. There was no crime.  It is hard to get your head round the fact that hundreds of people were investigated, tried and convicted for crimes that never happened. How can this possibly be?
  • The people to whom this happened come from all backgrounds, all over the country, of all ages. It makes it worse but also means they have no obvious representative to speak for them, no-one to whom they – collectively – matter.
  • No political party has taken up their cause. All the major parties had Ministers responsible for the Post Office who failed to ensure that it behaved competently and then, when the scandal erupted, failed to ensure that it was handled properly. So they hide behind their pathetic claims that they weren’t briefed or didn’t realise or delegated or assumed that others were doing their job and are shocked and appalled and oh dear … blah blah .. and very sorry etc.,. What is the point of these junior Ministers if all they can do is hand-wringing avoidance of responsibility?
  • Far too many groups behaved badly. What makes this so hard to comprehend is the overwhelming scale. Look at all those responsible: Fujitsu, those who developed, oversaw and sold Horizon, Post Office management at all levels, internal investigators, in-house lawyers, external lawyers, IT staff, those knowing something was wrong but saying nothing, Ministers, civil servants advising them, prosecutors, the judges’ ruling that the computer evidence should be believed (one of the stupidest judicial rulings made). All these, through their actions and omissions, are responsible; many continue to be responsible for the delays in giving the victims adequate compensation while they are still alive. Easier to forget or not engage at all.

Among all these failings, two deserve very close scrutiny.

The lawyers

There were obvious problems with the Post Office being its own prosecutor,  the confusion between the role of investigators and prosecutors, the failures of those investigators, a lack of clarity about the duties owed and to whom by the in-house lawyers, failures to make proper disclosure, withholding key evidence, failure to speak up, conflicts of interest for the lawyers advising on the compensation schemes, lack of honesty, failure to understand or challenge the accounting and technical evidence (a persistent problem for the legal system – see the Sally Clark case) and so on. Bluntly, the Post Office ruined innocent people by lying, manipulating and subverting for its own commercial advantage the English justice system. Its lawyers were central to that. Many of those involved should be ashamed of – and deserve censure for – their unprofessionalism and behaviour.

The approach to the technical (in this case, computer) evidence

There is a tendency (not confined to the Post Office) to believe there is one technological system which will provide the answer to a problem; and believe only what that technology tells you. Both are foolish, dangerous impulses. (A lesson for us on the cusp of a new technological revolution.) When combined with working back from your desired conclusion (“we’re going to find fraud with our shiny new toy”), miscarriages of justice are all but inevitable. (Something for Holyrood to consider before proceeding with its judge-only rape trial pilot designed to increase convictions.)

What now?

3 people: the PM, the Chancellor, the Business Secretary need to stop hiding behind endless inquiries and legal to-ing and fro-ing and make it a top priority to get compensation paid promptly.

  • Those MPs trying to help their constituents need to badger them until they do.
  • The inquiry into responsibility must be uncoupled from the assessment and payment of compensation.
  • Fujitsu should be given no government contracts until they pay compensation.
  • The Post Office’s senior management needs replacing by honest capable people. A public explanation is needed for why it awarded itself a bonus scheme for complying with an inquiry set up to investigate its own failings and why it lied about it in its public accounts.

Meanwhile, remember the words of Desmond Ackner QC, Counsel for the Aberfan families, to the official inquiry. They apply as easily to Horizon as to a slag heap.

This was a slow growing man-made menace, fed by the indifference of those who should never have permitted its existence. That is the horror of this disaster. There can be no more bitter reminder of the truth and wisdom of George Bernard Shaw’s condemnation –

“The worst sin towards our fellows is not to hate them. It is to be indifferent to them. For that is the essence of inhumanity.”


Photo by Johnny Briggs on Unsplash


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Case closed

3 May 20230Comments

Is Simon Case the new Cressida Dick? The Civil Service has not been declared institutionally misogynist, racist or homophobic. Nor institutionally corrupt. But it has not been well led in recent years. Had Jeremy Heywood lived, he would have had serious questions to answer about the Greensill affair, though it is fair to note that he may have had good answers. Still, that whole episode does not reflect well on anyone involved: not the civil service nor the politicians nor the banks all falling over themselves to help a fluent opportunist without asking any hard questions. As was all too predictable, reputations have been harmed and vast sums lost.

Now we have Simon Case – Cabinet Secretary since September 2020 – and in a number of senior roles before then. Despite an apparently impressive CV and a fast rise to the top, he has not shone in his latest role. The Archangel Gabriel would not have found it easy dealing with Johnson, let alone trying to persuade him to stick some rules. Even so, Case has shown an impressive ability to get to the top and stay there while managing – so far – to avoid being held accountable for a series of unfortunate misjudgments. It is as if all his skills have been devoted to climbing the greasy pole and holding on rather than in actually doing the job he’s been employed to do, competently and effectively. Rather like the man who appointed him, in fact. And rather like a number of other senior people who should either never have been appointed or who stayed far too long and damaged the institution they were in charge of. Like Ms Dick, for instance. Or Ms Sturgeon. Or Ms Spielman. 

  • Partygate. 
  • His inability to ensure that No 10 civil servants complied with Covid rules. 
  • His own breach of the rules.
  • His acceptance of the investigation into Partygate until he realised – or it was pointed out to him – that he was conflicted.
  • His alleged treatment of Sue Gray after her report into Partygate. 
  • The current row about the terms and timing of Sue Gray’s departure.
  • The Downing Street wallpaper investigation. 
  • What he did or did not do in relation to the sacking of Tom Scholar by Liz Truss, a move which left the Treasury bereft of experienced leadership and likely contributed to last autumn’s Truss-induced financial hurricane.
  • The appointment of Richard Sharp and what Case did or did not advise Sharp about his role brokering Johnson’s finances.
  • His inability, according to the report into the Sharp affair, to keep accurate, clear, reliable minutes – the ABC in a civil servant’s toolbox, one would have thought.
  • The poor relationship between Ministers and civil servants.
  • The management of the disciplinary and grievance process.

On and on it goes. 

Rather than be the person quietly effective at defusing or managing these tricky situations, Case seems to be a player in them, part of the story but also strangely absent when it comes to asserting his authority and finding resolutions. That is now the difficulty. Whatever the truth of the various stories and allegations, the fact is that he is now part of the stories and has lost whatever authority he once had. His judgment does not appear to be sound. A senior civil servant without authority or good judgment is, to borrow a phrase, “in office but not in power”. It is time for him to go.

The civil service is not perfect, by any means, but it is necessary to good governance (I know, the very idea!) and to effective governance and to governance in accordance with some generally accepted ethical standards. Those working in it and those Ministers for whom they work need people at the top who have the judgment and toughness necessary to manage a difficult – but important – function and relationship.

Whether Case was promoted too soon, whether he was let down by an amoral and untrustworthy PM, whether he was overwhelmed by the demands of Covid on top of everything else, whether he was never the right man for the job, whether he was too focused on managing his own career rather than on achieving anything tangible or whether it is a mixture of all or some of these, it scarcely matters now. He is no longer the right man. The longer he hangs on – or is allowed to stay – in his current role the greater the damage. The PM needs a better top advisor. The Civil Service needs a better leader. Voters need an essential part of the state to work well. Politicians allowed Cressida Dick to stay too long. All this decision-making by inertia or “better the devil you know” approach achieves is to make the job of a successor harder than it need be. The PM should not make the same mistake again.

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Euphorbia

1 May 20230Comments

I love euphorbia. Years ago I was wandering round what my memory tells me was a garden somewhere near the Cotswolds (though its name I have forgotten). There was a large bed with euphorbia wulfenii growing in it; I pointed at it and said to my friend “That’s the plant I want.” And from the ground came the voice of the gardener or maybe the owner, quietly working the bed, who gave me his trowel and said: “Go on. Take one.” So I did – a small cutting, wrapped in damp newspaper – and planted it at home. It did not, sadly, last. But my love affair with euphorbias has.

There is something magnificent about them: structural, with wonderful flowers (technically bracts) and such a range of colours: zingy green, a glaucous blue-green, orange and dark green and a soft lemon at the top. So welcome in spring and just made to be paired with tulips and other spring bulbs. They can be the large blowsy plant at the back of a border or at the front or at the base of roses. Or in shady spots. Or just about anywhere. There is a euphorbia for every spot.

 

But my favourite is euphorbia characias wulfenii: the biggest show-off of the lot. Last year I planted 3 small ones around the base of my apple tree. This is the result. The tree seems to rise up above a sea of euphorbia, amongst which are interspersed Ballerina tulips,growing up through a euphorbia mellifera.

 

 

This is euphorbia mellifera, planted on the other side of the apple tree. There is a matching one under the pear tree at the other end of this bed.

 

 

There are two characteristics of this which delight: the sharp green of its narrow leaves and the delicious honey smell from its small bracts. These are just beginning to show themselves.

 

 

But beware – it can grow enormous and take over. So it does need cutting back every year or so to keep it manageable.

 

 

It is not the only euphorbia I have planted, of course. Another favourite is griffithii “Fireglow” which has intense orange-red flowers in early summer. Here it is just starting to show itself. Orange is a wonderful colour to have in a garden: stunning with purple and blues or against dark leaves of all kinds. I have it planted here in front of redcurrant and blackcurrant bushes, providing a welcome pop of colour before the later summer flowers around it take the stage. 

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Is This Really Necessary, Minister?

1 May 20230Comments

Politicians are always inclined to fall for the “If all you have is a hammer, everything looks like a nail” fallacy. The almost instant reaction to any problem in the public eye or if you want to look serious about an issue or to show that you really really care is to propose a new law. 

In recent days, Labour have proposed a law making spiking a criminal offence, even though there are existing laws which could be used. They plan to ban “conversion therapy”, though it is wholly unclear what this term means. The Tories are trying to pass a law against small boats in the Channel. The Bill of Rights (introduced under Raab, dropped by Truss, reintroduced by Raab again) is back on Alex Chalk’s desk. 

This last Bill is a classic example of a solution in search of a problem. It has been presented as a necessary reform. In reality, there have – since 2010 – been 4 reviews, all of which found no “compelling evidence of a problem” or “viable proposals for reform”. The Bill has been eviscerated by the joint Parliamentary Human Rights Committee’s report – here. Even a previous Tory Justice Minister (Robert Buckland) said the proposed Bill was pointless and a solution to a problem which no longer existed, if it ever did.

This last comment goes to the heart of why so many proposed new laws so often achieve little – and can do great harm.

When should a new law be introduced? And why? 

Those wanting a change should show:-

  1. The mischief they seek to address or the improvement that is needed. “What is the problem to which this is the solution? Be  precise in your answer” should be the first two questions asked of any politician proposing a new law. Too often they are never asked. Or, if asked, the answer is no more than “Something must be done. This is something. Therefore we must do this.”
  2. What are the real causes of that problem? If the causes are not legal ones, a legal solution is not going to be the answer. What will it improve and how? Too often, a new law is doing for the sake of doing. Or more often appearing to be doing.
  3. Can this issue be addressed by existing laws or other measures? We have enough of the bloody things on the statute book, after all.
  4. Is the problem sufficiently serious to warrant change? Partly this is a matter of priorities. But some problems are ones which cannot easily be solved or at all, are inherent in the tensions between conflicting interests. A bit of realism to counter the “There should be a law against it.” tendency in voters and politicians is needed.
  5. Will legal change resolve or alleviate the problem? Will it create other problems instead?
  6. Is what is proposed a proportionate way of resolving the problem. Not all problems can be resolved or only at an unacceptable cost.
  7. What are the consequences, especially the unintended ones? Do they harm the interests of others? If so, how badly? Can these be easily mitigated? If not, is it really worth going ahead or are there other measures which might work better?
  8. Is this consistent with other legislation or initiatives the government is enacting? This may be unduly hopeful but some attempt at consistency and joined up thinking would be welcome.
  9. Finally – and critically – how is this going to be implemented / enforced? If there are no or few resources to back up the new intentions, what – really – is the point? 

Is a pointless / ineffective law harmful?

Does it matter? Yes. Pointless law-making – the passing of Potemkin laws –  creates or reinforces cynicism about politics and a disregard for the rule of law, especially when it is seen as ineffective. Above all, it diverts attention and effort away from practical and effective problem-solving measures.

The desire to be seen to be doing something often seems to be the only important consideration. Consultation is put forward as a justification. But too often consultation starts from the assumption that something must be done and avoids a clear-sighted analysis of what the problem actually is and whether anything should be done. Or, more cynically, a cover for unclear / unpopular proposals (“We are going to consult on these proposals” = “We know they aren’t popular but we’re going to implement them anyway.”)

It’s as if what matters most is not effectiveness but the appearance of busyness. Ironically, this simply creates more work for lawyers and judges to try to sort out the mess thus created, more material for politicians to grumble about, more cynicism among voters, more proposals – and on it goes. It’s law-making as Escher might draw it.

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