Avoiding tax and morality

Would you like to pay less tax?  Of course, you would.  You can, for instance, avoid paying tax on your savings by investing in tax-free ISAs, a government sponsored form of tax avoidance and there are other perfectly legal ways of paying less tax.  You can employ an accountant, move your money (if you have that much) to an off-shore account or give money to charity.  But at what point does this become morally wrong?  According to Treasury Minister David Gauke offering to pay tradesmen in cash is the wrong side of the moral line.  He, moral paragon that he is, has never, he said on Newsnight, asked whether he could pay for something cash in hand for a discount adding that ‘if people do that they have to do so with the recognition that means taxes will be higher for the rest.’  So if I pay cash in hand it increases the taxes for everybody else…sound logic but he provided no evidence to support the rhetoric. 

The assault on tax avoidance began last month when David Cameron condemned the use in the past by comedian Jimmy Carr of a Jersey-based scheme as ‘morally wrong’ and in his Budget speech Chancellor George Osborne described tax avoidance as ‘morally repugnant’.  Jimmy Carr, well-known for his acerbic attacks on others now found himself the butt of public anger and quickly did the ‘right’ thing accompanied by public mea culpa.  The problem, however, is that tax avoidance is perfectly legal even if some of its more ‘aggressive’ schemes may not be (though most have not been tested by tax tribunals).  Feigning moral outrage has long been a strategy used by government in the hope that ‘shaming’ individuals will make them act morally often when politicians cannot or will not introduce changes to the rules to ensure moral behaviour will occur.  It’s also a convenient smoke-screen to divert attention away from more difficult issues.  We all know someone who has paid cash in hand or have done it ourselves, so it personalises the issue of tax avoidance while few of us have direct contact with bank bosses or the filthy rich.

The difficulty in the past few months is that the government, by evoking morality as a criteria for paying taxes, have not only moved the taxation goalposts but has also confused further what was already a confused situation.  When is avoiding tax morally right or morally wrong?  Tightening the tax avoidance rules might define things more clearly, though I doubt it.  The government’s scatter-gun approach has still failed to address what for many in the public is the crucial issue, the tax avoidance or evasion of big business and the extremely wealthy.  It is clear that, despite the much lauded Tory belief that ‘we’re all in this together’, in terms of taxation this is far from being the case and that making taxation a moral question is unlikely to have any real impact on business or individuals who still use the rules, quite lawfully, to avoid paying taxes.  As Margaret Thatcher found with the community charge, taxation and trying to moralise political issues can be politically toxic.  Political expediency and morality do not make good bed-fellows.

Restoring autocratic rule: Hunter faces new problems

John Hunter faced three major problems in running the colony. [1] First, there was a division of responsibility between different institutions in London. As governor, Hunter was responsible to the King through the Duke of Portland, Secretary of State for the Home Office.[2] Since NSW had no means to express public opinion, Portland was influenced by private correspondence from discontented residents such as Macarthur and the governor was rarely aware of the entire information at the disposal of the government when it made its decisions.[3] Although the Home Office was responsible for the convicts and the colony, it had to rely on the Admiralty for transport to convey prisoners to Sydney Cove. The military were the responsibility of the Secretary at War and the commissariat and the Ordnance Department was responsible for military buildings. The Treasury, the Mint and two audit officers were concerned with the financial interests of the colony and the Post Office had the relatively easy task of dispatching mail whenever opportunity arose. Secondly, within NSW itself, the relationship between the civil and military establishments had been problematic since 1788 and the establishment of the New South Wales Corps and the decision by Grose to grant them land and their monopolistic attitude to the spirit trade made existing tensions even more difficult.[4]

Every day convinces me more and more that many of those people, if they cannot be prevail’d on to make their public office their first consideration, shou’d be remov’d. Their private concerns occupy all their time, and £50 per annum seems to be no object when £300, £400, or £500 is to be gained by trade.[5]

There were also the beginnings of the division between convicts, emancipists (convicts freed on a variety of conditions) and free settlers and between public and private sectors. Finally, the outbreak of war with France in 1793 had exacerbated this situation calling into question excessive government spending in NSW and, although the colony was not forgotten, it inevitably was not viewed as important a priority as had been the case before 1793. The potential for tensions between these different elements had existed from the founding of the colony but grew in significance from the mid-1790s when the survival of the colony was assured and food shortages became less common. Even so, Hunter complained in his first letter of Portland of the scarcity of salt and that the colony was ‘destitute of every kind of tool used in agriculture’.[6] As late as September 1798, Hunter was concerned that the people were ‘literally speaking, nearly naked and a great number without a bed or blanket to lie upon’.[7]

Hunter’s first impressions on his return to NSW, as recorded in his official dispatches[8], were favourable, but as he privately confessed later in a letter to Sir Samuel Bentham that he had little understanding of the nature of his ‘irksome command’ when he solicited the appointment.[9] By October 1795, he had become aware of the enormity of his task commenting to Portland on the extent to which the settlement had expanded and the problems this had created for effectively maintaining its security and administration.[10] This is reflected in the flurry of government and general orders he issued in the remainder of 1795 including one preventing the indiscriminate felling of timber on the Hawkesbury.[11] Hunter had a resident civil establishment of thirty-one including medical staff and superintendents of convicts, master carpenters and the like, but less than a third could be considered serious official advisers.[12] The number of officers on duty with the NSW Corps was seventeen.[13] There was considerable difference in age between the newly arrived governor, approaching 60 and those who might be called on to act as his advisers. Macarthur, as inspector of public works on whom Hunter relied in the early months of his governorship until the Baughan affair, was 28.[14] Captain Paterson, the Corps commandant was 40; Captain Joseph Foveaux was 30[15]; almost everyone else was younger than Paterson. Hunter as an experienced officer was accustomed to naval discipline and expected to see it reflected in NSW. Instead, he faced an entrenched military force and an increasingly dispersed body of settlers largely dependent at the mercy of the monopolistic trading practices of the military hierarchy and other officials. His instructions would have been difficult to implement even if he had a loyal and competent public service with reliable military support.[16]

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[1] Hoyle, Arthur, The Life of John Hunter, Navigator, Governor, Admiral, (Mulini Press), 2001, Auchmuty, J.J., ‘Hunter, John (1737-1821)’, ADB, Vol. 1, pp. 566-572. See also, Wood, G.A., ‘Governor Hunter’, Journal and Proceedings (Royal Australian Historical Society), Vol. 14, (6), (1928), pp. 344-362. For Hunter’s commission and instructions, see HRNSW, Vol. 2, pp. 110-117, 227-234 and HRA, Series I, Vol. 1, pp. 513-527.

[2] William Henry Cavendish-Bentinck, 3^rd Duke of Portland (1738-1809) was a Whig politician for the first thirty years of his political career but as a conservative Whig, Portland was deeply uncomfortable with the French Revolution, and ultimately broke with Fox over this issue, joining Pitt’s government as Home Secretary in 1794, a position he held until 1801. Briefly an MP, Portland succeeded to the title in 1762 but did not make his maiden speech in the House of Lords until 1783; one of his claims to fame is that he rarely spoke in parliament. See, Wilkinson, David, The Duke of Portland: politics and party in the age of George III, (Palgrave), 2003, pp. 108-136 for his period at the Home Office.

[3] Hunter expressed his concern about Macarthur in a letter to Portland on 14 September 1796, HRNSW, Vol. 3, pp. 129-131 in which he made clear that ‘...this officer’s conduct...[was] impertinent, indirect and highly censurable interference in the dutys and department of the Governor of this colony...’

[4] The problem of spirits concerned Hunter from the outset. His general order of 23 January 1796 prohibited the making of spirits in the colony: HRNSW, Vol. 3, p. 10; general order 11 July 1796 took action over the unlimited sale of spirits, HRNSW, Vol. 3, pp. 58-59; general order 12 December 1796, HRNSW, Vol. 3, pp. 185-186 on the link between crime and spirits;

[5] Hunter to Portland, 20 June 1797, HRA, Series I, Vol. 2, p. 22.

[6] Hunter to Portland, 11 September 1795, HRNSW, Vol. 2, p. 318.

[7] Hunter to Portland, 25 September 1798, HRNSW, Vol. 3, p. 493.

[8] Hunter to Portland, 11 September 1795, HRNSW, Vol. 2, pp. 318-319 stated that ‘agriculture...far exceeds any expectation...and does great credit to the arrangements made by...Grose and...Paterson’.

[9] Hunter to Bentham, 20 May 1799, HRNSW, Vol. 3, pp. 673-675.

[10] Hunter to Portland 25 October 1795, HRNSW, Vol. 2, pp. 328-329.

[11] Hunter to King, 5 December 1795, HRNSW, Vol. 2, p. 341.

[12] The civil establishment is listed in HRNSW, Vol. 2, pp. 331-332.

[13] They are listed in HRNSW, Vol. 2, p. 330.

[14] Initially Hunter retained the services of Macarthur see, Hunter to Portland, 25 October 1795, HRNSW, Vol. 2, p. 327 but their relationship quickly deteriorated into acrimony, see correspondence between Macarthur and Hunter between 24 and 29 February 1796 printed in HRNSW, Vol. 3, pp. 26-29 that resulted in Macarthur’s resignation as inspector of public works. Macarthur became increasingly critical of Hunter’s administration, see, Macarthur to Portland, 15 September 1796, HRA, Series I, Vol. 2, pp. 89-93.

[15] Fletcher, B.H., ‘Foveaux, Joseph (1767-1846)’, ADB, Vol. 1, pp. 407-409. Promoted to major in 1796, as senior officer in the absence of Lieutenant-Colonel William Paterson between August 1796 and November 1799 he controlled the NSW Corps during a period when some of its officers were making their fortunes from trading and extending their landed properties. Whether Foveaux was a trader is unknown but he certainly turned his hand to stock-raising. By 1800, he had 1,027 sheep on the 2,020 acres of land he had been granted, making him the largest landholder and stock-owner in the colony. See also, Whitaker, Ann-Maree, Joseph Foveaux: power and patronage in early New South Wales, (University of New South Wales Press), 2000.

[16] For Hunter’s instructions, see HRNSW, Vol. 2, pp. 227-234.

Military interlude: Grose and Paterson

Until Captain John Hunter, Phillip’s replacement arrived in NSW in September 1795, the colony was administered first by Major Francis Grose[1] (11 December 1792 to 12 December 1794) and then by Captain William Paterson[2] (12 December 1794 to 11 September 1795). The inhabitants were quick to take advantage of Grose’s unassertive, affable and indolent nature.[3] On assuming command he replaced civil magistrates with military officers, gave the senior officer at Parramatta control over the convicts there when he was not present, and appointed Lieutenant John Macarthur inspector of public works.[4] Some historians argue that the military officers deeply influenced his moves and one has asserted that Macarthur became the real ruler of NSW. Grose showed a greater concern for the welfare of his troops than Phillip had displayed. He increased the weekly ration to give them more food than the convicts and he improved their housing conditions. Without specific instructions and initially without authorisation, he issued land grants of about 100 acres to serving members of the corps who requested them.[5] In accordance with Home Office instructions he provided the officers with farms and, despite orders to the contrary, allowed each the use of ten convicts provisioned at government expense.[6] The civil staff was treated in the same ways as the military hierarchy. Emancipists and the handful of migrants who arrived were encouraged to take up small holdings on less favourable terms than previously laid down by the British government. The opening of the rich Hawkesbury River region, for which Grose must take some of the credit, induced large numbers to settle there.[7]

Sydney Cove, 1845

Behind these moves lay the conviction that the community stood to benefit far more from the exertions of private individuals than from government enterprise. Public farming had failed to produce sufficient for the settlement’s needs and although it was not abandoned, it was reduced. Although unimpressed with the quality of smallholders, Grose placed great trust in the officer farmers whose exertions, he felt, promised quickly to make NSW self-sufficient in foodstuff. This belief, as well as the desire to promote their well-being, disposed him to facilitate their pursuits. Partly through their efforts, partly through a rapid expansion in the number of small settlers, the number of acres farmed and livestock grazed increased during his regime.[8] By December 1794, NSW was still importing essential supplies and the threat of famine still hung over the settlement. The British government disliked the means by which Grose had helped the settlement’s progress. The reduction of public farming forced him to draw on the Treasury to buy food which the convicts might have raised for nothing; his practice of providing maintenance for the officers’ convict servants increased the burden on the stores and perturbed the Home Office who thought that such people should be supported by their employers.

Some of the civil and military staff began to engage in trade, especially in spirits at substantial profit to themselves. Although Grose derived no personal benefit from these practices, he was responsible for failing to curb them. Perhaps his advisers persuaded him to turn a blind eye to abuses that were to their advantage; but, since spirits proved an excellent incentive payment for convict labourers, it was probably for this reason that he allowed the officers to acquire it. Assessments of the other aspects of his rule have been strongly coloured by the writings of contemporaries such as Richard Johnson[9], Samuel Marsden[10] and Thomas Arndell but it is unlikely that New South Wales in this period experienced murder, drunkenness and rapine on the scale they indicated. The charges against Grose of making indiscriminate grants of land to his friends and fellow officers appear without foundation, as the grants made were in accordance with his instructions and to those officers who requested them. Smallholders were not exploited by the officers to the extent often suggested though Grose downsized the size of their land grants and some were better placed in 1794 than is generally realised, but the picture drawn by contemporaries was not entirely untrue.[11] By encouraging the officers’ farming pursuits and allowing them to engage in trade, Grose enabled them to secure a hold over the colony that they were soon to exploit in their own interests. This situation continued under William Paterson who granted 4,965 acres of land and made no attempt, either then or after Hunter assumed office, to check or to control the trading and farming activities of his officers. Unwittingly Grose and Paterson had helped to create problems that their immediate successors were unable to resolve.[12]

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[1] Fletcher, B.H., ‘Grose, Francis (1758?-1814)’, ADB, Vol. 1, pp. 488-489.

[2] Macmillan, David S., ‘Paterson, William (1755-1810)’, ADB, Vol. 2, pp. 317-319.

[3] Dundas to Grose, 30 June 1793, HRNSW, Vol. 2, p. 51 expressed concern about the secret sale of spirits.

[4] On Macarthur’s appointment, see HRNSW, Vol. 2, pp. 14, 226. See also, Grose to Dundas, 16 February 1793, HRA, Series I, Vol. 1, p. 416.

[5] HRA, Series I, Vol. 1, p. 438 lists the grants made by 31 May 1793 including four of 100 acres to serving officers.

[6] See, HRNSW, Vol. 2, pp. 209, 302-303, 324, 328.

[7] On developments in the Hawkesbury region, see HRNSW, Vol. 2, pp. 210, 238, 254, 307, 346. See also, Barkley-Jack, Jan, Hawkesbury Settlement Revealed: A new look at Australia’s third mainland settlement 1793-1802, (Rosenberg), 2009.

[8] On the land under cultivation, see HRNSW, Vol. 2, pp. 209, 302, 311, 482.

[9] Grose to Dundas, 4 September 1793, HRNSW, Vol. 2, pp. 64-65 described Johnson as ‘a very troublesome, discontented character’. Johnson’s response to Grose’s comments are contained in a letter to Dundas, 8 April 1794, HRNSW, Vol. 2, pp. 201-204 in which he explains the origins of his dispute with Grose.

[10] HRNSW, Vol. 2, p. 209 Grose expressed some concerns over Marsden.

[11] Grose to Dundas, 30 April 1794, HRA, Series I, Vol. 1, p. 474 stated that of the 59 grants made 1793-1794 seven were 25 acres and two 20 acres but the overwheming majority, thirty four, were for 30 acres.

[12] Grose to Dundas, 8 December 1794, HRNSW, Vol. 2, pp. 274-276 indicated his resignation and his decision to appoint Paterson as his replacement until Hunter arrived.

Hubris loses

Whether you agreed with the proposed House of Lords reform or not, one thing that has been outstanding in the past two days of debate has been the standard of the contribution by MPs.  Speeches have been lucid, considered and well-argued received with courtesy by those listening whether supporters or opponents.  In the absence of most of the front-bench ‘big guns’ and more accurately because of their absence, we have had two days of debate in the House of Commons rather than the normal Rottweilers howling at each other across the despatch box.  The result was a climb-down on the programme motion to limit debate to 10 days in the face of a massive Conservative revolt pushing the substantive bill into the autumn….essentially not a crisis averted but a crisis delayed.  The government may have won the second reading but it no longer has control of the timetable and there are obvious parallels with the Lords reform proposed by Harold Wilson in the 1960s that failed as the result of widespread filibustering.

Now the party blame game has begun.  The Labour Party has been ‘ostrich-like’, for instance.  Michael Gove’s defence of the Prime Minister’s authority  on Newsnight was combative but unconvincing.  It was clear that scores of Conservative (and one should add Labour) MPs were prepared to defy the party whip to vote against a measure they view as fundamentally flawed.  This cannot be seen as a victory for the executive however one construes it.  It was a victory for backbench opinion, a triumph of reasoned debate over executive hubris.  So there now are calls for consensus on reform but David Lawes, patronising in his tone, appears unwilling to accept the argument of the need for a referendum (it was included in all three party’s manifestos in 2010 so there’s no need).  This shows contempt for the people, perhaps of reflection of the loss of AV, and is eminently anti-democratic.  Yet again we appear to be in the grip of a political elite that knows what’s right for the people and that’s that. 

Without consensus, there is little chance of the bill passing the Commons without substantial time being expended and then the prospect of having to use of Parliament Act to force it through the Lords.  Now you may argue that there are other priorities than constitutional reform and waiting a few more years is a drop in the ocean given that the process of reform is already over a century old.  It is difficult to know how the issue will progress.  The current bill will encounter widespread opposition and is unlikely to pass the Commons, however long it is debated, in its current form and however poor the bill is now a mangled act will be even worse.  The only way forward is through consensus.  Many of those who opposed the programme motion and the bill did so because of the nature of the bill, the refusal to allow a referendum and the bill’s lamentable lack of clarity not because they opposed House of Lords reform per se.  Unless the government and opposition can agree on a bill including a referendum, then the saga of House of Lords reform could be with us for several more decades.

If Columbus had been a Liberal Democrat, he’d have discovered the mid-Atlantic!

One of the unenviable features of Liberalism has always been its sense of moral righteousness.  It’s the view that we’re right and, even if you don’t realise it, what we’re doing is for your benefit and if that means acting anti-democratically that’s fine…a modern version of Rousseau’s ‘being forced to be free’.  This has been evident in the proposed bill on House of Lords reform and in the lamentably weak speech Nick Clegg, an increasingly bankrupt political leader if ever there was one, yesterday proposing the legislation.  For a committed democrat to turn round and argue that, because all the parties agree about the need for reform, there’s no need for a referendum on a major issue of constitutional reform, is evidence of just how bankrupt he is.  Yes the parties do agree about the need for reform but they don’t agree about what that reform should be. His defence of no-referendum was so weak as to be laughable but then he’s already lost the AV referendum and would probably lose one on the House of Lords so why bother!!!  Well, precisely because he did lose.  The people may not always be right when it comes to referendums but that does not mean they shouldn’t be asked.

This matters because the proposed bill is a bad piece of legislation and should be opposed.  It is poorly drafted, imprecise, ambiguous and creates more problems than it resolves.  It replaces the patronage of the Prime Minister with the patronage of party, fails to define the relationship between Commons and Lords, seeks to introduce a system of PR based on the list system (one of the least democratic versions of PR: you vote for the party and we choose who sits) and is a recipe for constitutional conflict.  It also could well be a very expensive reform, something unwelcome in a period of austerity and for that reason alone logic should have dictated a delay until the economic crisis is resolved.  Constitutional reform, whatever its justification, is a luxury when there are more pressing issues.

 

The parliamentary supremacy of the House of Commons has, since the Parliament Act of 1911, been based on the fact that the Commons is democratically elected while the Lords consisted of hereditaries and latterly appointees who have no democratic mandate.  The proposed reform will establish elected members in both houses with equally democratic mandates.  In fact, you could argue that the Lords elected under a proportional system have a greater claim to represent the people than the Commons only elected under first-past-the-post.  So why should an elected Lords accept the supremacy of an elected Commons?  In additional, though elected through party patronage, because they cannot be re-elected after their 15 year terms, why should the Lords subject themselves to party discipline?  In fact, they could well be even more independent than the existing members (a good thing) but this would undoubtedly create constitutional conflict between the two houses both of which could claim a democratic mandate for their actions.  Prime ministerial patronage will still exist as PMs can appoint ministers to the Lords who would then remain for 15 years even after they lost their ministerial portfolios.  So a bloated Lords with its increasing membership of party hacks! 

The problem with the proposed reform is that it fails to reform the relationship between the two houses.  The Commons can no longer use the democratic mandate argument to justify forcing legislation through the Lords but this appears not to have figured in the thinking behind the legislation.  Yes constitutional crisis may well result on the development of constitutional conventions governing the relationship between the two houses as in the past, but the function of previous constitutional reform has been to enable either the government to act or the people to be represented.  This bill does neither and consequently fails what should always be the basis of constitutional change….clarity.

Sleepwalking to disaster

In the blurb for Christopher Clark’s forthcoming book, The Sleepwalkers: How Europe went to war in 1914, (Allen Lane), he suggests

‘Europe was racked by chronic problems: a multipolar, fractured, multicultural world of clashing ideals, terrorism, militancy and instability, which was, fatefully, saddled with a conspicuously ineffectual set of political leaders. He shows how the rulers of Europe, who prided themselves on their modernity and rationalism, behaved like sleepwalkers, stumbling through crisis after crisis…’

Now doesn’t that sound familiar!

Too much communication?

Two dicta of modern politics that have always struck me as pertinent are: ‘the art of the possible’ and ‘ a week is a long time in politics’, ascribed respectively to R. A. B. Butler and Harold Wilson.  If a week was a long time in politics in the 1960s, today in the age of 24/7 media and social networking it is an eternity with the consequence that politics has become increasingly reactive in character.  This means that communication and spin  and the need to always respond has circumvented the development and implementation of considered political judgements.  We all know the dictum ‘decide in haste, repent at leisure’ and this has increasingly become the unintended mantra of many politicians.  The wrong word, the bad interview like Chloe Smith’s with a remarkable sarcastic and arrogant Paxman (even by his often lamentable standards) last week , the unintended, unscripted and unconsidered tantrum (yes I thought the microphone was off!) will all return to bite politicians in their collective backsides.  But the result of all this media attention, especially the reactions of the ‘Westminster village’, is that increasing politics is not the art of the possible but simply the art of getting through the day without media disasters.  Politicians end up speaking to other politicians and to the media forgetting that the public beyond the hallowed halls actually want them to take a lead and make decisions that will benefit society at large.  This navel-gazing, introverted approach within a framework that is ostensibly extrovert is very damaging to people’s perceptions of politics and politicians.

Who knows best in a democracy?

Today, David Cameron said he would consider a referendum on the UK’s EU relationship, when the time was right.  But who decides ‘when the time is right’?  This question has bedevilled the debate (if that is what you can call it) in Britain since the 1980s over the EU.  Party leaders from Blair to Cameron have all, at one point or another and for different reasons, said that they thought a referendum would/might be necessary at some point over relationships with the EU and then have wedeled their ways out of it.  The Lisbon Treaty was not about fundamental constitutional change, so no referendum is necessary, for instance.  Shadow Chief Secretary to the Treasury Rachel Reeves refused to rule out ‘the possibility’ of her party holding a referendum once the future shape of Europe became clearer, but she said Mr Cameron's position on Europe was ‘a shambles’.  She may be right but then the position of party leaders on Europe has for several decades been a shambles; Cameron is simply one of several leaders who have held out the possibility of a referendum when the time was right.  It is not just cynics like me who suggest that ‘when the time is right’ really means ‘when I can win’. 

As politics appears, in the wake of successive banking and tax avoidance scandals and the bankruptcy of the notion that ‘we’re all in this together’, to be lurching towards a moral imperative, it is important to ask whether this is simply a political ploy to assuage public anger or whether there are moral standards that should be expected even in the essentially amoral world of politics.  There has been a seismic shift in away from a deferential acceptance of the merits of representative democracy towards one in which democracy is increasingly seen as something in which people should actively participate.  This poses a real dilemma for political elites in Britain and the EU.  Should they not act on the admitted short-termism of public opinion and plough on with their elitist pretensions of knowing ‘when the time is right’ or should they embrace it and revitalise what increasingly looks like a tired democracy and give it a fresh legitimacy in which political decisions are not simply what is possible politically but what is morally right?   It is true I think that the moral purpose of democracy has been ignored or mislaid in recent decades by the enormities that governments face and where elitist decision-making has downgraded the institutional basis of democracy.  It is easier for political elites to make decisions (and it is sometimes necessary that they should do this) not taking publically-expressed opinion into account and justifying this by saying that this is what they were elected to do.  But this is increasing regarded as a thread-bare explanation for political decision-making and one that the public recognise as such.  One reason for falling participation in elections, at whatever level, is the view that it doesn’t matter which politicians you elect, you get the same old thing.  Politics has become a process for doing things political elites decide are necessary rather than the expression of deeply held beliefs and moral standards.  It has been ‘de-ideologised’. 

The British political system has been grounded in representative principles for centuries: we elect people to represent us but they are not our delegates mandated to do as we wish but to represent our views and then make decisions based on their own consciences or party dictats.  When there were fundamental ideological differences between political parties, this proved a vibrant democratic structure but those fundamental ideological differences are today less clear as all political parties have moved to the middle ground.  Ideological differences and the political policies that stem from these differences are increasingly a matter of degree, subtle rather than stark, a case of angels on a pin-head.  We have a democracy in which politicians shade into each other, frequently agree that something needs to be done but only disagree about the details not the principles: for instance, austerity or slower austerity.  It is the vision that is lacking, the overarching belief that politics is about producing a better world rather than just tinkering about at the edges.  In that respect, the political elites are no longer in touch with the aspirations of their peoples and in that respect, ‘possibility’ and ‘when the time is right’ represent a bankrupt mantra of an increasingly bankrupt democracy.  Whether you agreed with them or not, politicians such as Margaret Thatcher, Michael Foot, Nye Bevan, Lloyd George and Winston Churchill took a principled moral as well as political stand on issues in which they believed, something that is sadly lacking in many politicians today for whom self-aggrandisement seems to be their sole motivation.  If representative democracy is to survive in Britain, it needs political leaders with principles that people will follow, not out of deference, but out of conviction. 

Phillip establishes a settlement (just)

Far from being able to fall back on his aides in the initial trying years, Phillip had to struggle against widespread defeatism and occasional opposition.[1] The attitude of the marine officers and especially Major Ross[2] affected their men and possibly the convicts who had least cause of any to feel content with their lot. The officers, construing their duties as being primarily military, caused Phillip much difficulty. They refused to help in supervising the activities of the convicts even though, through the oversight of the British authorities, few suitable persons were available and they objected to having to sit on the Criminal Court.

Officers decline the least interference with the convicts, unless when they are immediately employed for their (the officers) own conveniency...they did not suppose that they were sent out to do more than garrison duty, and these gentlemen...think the being obliged to sit as members of the Criminal Court as hardship...[3]

Their discontent was heightened by the fact that unlike emancipists they were denied free grants of land and lacked the opportunity to secure any of the advantages traditionally associated with colonial service. Ross made matters worse by his high-handed actions, such as the arrest of five of his officers that created friction in the mess and prompted Lieutenant Ralph Clark[4] to describe him as ‘the most disagreeable commanding officer I ever knew’.[5] Although at first on reasonable terms with Phillip, Ross soon became quarrelsome, acting both as a focus of discontent and a major irritant. He supported and encouraged his fellow officers in their conflicts with Phillip, engaged in clashes of his own, and complained of the governor’s actions to the Home Office. Phillip for his part was anxious in the interests of the community as a whole to avoid friction between the civil and military authorities and endeavoured to placate Ross, but without effect.[6] In the end he solved the problem by ordering Ross to Norfolk Island on 5 March 1790 to replace Philip Gidley King, the commandant there, whom he had previously decided to send to England to report personally on the establishment.

Partly to counter this attitude, in his dispatches Phillip highlighted favourable developments and concealed the personal doubts that he experienced from time to time. Not the least of his accomplishments was to help to keep faith in the venture alive in official circles in London and provide the optimism as well as the leadership without which morale in NSW itself might have crumbled completely.[7] Phillip’s enthusiasm is all the more remarkable in view of the fact that during his five year term of office the colony assumed a shape that was not in accord with his wishes. Instead of the free settlers whom he sought to encourage with grants of from ‘five hundred to one thousand acres’ and the assistance of ‘not less than twenty men’ maintained at government expense for two years, only convicts arrived. This was not surprising. When the Home Office finally dispatched Instructions to Phillip in August 1789 authorising him to give grants to migrants it was on terms far less generous than he had contemplated. People leaving England lacked any real incentive to come to NSW and preferred the more accessible parts of the empire untainted by the stigma of convictism. Only thirteen free settlers left for Sydney in the first five years and none of these landed until after Phillip’s departure.[8] The governor had expected several advantages to flow from the presence of settlers. Besides forming the basis for the kind of settlement he hoped would emerge, he thought they would also prove of practical value for the penal standpoint by assisting in administration and convict control, by employing the prisoners and by setting an example for them to follow. Inspired by the profit motive, they would quickly make the settlement self-sufficient in basic foodstuffs. Their failure to materialise forced Phillip to depend on methods which he would have preferred to drop and that further increased his problems.[9]

Between 1788 and 1792 about 3,546 male and 766 female convicts were landed at Port Jackson and handed over by the contractors to the governor, who faced the task of deciding how their sentences were to be served. Anxious to keep costs low the British government insisted that they be disposed of in such a way as to involve the Treasury in a minimum of expenditure. Previously, in the American colonies, settlers had taken them into employment, but in the absence of private employers in New South Wales most convicts remained in government hands throughout the first five years and Phillip found himself responsible for directing their energies. The task was not made easier by the characteristics of the convicts themselves and many were unfit subjects for an experiment in colonisation. Not unnaturally they resented being wrenched from their homeland and taken to a harsh, hostile and uncivilised land. Phillip found them lazy and anxious to escape work by any means possible. Few were skilled artisans[10] or knew anything of agriculture and each of the fleets that arrived up to 1792 contained a high proportion of aged and sick who were unfit for work. [11] Worst of all was the Second Fleet that arrived in June 1790 after losing more than a quarter of its ‘passengers’ en route through sickness. Phillip’s reports on the unscrupulous behaviour of the private contractors helped to produce improvements, but not until after the Third Fleet had arrived bearing convicts whose physical condition appalled him once more.

A serious crisis occurred in 1790 after the wreck of the supply ship Guardian off the Cape of Good Hope; although the situation eased in 1791, it remained uncertain and even when the full ration could be issued.[12] Under such conditions the health of the convicts deteriorated and they found prolonged manual labour difficult. Faced with a lack of suitable personnel to act as supervisors Phillip selected superintendents from among the better-behaved convicts, placed them under the few free men in the settlement, ex-marines, a few from the ships’ crews, and some whose sentences had expired. He encouraged gardening.[13] He had dispatched a party to Norfolk Island under Philip Gidley King within a month of his arrival, and constantly reinforced it when he found that the island was more fertile than the land around Sydney.[14] He exercised great care in distributing rations and insisted on equality for all regardless of their standing. The governor based his actions on no particular set of beliefs except a broad humanitarianism. By nature self-sacrificing he was not prepared to inflict greater suffering on others than on himself and he felt that gradations in the ration were unfair in time of scarcity. Phillip’s measures helped to keep the settlement alive in its early years. By 1791, only 213 acres were under crop and the number of farm animals amounted to only 126 head, for some of the cattle brought out had strayed, while others had died or been slaughtered. The building programme, by contrast, had advanced more satisfactorily, resulting in the erection of dwelling places for the governor, the officers, the convicts and some of the troops, together with several store-houses. Having completed these and other essential tasks Phillip was able to give more attention to farming. The area cultivated by government labour expanded much more rapidly after 1791 and by October 1792 some 1,017 acres were under crop on the public domain; although livestock was still scarce important advances had been made towards the attainment of self-sufficiency in grain. The community was still vitally dependent on overseas supplies for most of its needs, but no longer was survival thought to be impossible.

In 1791 the marines were replaced by the New South Wales Corps.[15] In the light of later events this may appear unfortunate, but Phillip’s relations with the Corps, though marked by occasional disagreement, were reasonably pleasant, partly because its officers had not then acquired the economic interests that led to conflict with later governors.[16] Effective discipline was a vital necessity in an isolated community where convicts far outnumbered their gaolers and where it was impracticable to segregate them behind bars. Phillip housed the convicts in a series of huts so arranged that they could be policed at night; but the watch of necessity had to be drawn mainly from among the better convicts, and this caused further trouble with the marines who complained bitterly on the odd occasion when a convict policeman detected one of their number breaking the law. Offences committed within the colony were, if only minor, tried by the magistrates, or when more serious by the Civil and Criminal Courts. Phillip sat on neither bench, but he was able within limits to determine their composition and to vary their sentences, thereby influencing the course of justice.[17] Before leaving England he had stated his opposition to the death penalty save for murder and sodomy, which crimes he felt best punished by handing guilty persons over to be eaten by ‘the natives of New Zealand’. This harsh sentence was never imposed, but there were some executions, particularly for the theft of food in time of scarcity.[18] More usual was the lash, then a standard punishment in the army and navy, or committal to a gaol-gang.[19]

Phillip’s second Commission dated 2 April 1787 had given him the power of granting land to approved persons, defined in his first Instructions as former convicts. The British government was anxious to encourage people of this kind to remain at Port Jackson and for this reason offered them small plots of land and full maintenance during the early months of operations. The Home Office also indicated its willingness to make grants to the non-commissioned officers and privates of the marines who might elect to remain after completing a tour of duty, and to any migrants who might arrive. Phillip was ordered to examine the soil, report on its quality and suggest terms on which it might be alienated. Without fully waiting for his advice, however, the secretary of state dispatched on 22 August 1789 fresh Instructions on the granting of land. The only residents not permitted to own land were the civil staff and military officers, whose pleas for this concession were not satisfied until after Phillip had departed. The governor himself had viewed their requests with no great enthusiasm. While willing to allow them to grow foodstuff in time of shortage or run livestock on plots of crown land he was not happy at the thought of their becoming property owners. He feared their attention might be distracted from their duties. He realised that they would wish to employ convicts, and these he thought might be left too much to their own devices. Shortly before leaving England he stressed that insufficient convicts were available to make it possible for the officers’ likely demands to be met. Phillip was also reserved in his attitude towards the issuing of land grants to emancipists, for he rightly felt that many would never succeed at farming.

On 11 December 1792 Phillip sailed for England in the Atlantic to seek medical attention for a pain in his side that caused him constant suffering.[20] His work in New South Wales has been widely commended and, given the circumstances under which he was obliged to operate, it is difficult to see how he could have accomplished more than he did. Many of his hopes, including those for the encouragement of whaling off the coast which he recommended very strongly, were not realised.[21] Despite these frustrations he retained his optimism, displaying a resilience and sense of duty that carried him through periods of great difficulty and physical pain. However, he left when two developments loomed that were to dismantle much of his work. One consequence of the discovery of the settlement by overseas merchants was that increasingly they brought cargoes including liquor for sale. This may have given regularity to the supplies brought to the colony but Phillip recognised the dangers of permitting the convicts to obtain spirits. The one occasion, in October 1792, when he allowed it to be sold to the other residents confirmed his fears, for there was widespread drunkenness and disturbance.[22] The episode was not repeated but, had he stayed much longer, it is doubtful Phillip could have countered the many problems that were to arise from the liquor trade. Similarly his departure preceded by only two months the arrival from London of orders allowing civil and military officers to own land[23], an event that provided these men with an opportunity to promote their interests and heightened the possibility of their conflict with a governor anxious to favour no single element in the community. It was perhaps fortunate that Phillip was unable to follow his original intention of returning to Port Jackson once his health was restored, but medical advice compelled him formally to resign on 23 July 1793.[24]

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[1] Egan, Jack, Buried alive: Sydney 1788-1792: eyewitness accounts of the making of a nation, (Allen & Unwin), 1999 contains valuable accounts from the early years of settlement.

[2] See, for example, HRNSW, Vol. 1, (2), pp. 262-265. See also, HRNSW, Vol. 2, pp. 383-384 for Ross’ instructions dated 2 March 1787.

[3] HRNSW, Vol. 1, (2), p. 153.

[4] Hine, Janet D., ‘Clark, Ralph (1762-1794)’, ADB, Vol. 1, pp. 225-226.

[5] Cit, Egan, Jack, Buried alive: Sydney 1788-1792: eyewitness accounts of the making of a nation, p. 76.

[6] This was evident in Phillip to Sydney, 16 May 1788, HRA, Series I, Vol. 1, pp. 36-48 detailing the court martial of Joseph Hunt. Phillip stated that he ‘was not informed of the courts being under arrest till the next morning, when he came to inform me, and I used every means in my power to prevent a general court-martial, the inconveniences of which were obvious. Any accommodation being declined...’

[7] For example, Phillip to Sydney, 9 July 1788, HRA, Series I, Vol. 1, p. 51, ‘I could have wished to have given your Lordship a more pleasing account of our present situation; and am persuaded I shall have that satisfaction hereafter; nor do I doubt but that value of this country will prove the most valuable acquisition Great colony. Britain ever made; at the same time no country offers less assistance to the first settlers than this does ; nor do I think any country could be more disadvantageously placed with respect to support from the mother country, on which for a few years we must entirely depend.’

[8] HRNSW, Vol. 2, p. 15 lists five who arrived on the Bellona in early February 1793.

[9] The lack of free settlers is a persistent theme in Phillip’s correspondence: see, HRNSW, Vol. 1, (2), pp. 153, 177, 191, 207, 299, 347, 470, 534, 557 and 597. Letters from G. Matcham, HRNSW, Vol. 1, (2), pp. 590, 615 indicate that there was some interest in Britain in exploiting the agricultural deficit in the colony but that the response from government was tardy.

[10] There was, for example, a lack of carpenters; see, HRNSW, Vol. 1, (2), pp. 146, 183. See also comments in HRA, Series I, Vol. 1, p. 81 about individuals as ‘indifferent carpenters’ and ‘tollerable sawyers’.

[11] The problem of the lack of artisans and farmers identified by Phillip was quickly acknowledged in London and ‘it is advisable that twenty-five of those confined in the hulks...who are likely to be the most useful should be sent out in the ship [Lady Juliana] intended to convey provisions and stores’: see Lord Sydney to the Lords of the Admiralty, 29 April 1789, HRNSW, Vol. 1, (2), pp. 230-231.

[12] The problem of feeding the population at Sydney Cove as persistent until 1792, see HRNSW, Vol. 1, (2), pp. 173, 223, 299, 326-327, 377, 382, 557, 570, 596, 644, 654.

[13] Gardens were given to marines and convicts: HRNSW, Vol. 1, (2), pp. 189, 362.

[14] Phillip to Dundas, 4 October 1792, HRNSW, Vol. 1, (2), p. 661 contained an enclosure with details of land grants. 104 had been made at Norfolk Island and this contrasted with only 66 at Parramatta.

[15] On the establishment of the NSW Corps, see HRNSW, Vol. 1, (2), pp. 249-251; see also Grenville to Phillip, 24 December 1789, HRA, Series I, Vol. 1, pp. 132-133.

[16] Phillip to Sydney, 20 February 1789, HRA, Series I, Vol. 1, p. 106 contained the following prophetic statement: ‘When this circumstance is laid before Lord Sydney, I doubt not but his Lordship will see that the civil Government of this colony may be very materially affected by directions of such a nature being given to the commandant of the detachment, and by him carried into execution without the knowledge or consent of the Governor, and which I presume never was intended by Lord Howe.’

[17] Phillip to Sydney, 5 June 1789, HRA, Series I, Vol. 1, pp. 107-111.

[18] The number of executions was relatively small; four in 1788 and two in 1789: Phillip to Lord Sydney, 12 February 1790, HRNSW, Vol. 1, (2), p. 298.

[19] Phillip was given the authority to remit sentences in November 1790, HRA, Series I, Vol. 1, pp. 208-212.

[20] Chief-Surgeon Knox to Sir A. S. Hamond, (one of the Commissioners of the Navy), HRNSW, Vol. 1, (2), p. 675; see also, pp. 329-330, 422 and 483 for requests for leave of absence.

[21] For Phillip’s observations on the potential of whaling, see HRNSW, Vol. 1, (2), pp. 612-613, 665.

[22] Phillip’s initially supported the import of rum; see, Phillip to Dundas, 2 October 1792, HRNSW, Vol. 1, (2), p. 648, ‘...for it is a bounty which many of the people deserve and to the undeserving it never will be given...’

[23] Grose to Dundas 16 February 1793, HRNSW, Vol. 2, p. 15. See also Dundas’ instruction concerning land grants in his letter to Grose, 30 June 1793, HRNSW, Vol. 2, pp. 50-51.

[24] Phillip to Dundas, 23 July 1793, HRNSW, Vol. 2, pp. 59-60.

In, out or shake it all about

In 1975 I campaigned for a ‘yes’ in the referendum on what was then the Common Market.  In the past decades my attitude to the EU has vacillated and this has especially been the case since 2000.  It is true that I campaigned for a free market area and I still have faith in that proposition and I was prepared to relegate my concerns about the anti-democratic character of the EU to one side.  The economic crisis since 2008 and the almost complete failure of the EU elite to resolve the euro crisis, other than throwing money at countries with sovereign debt problems in return to austerity measures, leads me to question whether membership of the EU is still in Britain’s national interest.  The notion of strength in unity that underpinned the whole idea of the EU is cracking and all the centre can suggest is that what is needed is greater European integration. 

One reason why many in Britain are sceptical about the direction in which the EU seems hell-bent on going is that we have, for all its defects, an established democratic system in which the people play a significant role and whose voice cannot be indefinitely ignored.  Demands for a referendum which, irrespective of what the question is, will be about whether Britain should be in or out of the EU, have grown in urgency and support since the mid-1990s, a situation aided by the failure of successive governments, despite their promises, to accede to calls for a vote.  This reflects the democratic deficit long identified as at the centre of the EU.  Take the debate over the new EU constitution in the 2000s: once the EU elite recognised that it would lose referendums on a constitution, it changed the rules and pushed ahead with much of the constitution in the Treaty of Lisbon that did not need referendums for national ratification.  Or, as in Ireland, when a referendum defeats an EU development, you renegotiate and vote on it again (and presumably again) until you give the answer the EU wants.  Those committed to the European project have never trusted ‘the people’ to give the answer they wanted and so have either circumvented or ignored them.  While this may be acceptable to many in Europe (though even here support seems to be waning ), it goes against everything that most people in Britain regard as democratic.  It’s not just that we’re being awkward (though there is an element of ‘Little England’ in people’s thinking) but that our history and constitutional development has for the past two hundred years at least been based on the idea that Britain is involved in Europe but that we are not actually part of Europe, a consequence of our (not just geographical) insularity.

Within the next five years or perhaps sooner, there will be a referendum in Britain over the EU and it will be an in/out referendum (whether that is the question or not).  The question is whether Britain is better inside the EU or whether we would be better served by negotiating a free trade agreement with EU members and remain outside.  Whatever the political case for greater European integration, and there is a case to be answered, what appears to matter for many people in Britain is whether our economy will be adversely affected by not being in the EU.  It was why most people supported the yes campaign in 1975 and it is still the determining factor in many people’s reasoning.  I’m not convinced that even if the EU became a more democratic and accountable institution that it would gain sufficient support in Britain.  Despite the continued commitment of many within our economic and political elites to membership of the EU, if not the European project, when there is a referendum I do not see those elites being able to persuade most people of the case for remaining in Europe.  It could well be the wrong decision but at least the principle of British democracy will have been expressed.

Why examination reform is essential

Is the time right for a debate on the character of the examination system at 16+?  If the YouGov survey in today’s Sunday Times is indicative of the public’s attitude, the answer is an unequivocal yes.  Half of those surveyed thought a return to O Level was a good idea compared to 32% who supported the existing GCSE.  The response to should there be one national examination board was even clearer with an overwhelming majority in favour of this step.  So it appears that, despite the way in which the debate was initiated, Michael Gove has hit a raw nerve in public opinion and the public popularity for the proposal should be sufficient to catapult it forward. 

Do we need an examination system with greater rigour?  Well, yes as many students leave school at 16+ knowing very little and not knowing how to apply the little that they do know. The problem lies with the notion of a return to O Levels.  You simply can’t turn the clock back to what many people see as a golden age.  Were O Levels and CSEs that good?  Having taught both I’m not convinced.  Both encouraged the assimilation of knowledge but did little to develop effective thinking and passing examinations depended less on critical thinking than the ability of regurgitate factual materials.  GCSEs, by contrast, attempted, but with limited success, to develop thinking and research skills with a consequent dilution and fragmentation of factual material.  So what we need is an examination system that successfully combines the development of critical thinking and research and communication skills with coherent and ideally holistic factual content.  In History, this means courses that meld What? Why? and How? with an understanding of historiography and analysis of sources that are tested through extended writing based on research, essays and source analysis within a framework of critical thinking weighted 30 per cent, 40 per cent and 30 per cent.  Three elements: the first teacher-assessed and moderated more rigorously than at present; the second and third elements through written examinations at the end of the course.  I would also be inclined to apply the same criteria to Advanced Level increasing the number of written examinations to three (two essay papers and one source paper) against at the end of the course ending the need for AS and modular structures.  This would allow students at both 16+ and 18+ to take courses unhindered by the disruptive nature of modular courses (all that time spent preparing for and doing examinations and resits) and would allow teachers to teach the subject unfettered in the knowledge that the exams would be at the end.  That would be really liberating and would allow the development of detailed understanding of subjects that is impossible within a modular system.

 

The question is whether we need to go back to two qualifications at 16+ as existed before 1987.  I’m inclined not to.  It was one of my most difficult tasks to decide whether students should do O Level or CSE and there was no guarantee that I’d get it right.  The problem was that once a decision had been made it was difficult to move from O Level to CSE and vice versa.  In addition, parents are more empowered educationally today than they were in the 1970s and 1980s when I remember having fairly ferocious discussions with parents about my decisions.  Having two qualifications could well damage the often tenuous relationships between teachers and parents who now see themselves rather more as consumers than was the case in the past.  Going back to parallel qualifications at 16+ could well raise more problems than it solves.  The solution lies in something that has already been tried: tiered examinations.  This has the advantage of leaving the final decision on which tier is entered until the last moment and the decision will be based on quantifiable evidence of performance during a course.  This will not entirely negate parental objections but at least teachers will have evidence to support their decisions that can be presented to parents to justify their choices. 

As for a single national examination board that the survey strongly favoured, this is now essential.  It will remove the iniquitous system of deciding to do examination board A’s courses because the pass rate appears to be better and would also ensure that standards could be uniformly applied (in so-far as they can ever be uniformly applied).  The existing examination boards would simply become regional deliverers of the national board’s courses responsible for administration and marking under national supervision in their particular region. 

The past is a distant land

There is the past and there is history and in-between there lies the historian though this is no longer simply the preserve of historians whatever academe suggests. The argument goes as follows. People in the past left traces, wittingly or unwittingly, of their lives and experiences in the form of sources material that historians trawl to obtain the evidence that forms the foundations on which they built their construction, reconstruction or deconstruction of the past. The aim in this process is to get ‘as close’ as possible to narrating and explaining what actually happened in the past and, as a result, to establish some sort of true meaning of the past.  Others suggest that historians are story-tellers involved in an essentially literary activity interrogating texts to construct their view of the past.  Let me be clear, I do not see myself as a historian in a postmodernist context, not because I object to the postmodernist perspective even though it is frequently expressed in language that hides more than it reveals but because I am not convinced that postmodernism had added much that is valuable to the practical ‘craft of history’.  Few if any historians today would claim that their work is the definitive answer or that they are doing more than expressing their own view of what happened in the past.  They do not seek ‘the truth’ but merely seek to explain what happened recognising that their explanation will itself be subject to review and revision by others.  In that respect we are perhaps all postmodernists!

The problem it seems to me lies less in what historians do but their failure to address the issue of what the past actually is.  At one level, the past never actually existed.  People do not live in the past, they live in their presents with all the chaos that this implies.  Neither did people in the past live in history; they did not spent their lives thinking what the causes and consequences of their actions and thoughts would be.  Historians impose rationality on lives that are generally far from rational or logical.  It is historians who ‘make’ history with all the ambiguity that this implies and we interrogate history to provide an explanation for our presents…what Marwick called ‘history as a social necessity’.  Our views of our presents are partial and generally partisan in some form or another and so were people who lived a hundred years ago in their own presents and so on.  We/they cannot/could not ‘know’ that our actions could/did have particular consequences.  We look back to our pasts through the refracting mirror of our presents and our perceived (and invariably wrong) perceptions of our possible futures.  Unlike the newspaper announcing that next week’s fortune-tellers conference is cancelled due to unforeseen circumstances, our hindsight and foresight are limited by our understanding or our presents.  The past may well by a distant land but so are/were our/their presents. 

Birth, death and taxes

The chapter on tax rebellion in my forthcoming Resistance and Rebellion in the British Empire, 1600-1980,  begins in the following way:

‘In late 1789, Benjamin Franklin wrote:

Our new Constitution is now established, and has an appearance that promises permanency; but in this world nothing can be said to be certain, except death and taxes. [1]

….From when taxes were first levied, people have found ways to evade paying for reasons that have been honourable, ideological, greedy and selfish. People have evaded taxes illegally, some have resisted paying taxes and others have simply refused. Taxation is almost by definition unfair. It is imposed on people by government generally without consultation and is frequently used to pay for things of which people do not approve or do not need. Getting the level of taxation in society right, or at least politically acceptable, has always been a problem for government. If the level of taxation is set too low then it may have insufficient funds to rule effectively with the likelihood of the same consequences as setting taxes too high; anger, discontent and even resistance. ‘

How many of us if asked whether we would like to pay less tax would say no!  How many of us if asked whether we would like to pay less tax in a scheme recognised by HMRC would say no!  Most of us of course have no option but to pay our taxes since we cannot afford the fees paid by tax revenue experts who know the vagaries of taxation law to do this.  But given the option, most of us would and it’s hypocritical to say we wouldn’t.  Let us be clear, the amount of tax we pay is a legal question and if we use taxation law to avoid paying taxation that is legally acceptable.  But is it morally acceptable or more accurately should taxation be subject to moral as well as legal rules?  The past few years have seen the growth of moral pressure on individuals and institutions to ensure that they do not have unacceptably high levels of income or pay their ‘right’ level of taxation.  Should we, as a society, ensure that people do not have unacceptably high incomes or avoid paying tax?  Certainly.  If so, how should we do this?  Well not by moral pressure since it ensure that individuals and institutions are effectively shamed into earning less or paying more taxes.  Moral pressure is arbitrary, generally ill-defined if defined at all and resembled the charivaris of the past, its scapegoats individuals and institutions.   It makes good headlines in the media but does not address the real issue: if the law allows me to avoid paying tax or to earn exorbitant sums of money why should I not do so?  If you don’t like taxation law as it stands, change the taxation law and stop whingeing when individuals and institutions act within the rules to pay less tax.  We’d all do it given the opportunity. 

 

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[1] Franklin to Jean-Baptiste Leroy, 13 November 1789, Sparks, Jared, The Works of Benjamin Franklin, with Notes and a Life of the Author, 10 Vols. (Hilliard, Gray and Company), 1836-1840, Vol. 10, pp. 409-410. Daniel Defoe was the first author to use words to this effect in The Political History of the Devil, (T. Warner), 1726, p. 246, ‘Things as certain as death and taxes, can be more firmly believed.’

Captain Arthur Phillip and the law

Although law courts were established when the colony was founded, for the first thirty-five years, the Governors were absolute rulers. The British Parliament could control their authority, but England was 12,000 miles and eight months away by sea: by the time a complaint was heard and decided, nearly two years might have gone by. Phillip’s first and second Commissions, dated 12 October 1786 and 2 April 1787, appointed him as the representative of the Crown in an area embracing roughly the eastern half of Australia together with adjacent Pacific islands.[1] Before he left for NSW, Phillip received his Instructions (composed by Lord Sydney) from King George III, ‘with the advice of his Privy Council’. The first Instructions included Phillip’s Commission as Captain-General and Governor-in-Chief of New South Wales. An amended Commission, dated 25 April 1787, designated the territory of New South Wales as including ‘all the islands adjacent in the Pacific Ocean’ and running westward to the 135^th meridian, that is, about mid-way through the continent.[2] The Instructions advised Phillip about managing the convicts, granting and cultivating the land, and exploring the country. The Aborigines’ lives and livelihoods were to be protected and friendly relations with them encouraged, but the Instructions make no mention of protecting or even recognising their lands. It was assumed that Australia was terra nullius, that is, land belonging to no one, an assumption that shaped land law and occupation for more than 200 years

Phillip[3] was responsible solely to his superiors in London and was expected to carry out their orders as embodied in his first Instructions of 25 April 1787, his ‘additional’ Instructions of 20 August 1789[4] and official dispatches. Within these limits his powers were absolute. The Crown vested him with complete authority over the inhabitants and gave him the right to promulgate regulations touching practically all aspects of their lives. He combined executive and legislative functions and could remit sentences imposed by the Civil and Criminal Courts established under a warrant issued on 2 April 1787. Only the crimes of treason or wilful murder were exempt from this provision, but even here he could grant a reprieve while awaiting advice from London. Distance from Britain and the relative indifference of the Home Office towards the affairs of the infant colony enlarged even further the scope of the governor’s initiative and increased his responsibilities.

The New South Wales Courts Act 1787 established a legal system, providing for the establishment of the first NWS Courts of Criminal and Civil Jurisdiction by executive action. [5] It ensured that British law landed with the First Fleet in 1788[6] and that the convict colony had the basis for law enforcement. The Act also allowed for a more ‘summary’ legal proceeding than was usual, adapting court procedures to the conditions of the new convict colony. The Court was established by the Letters Patent of 2 April 1787. [7] The Charter of Justice 2 April 1787[8] provided the authority for the establishment of the first New South Wales Courts of Criminal and Civil Jurisdiction. The Charter of Justice is in the form of Letters Patent providing for a Deputy Judge-Advocate and six court officers to be appointed by the Governor and the establishment of a Civil Court. The Governor was required to give his permission to any death sentence imposed by the Court, and was empowered to give pardons. The Civil Court had the power to deal with disputes over property and had jurisdiction over wills and estates. Although the British intended to transport English law and legal proceedings along with the convicts, in practice there were significant departures from English law in the new and distant Colony. Notably, the first civil case heard in Australia, in July 1788, was brought by a convict couple. They successfully sued the captain of the ship in which they had been transported, for the loss of a parcel during the voyage.[9] In Britain, as convicts, they would have had no rights to bring such a case. In reaching this decision, the Judge Advocate, David Collins, ignored the English common law rule of felony attaint.[10] Under that rule, those who had been sentenced to death for felony were unable to hold property, give evidence or sue in the court. Henry and Susannah Cable had been sentenced to death and their attaint should have followed them for the full period of their transportation. Thus the ambivalent relationship between Australian and English common law began with the very first case. [11]

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[1] HRNSW, Vol. 1, (2), pp. 24-25, 61-67, HRA, Series I, Vol. 1, pp. 1-2.

[2] HRNSW, Vol. 1, (2), pp. 84-91, HRA, Series I, Vol. 1, pp. 2-9.

[3] Fletcher, B.H., ‘Phillip, Arthur (1738-1814)’, ADB, Vol. 2, pp. 326-333, Mackaness, G., Admiral Arthur Phillip, (Angus & Robinson), 1937, Thea, Stanley, Arthur Phillip: Australia’s Founding Governor, (Movement Publications), 1985 and Frost, Alan, Arthur Phillip: His Voyaging 1738-1814, (Oxford University Press), 1987 provide contrasting biographical material. See also, Stockdale, John, The voyage of Governor Phillip to Botany Bay: with an account of the establishment of the colonies of Port Jackson & Norfolk Island, 3^rd ed., (Printed for J. Stockdale), 1790. See also Clune, David and Turner, Ken, (eds.), The Governors of New South Wales, 1788-2010, (Federation Press), 2009 on Phillip and subsequent governors.

[4] HRNSW, Vol. 1, (2), pp. 256-259, HRA, Series I, Vol. 1, pp. 9-16.

[5] House of Lords Record Office: 27 George III, 1787; HRNSW, Vol. 1, (2), pp. 67-70.

[6] ‘8^th February 1788: The criminal court, consisting of six officers of his Majesty’s forces by land or sea, with the judge advocate, sat for the first time, before whom several convicts were tried for petty larceny. Some of them were acquitted, others sentenced to receive corporal punishment, and one or two were, by the decision of the court, ordered to a barren rock, or little island, in the middle of the harbour, there to remain on bread and water for a stated time.’ Ibid, White, John, Journal of a Voyage to New South Wales, pp. 126-127

[7] Letters Patent are written instrument granting authority from the Crown, not enclosed but open to view, with the seal of the sovereign at the bottom. As the provision for establishing a Civil Court had not been included in the Act there was no legislative basis for its foundation.

[8] States Records, New South Wales: SRNSW: X24, HRNSW, Vol. 1, (2), pp. 70-76.

[9] Cable/Kable v Sinclair, July 1788 was the first civil action brought in Australian legal history. In it, two convicts successfully sued the master of one of the first fleet ships for the loss of their baggage on the voyage. In doing so, commentators argue, the colony began with the rule of law rather than the simple rule of the lash. See, Kercher, B., Debt, Seduction and Other Disasters: the Birth of Civil Law in Convict New South Wales, (Federation Press), 1996, pp. xviii-xix and Neal, David, The Rule of Law in a Penal Colony: Law and Politics in Early New South Wales, (Cambridge University Press), 1991, pp. 1-8.

[10] ‘Collins, David (1756-1810)’, ADB, Vol. 1, pp. 236-240. See also, Currey, John, David Collins: a colonial life, (Miegunyah Press), 2000.

[11] On the early development of a legal system in NSW, see, Nagle, John F., Collins, the courts & the colony: law & society in colonial New South Wales 1788-1796, (Indiana Press), 1996.

A question of legitimacy

There is an increasing chasm between the attitudes of political elites and the public at large across the globe that the economic crisis since 2007 has exacerbated.  What was acceptable behaviour by the elites in 2002 is no longer the case in 2012 largely because those elites have, with some justification, been blamed for a crisis in living standards for which some, at least, still appear to be in denial.  Corruption and sleaze challenges their moral legitimacy; economic crisis challenges their economic competence while the failure to sort out the problem threatens their political legitimacy.  There is a growing sense that not only are existing political elites unable to find solutions to global economic problems but that the scale of the problems is so great that any solutions they do come up with have little long-term effect.  It’s not simply a question of austerity and finding growth mechanisms that are sustainable, it’s the broader question of the legitimacy of the market economy.

At the root of the problem is the democratic deficit that lies at the heart of democracy.   This is nothing new.  There has always been a tension between the political elites elected within a democratic system and the often transient concerns of the electorate.  When economic conditions are good this is not a problem but when the economy slumps, the electorate seeks to assert its democratic credentials over and above those of the elites it elected and now seeks to control.  That the feeding frenzy associated with MPs’ expenses and phone hacking occurred after the economy slumped is no coincidence and is an attack on the moral competence of the elite.  The long recognised democratic deficit at the heart of the EU may have been acceptable (barely) when the organisation appeared to function at least competently (if not efficiently) but the euro crisis has made clear what most of us have known for decades that the EU was never an economic project but a political one for greater European integration and this challenges not only the notion of democracy but the nationalism of individual states.  

It is clear than the recreation of Christendom as Eurodom is unacceptable to most Europeans but the elite ploughs on regardless unwilling to listen to the people and unable to countenance that there could be an alternative vision.  When the people do assert their power, as for instance in the Irish referendums on the Lisbon treaty, then they are asked to vote again until they give the ‘right’ answer.  The attitude of successive British governments to a referendum on the EU (whatever the question) is evidence that the elite does not trust the people to come up with the right answer.  In the case of the Lisbon treaty this led to weasel words from the government that the treaty did not represent fundamental constitutional change (something few believed) and that, as a result, no referendum was necessary.  All you have to do is read the Lisbon treaty (something most MPs admit to never doing) to recognise that it did represent fundamental constitutional change and that a referendum should have occurred.  Politicians, it appears, expect us to trust them but they are unwilling to return the favour.  The consequence of this prevarication could well be that when there is a referendum, increasingly probable in the next five years, those wishing to come out of the EU could win, something that ten years ago would not have been the case. 

Captain Cook and Australia

Captain James Cook made three voyages to the South Pacific between 1768 and 1779 and on each occasion carried ‘Secret Instructions’ from the British Admiralty. These contained an outline of the route of the voyage, described the activities he and his men were to undertake, and the manner in which he was to report his progress. They were secret in that they held the real intentions and plans for the voyage, while other papers issued would be made available on demand to show Cook’s authority for his command and the enterprise. On his first voyage, Cook sailed in the Endeavour to Tahiti to assist in the scientific observation of the transit of the planet Venus and then sailed south in search of the fabled ‘Great Southern Continent’. [1]

Nathaniel Dance-Holland, James Cook, c1775

The Secret Instructions, dated 30 July 1768 contained in the Letterbook carried on the Endeavour, included Additional Instructions authorising James Cook to take possession of ‘a Continent or Land of great extent’ thought to exist in southern latitudes and instructed him ‘with the Consent of the Natives to take possession of Convenient Situations in the Country in the Name of the King of Great Britain’. [2] These provided that, if he found the Continent, he should chart its coasts, obtain information about its people, cultivate their friendship and alliance and annex any convenient trading posts in the King’s name. Cook followed the coast of New Zealand showing that Abel Tasman had been wrong to conclude that it formed part of the southern continent and then turned west, reaching the southern coast of NSW on 20 April 1770.[3] He sailed north, landing at Botany Bay one week later[4], before continuing to chart the Australian coast all the way north to the tip of Queensland. There, on Possession Island, just before sunset on 22 August 1770, he declared the coast a British possession

Notwithstand[ing] I had in the Name of His Majesty taken possession of several places upon this coast, I now once more hoisted English Coulers and in the Name of His Majesty King George the Third took possession of the whole Eastern Coast . . . by the name New South Wales, together with all the Bays, Harbours Rivers and Islands situate upon the said coast, after which we fired three Volleys of small Arms which were Answerd by the like number from the Ship.[5]

Cook had recorded signs that the coast was inhabited during the voyage north noting as he returned to the ship the large number of fires on all the land and islands about them, ‘a certain sign they are Inhabited’.[6] Cook then sailed through Torres Strait, returning to England in May 1771. Cook’s Secret Instructions represented the first official expressions of British interest in Australia combining the pursuit of scientific discovery with the desire to find exploitable natural resources and to expand Britain’s control of strategic trading posts around the globe and assumed that these varied interests could be made compatible with a respect for the native populations in those countries. Cook’s observations along the NSW coastline on his first voyage formed the foundation for Britain’s decision to establish the colony at Botany Bay in 1788.[7]

Cook’s second and third voyages involved a fuller exploration of the Pacific and Atlantic, including the search for a north-west passage through the Pacific to the Atlantic. He was instructed to make scientific observations and collect natural specimens, and to show ‘every kind of civility and regard’ to the natives, at the same time taking care not ‘to be surprized by them’. With their consent, he was to take possession in the name of the King of any convenient situations in any country he might discover. Cook eventually reached the north-west passage, but the Bering Strait was ice-bound and he was unable to cross it. Returning through the South Pacific, he was killed in the Sandwich Islands on 14 February 1779.

John Cleveley, Death of Captain Cook, aquatint, 1781

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[1] Beaglehole, J.C., The Life of Captain James Cook, (Stanford University Press), 1974 and his editions of Cook’s journals, The Journals of Captain James Cook: The Voyage of the Endeavour,1768-1771, (Cambridge University Press), 1955, The Journals of Captain James Cook: The Voyage of the Resolution and Adventure, 1772-1775, (Cambridge University Press), 1961 and The Journals of Captain James Cook: The Voyage of the Resolution and Discovery, 1776-1780, 2 Vols. (Cambridge University Press), 1967 are the standard works. Edwards, Philip, (ed.), James Cook: The Journals, (Penguin Books), 2003 is an abridged version.

[2] This Letterbook contains the only surviving set of Cook’s original Secret Instructions. See, HRNSW, Vol. 1, (1), pp. 398-402 for the secret instructions for Cook’s third voyage.

[3] Ibid, Edwards, Philip, (ed.), James Cook: The Journals, pp. 120-121.

[4] Ibid, Edwards, Philip, (ed.), James Cook: The Journals, pp. 122-123.

[5] Ibid, Edwards, Philip, (ed.), James Cook: The Journals, pp. 170-171.

[6] Unlike Cook’s interaction with other peoples in the Pacific and New Zealand, his contacts with the peoples in Australia have been relegated to a footnote in history perhaps because they were so brief. See, Nugent, Maria, Captain Cook Was Here, (Cambridge University Press), 2009 for a detailed examination and critique of Cook’s eight days at Botany Bay in late April-early May 1770 and the original encounter on land between the British explorers and the first Australians that has become one of Australia’s founding legends.

[7] HRNSW, Vol. 1, (1) contains extracts from Cook’s private log and the log book of the Endeavour. However, the volume is perhaps most valuable for the journals of officers, pp. 175-298.