Reducing costs or simply all gas!

Ed Miliband’s announcement that, if he is elected to Downing Street in 2015, his government will freeze energy prices for twenty months.  It was one of several statements over the past few days such as cancelling the ‘bedroom tax’ and compulsory purchase of unused land held by business that are indicative, some suggest, of a shift to the left by the Labour Party.  Today, we have had the predictable response from the energy companies, whose shares dropped drastically, that it could lead to the ‘lights going out’ and Miliband’s worrying tone that he would not ‘tolerate’ any obstruction from the energy industry.  The critical question is whether the Labour Party wants to not simply rein in what it sees as the worst excesses of the free market or whether it’s a case of back to the future, what one former Labour minister says marks a return to ‘tribal socialism’.One of the country's biggest investors - Neil Woodford of Invesco Perpetual - today called Labour's plan ‘economic vandalism..insane’ and warned that ‘the lights will go off, the economy will shut down.’  While Lord Mandelson, a former business secretary, said that he believed that Labour had moved on from the days of having to choose ‘between state control and laissez-faire’. 

The strategy the current opposition has developed to counter the government—the question of people’s falling living standards—is high risk especially so far from the General Election.  With the economy at least in the early stages of recovery and with falling levels of unemployment, there is still ample scope for the Coalition to counter the strategy with some effect.  But has Labour hit the right tone with its pronouncement about energy prices?  Polling data suggests that people are very concerned by energy prices but offering people £120 (the estimated gain from an energy freeze per household) is, I suspect, too low to persuade sufficient people to change their vote to Labour for it to hit the 35 per cent of the vote they need to be the largest party in the next parliament.  The electorate is sufficiently sophisticated not to be bribed into accepting what could be a disastrous business decision.  Prices in energy, as elsewhere, are determined by the law of supply and demand not by government regulation and control.  The energy companies are, like the banks, easy targets for the opposition since many people believe, not without some justification, that they put profits before social justice. 

But in government, you have to work with both and punitive raids on profits, though they may have political justification, make little economic sense—they have the potential for weakening the economy and reduce business confidence and may well increase living standards not reduce them.  Controlled economies have never been particularly effective economies since government is rarely the right organisation to run the economy on a day-to-day basis.  Yes it should provide the framework for fiscal and economic strategy but running the economy is best left to business and we need to recognise that business will always put profit before social justice.  The proper balance between profits and social justice is the role of regulation and we certainly need to strengthen this in several branches of economic life.  What Ed Miliband did yesterday, though it appealed to the socialist tendencies of some in his party, was to lay down a strategy for electoral failure not electoral success.  This is not, as he would have it, ‘standing up for the British people’.

Sir George Arthur as Lieutenant-Governor

The fragile order of VDL concerned the British government especially as it planned to increase transportation to the Australian colonies.[1] After Bigge found that transportation was an ineffective deterrent, the British government removed the popular Sorell[2] and in 1824 appointed the strict disciplinarian Colonel George Arthur as lieutenant-governor, beginning the most important period of the penal colony’s history. Seeking to make transportation feared by British criminals, Arthur raised convict discipline to new levels and ensured that punishment was uniform and assured. The British government responded by increasing the annual average of convicts sent to VDL from about 800 between 1817 and 1827 to about 1,800 between 1828 and 1835; between 1830 and 1836 convicts formed on average 44 per cent of the population.[3] The increase in convicts and free settlers swelled the total population from 5,468 in 1820 to 24,279 by 1830. Using methods similar to Sorell’s, Arthur deployed the increasing number of convicts on a large programme of public works and assigned convicts to farmers throughout the island. By forcing convicts to work for long periods, Arthur hoped to break the habit of idleness associated with criminality and provide convicts with skills to earn a living on the end of their sentences. The combination of cheap labour, a sizable injection of British capital and a growing free settler population greatly stimulated the economy and further strengthened the power and wealth of the gentry and merchants.

Arthur imposed severe punishments and floggings on convicts who disobeyed his regulations and many were hung for committing serious crimes, but order was also encouraged by his offer of inducements, such as a ticket of leave and a pardon, to those who behaved correctly and showed signs of reformation.[4] A ticket of leave was a license given to convicts if well behaved for four, six, or eight years depending on the length of their sentence. It allowed them to earn wages and live independently while serving the remainder of their sentences. The convicts remained under surveillance and the ticket could be rescinded for bad behaviour. A pardon remitted part or a convict’s entire sentence. A conditional pardon required a convict to remain in the colony, while an absolute pardon made no such requirement. Appealing to the self-interest of convicts was a central principle of Arthur’s policy of transportation

Colonists praised Arthur for restoring order by suppressing bush-ranging and the Aborigines and by enforcing a rigid system of convict discipline. But the relationship between some colonists and Arthur was strained. Arthur wanted to dominate colonists, not bow to their demands, to centralise power, not disperse it, and to restrict liberty, not extend it. The institutions of government reflected his desires. In 1825, VDL secured administrative independence from NSW and was granted an Executive Council, a form of cabinet comprised of senior public servants and a Legislative Council, whose members included the executive councillors and some free settlers chosen by Arthur. Arthur, who initiated all legislation, expected the two Councils to approve his measures and they invariably did. Arthur also expected the Supreme Court, formed in 1824 with the arrival of John Pedder as chief justice, to uphold his autocratic rule, even where his powers might ‘trench upon the privileges or conveniences of the free.’[5] By holding a seat on the Executive Council until 1836 and on the Legislative Council, Pedder subordinated the judicial arm of government to the executive and destroyed confidence in his impartiality.[6]

Arthur used his power to initiate new legislation ‘sparingly’ when it became the only way of ‘varying the community instincts and activities’ that frustrated his policies.[7] In ten years under Arthur (1826 to 1836), eighty-eight statutes were passed compared with one hundred and thirty-six in six years under his successor Sir John Franklin.[8] Arthur’s statute law vested ‘executive powers in himself and those responsible to him; providing administrative directions to enable his policies to be implemented without too much statutory regulation.’ He argued against the notion that no colonial laws should be implemented unless they were ‘adapted to the spirit of the British Constitution.’[9] Those who ‘knowingly’ emigrated to a convict colony, which was in effect ‘an immense Gaol or Penitentiary,’ should not expect ‘to retain every immunity and privilege’ they enjoyed in England and should ‘abide cheerfully by the rules and customs of the Prison.’ There could be

...no happiness nor prosperity without personal security,’ and this could only be secured by ‘severe discipline’.[10]

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[1] Boyce, James, Van Diemen’s Land, (Black Inc.), 2008, pp. 145-212 provides the most recent discussion of Arthur’s rule.

[2] Sorell’s removal had more to do with his relationship with Mrs Kent, whom he lived with in Government House than his governance of VDL. He was negligent in his family obligations and his failure to recognise the social conventions was a deliberate choice. For this he was apparently prepared to pay. He damaged the official career to which he was certainly dedicated, but the majority of the influential free Tasmanian colonists seemed to have overlooked unconventional conduct or impropriety and saw Sorell as a fair and effective governor.

[3] Ibid, Shaw A.G.L., Convicts and Colonies, pp. 365-67; ibid, Forsyth, W.D., Governor Arthur’s Convict System, p. 150; ibid, Hartwell, R.M., The Economic Development of Van Diemen’s Land, 1820-1850, p. 68.

[4] Arthur, George, Defence of Transportation, in Reply to the Remarks of the Archbishop of Dublin in His Second Letter to Earl Grey, (Gowie), 1835, pp. 48, 96-100; ibid, Shaw A.G.L., Convicts and Colonies, pp. 217-48; Davis, R.P., The Tasmanian Gallows: A Study of Capital Punishment, (Cat and Fiddle Press), 1974, pp. 13-33.

[5] Colonial Office (CO) 280, Arthur to Hanley, 4 April 1834.

[6] For a sympathetic view of Pedder, see Bennett, J.M., Sir John Pedder: First Chief Justice, (University of Tasmania), 1977. See also, Howell, P.A., ‘Pedder, Sir John Lewes (1793-1859)’, ADB, Vol. 2, pp. 319-320.

[7] Ibid, Castles, A.C., ‘The Vandiemonian Spirit and the Law’, pp. 114, 116 n. 53

[8] The Public General Acts of Tasmania 1826-1936, Vol. 7, (Butterworth), 1936-1939, pp. 221-228.

[9] CO 280, Arthur to Hanley, 4 April 1834.

[10] CO 280, Arthur to Hanley, 4 April 1834, emphasis in original.

You wouldn’t know it was only a year away!

If you look at the ‘national’ newspapers you really would not know that the referendum on Scottish independence is only a year away and yet it is perhaps the most important decision that will be made in our lifetimes.  Certainly it is more important than the proposed referendum on the European Union about which everyone has an opinion.  I’m reminded of how ‘British’ history is taught in many schools—for ‘Britain’ read England or, more accurately, England south of the Watford Gap.  It is hardly surprising, given the enormous condescension of history, that Scotland is calling for independence.  The assumption appears to be that the Scots will see sense and vote to remain in the Union but that’s a hell of a gamble.  The polls suggest that most people are against independence so we just need to build on that…again remarkable complaisance.  Think again…a recent poll in the Herald shows that a majority of Scots favour ‘devomax’, the further devolution of powers short of independence that is not on offer…so the choice is between independence or nothing for this majority and ripe for picking by those who want independence.

Do I think Scotland could make it as an independent country…well actually yes.  It has the resources—natural, social, cultural, economic and political—to do so.  Devolution has given it a revived experience of governance and it is rightly believed that successive Scottish executives have done a good job.  It already has its own legal and education systems.  So there are strong arguments for an independent Scotland at a practical level.  There is also a persuasive historical case for restoring the independence of the northern kingdom, a process that devolution inevitably set in train.  There is a strong tradition in Britain’s history for local and regional identities that frequently transcend any notion of national feeling.  I come from the Fens and have always regarded myself first as a Fenman and still baulk at being seen as an East Anglian. Individual identity does depend on place and space.  In Scotland, the distinction between lowlanders and highlanders or whether you were born in Glasgow or Edinburgh makes a difference and has long been a feature of Scottish cultural identity.  What holds Britain together is its union of disparate and different people.

The problem with union is that it was the result of a long evolution and, other than being unitary, has little logical structure at all.  It was the consequence of conquest, cajoling, bribery and corruption…a constitutional structure based on decidedly unconstitutional foundations.  Until recently, the relationship between the centre and the peripheries was decided in Westminster and the degree to which the peripheries achieved political influence was dependent on their ability to influence politicians in Westminster.  It had been a very unequal union in which being English or being seen to be English has been its determining characteristic.  I happen to think that the four elements of Great Britain are better together than apart…but then I’m English and would say that anyway wouldn’t I!!  But not under the current union….what we need is a new federal union to replace the bankrupt unitary one. 

This would not be as difficult or radical as it sounds.  Northern Ireland, Scotland and Wales already have devolved powers that could be extended by applying the principles of devomax.  In effect they would have independence to make most of the decisions about domestic policy simply developing what already exists.  England would need its own parliament to make decisions…again this is not a difficult proposition as currently Parliament makes decisions about education and the NHS, for instance, that apply to England rather than the United Kingdom as a whole.  There would need to be a peripatetic federal Parliament to decide issues that affect the union as a whole—foreign policy, defence, security on so on—that could sit in London, Edinburgh, Belfast and Cardiff in existing parliamentary or assembly buildings for say six months at a time.  This would modernise what is increasingly a creaking constitutional structure that is not ‘fit for purpose’ as far as many people are concerned. 

Common-sense and Syria or doing something is better than doing nothing!

We now have an admission from the White House that it has no ‘irrefutable’ evidence of Mr Assad's involvement in the August attack, but said a ‘strong common-sense test irrespective of the intelligence’ suggested his government was responsible.  I’m always a little sceptical when anyone says…common-sense dictates..and this is intensified when it comes to whether or not there is intervention in Syria.  We similarly have the view of William Hague against believing anything that Assad said in an interview for American television: ‘We mustn’t fall into the trap of attaching too much credibility to the words of a leader--President Assad--who has presided over so many war crimes and crimes against humanity.’  So there’s no need to apply the beyond all reasonable doubt principle because, as the American Secretary of State pronounced ‘intelligence does not work that way’ and anyway, despite his denial of culpability for the attack (well he would say that wouldn’t he), he’s not to be believed.  Now both William Hague and John Kerry may be right and Assad was responsible for the attack but is there not equally the possibility that we are ‘attaching too much credibility’ to their words.  In a war of words, truth is often the first casualty.

Whether or not there is intervention seems to hinge on the response of the American Congress.  A Washington Post survey said 224 of the current 433 members of the House of Representatives were either ‘no’ or ‘leaning no’ on military action as of Friday, while 184 were undecided and just 25 were backing a strike.  In the Senate, the survey suggested that 27 of the 100 senators were ‘no’ or ‘leaning no’, while 50 were undecided and 23 supportive of military action.  Many US politicians remain concerned that military action could draw the nation into a prolonged war and spark broader hostilities in the region.  The critical question is not whether punitive action is or is not justifiable but what the possible consequences of such action could be.  It is this issue perhaps more than any other than contributed to Parliament’s defeat of the government’s motion on the principle of intervention ten days ago.  Even if you think that the Assad regime was responsible for the chemical attack, you can still oppose intervention because it would make the situation worse and fail to resolve the question of Syria’s civil war.  Other than punishing the Assad regime and presumably degrading its potential for further use of chemical weapons, you have to ask whether this is sufficient justification for intervention.  It represents action that has no obvious end.  What it certainly does not do is bring about the end of the civil war…surely the only justification for any action, military or diplomatic. 

The problem of intervention is that there are no winners.  The Syrian oppositions (the plural is deliberate) will be no closer to winning their wars, whether with each other or with the Syrian regime.  For some, an external attack on the regime will bolster their support for Assad with increased military and logistical aid.  It does nothing to heal the fractious relationship between the United States and Russia and China, a relationship that is fundamental to finding a diplomatic solution to the military impasse.  For the Middle East generally, further United States intervention will raise again the spectre of Iraq and the largely unsuccessful mission in Afghanistan and increase not diminish the suspicion by Moslems of the American imperialist state.  It makes the creation of a democratic state in Syria (always an unlikely eventuality in the short-term) even less likely.  The legacy of the ‘Arab spring’, and in this respect it echoes the ‘democratic spring’ of 1848, is not the creation of democratic states but fractious communities in which democracy is seen, not as an expression of liberal principles, but the means for establishing the tyranny of the majority  over the rights (often previously tolerated in dictatorial regimes) of minority groups. 

If the only argument for intervention is common-sense dictates, then there is no case at all.  This is not appeasing dictators (something dominant powers have always been prepared to do when it suited them) but recognises that intervention makes what will be the only solution to the problem of Syria—a diplomatic and politic one—more difficult to achieve.

Red lines, Syria and intervention

One of the dangers of laying down red lines is that when they are crossed (as they almost inevitably will do) you are then in a position of having to do something about it without losing credibility.  Over Syria, red lines have been crossed..not a fortnight ago in the horrendous attack..but earlier when on fourteen occasions previously chemical weapons were used.  There is a growing disconnect between the view of some politicians on the need for intervention in Syria and the view of many people—polls indicate a majority of people in France and Britain and barely a majority in the United States—who are either opposed to or sceptical about intervention.  Some oppose intervention on principle or war-weariness but most oppose intervention because they are unclear what the purpose of intervention is, other than it being a punitive action, and do not see how it could resolve the intractable problem of the civil war.

The disconnect between politicians and the people is paralleled by the disconnect between those countries that support intervention and those who oppose it without the agreement of the United Nations Security Council as evidenced in the G20 meeting that ended today.  There is no agreement over who perpetrated the atrocity, though the balance of probability lies with the Assad regime; there is no agreement over the value of intervention; and there is very little likelihood of agreement in the Security Council.  Relying on the UN to act over Syria David Cameron has said, would be tantamount to ‘contracting out foreign policy and morality’ to a Russian veto. 

Early policing in Van Diemen’s Land

The penal colony of VDL was founded by the British in March 1803. Since this island of 65,000 square kilometres was strategically placed to the south of the Australian mainland, Governor King of NSW feared French attempts to colonise it. [1] Accordingly, he established there a small community of convicts, soldiers, and some free settlers. Two main settlements emerged, Hobart Town in the south, later its capital and Launceston in the north. The colony was administered by a lieutenant-governor, a military officer, who reported to the governor of NSW.

In the first decade or so, the convict settlement faced various difficulties. Because of irregular supplies from NSW, colonists barely survived by supplementing their diet with fish and native animals. Prosperity emerged after the Napoleonic Wars ended and free settlement expanded. The free settlers extended their occupation of the arable land in the north, northeast, and southeast. An economy based on trading, the wool industry, wheat farming and whaling developed and Hobart Town and Launceston grew into thriving towns. A small but wealthy farming and trading community emerged that benefited from the capable and pliable administration of William Sorell, lieutenant-governor from 1817 to 1824.[2] In 1818, convicts began to be transported directly from Britain to VDL. Affluent settlers appreciated Sorell’s effective deployment of convicts on public works and as assigned labourers on their farms, thereby consolidating their wealth and power. Unlike NSW, very few ex-convicts were prominent in public life in the younger island colony.[3] Through land grants and purchases, free settlers owned ‘a very large proportion of all the property’ and expected to exercise ‘that influence which is usually associated with large means.’

Mr Robinson’s house on the Derwent, VDL, c1838

Sorell was appointed in the hope that he would be able to restore order and bring direction and organisation into the government to VDL. Once he assumed office in April 1817, he immediately proceeded to try to reform the abuses prevalent on the Derwent. He found much disorder in the administration, government activities were not co-ordinated and corruption was common.[4] The convicts were under little control and bush ranging had almost reached open armed revolt against authority. Sorell knew that his powers were severely limited and his authority in most matters was confined to carrying out instructions received from Macquarie; he was not allowed to allocate land to settlers or to employ government funds or prison labour without sanction and he was required to submit details of public expenditure to Sydney.

Sorell firmly met the challenge of Michael Howe, the leader of the bushrangers and self-styled ‘Governor of the Woods’. Well planned and executed military operations quickly ended Howe’s career and sent most of his followers to the gallows. The stern warning was not lost on those runaway convicts who sought to emulate Howe. The ‘Old Man’, as Sorell was known, probably because of his white hair, was rightly feared as nobody in the colony before him. Sorell knew that large-scale bushranging was only made possible by help given by outwardly law-abiding free colonists and, in less than eighteen months after taking office, he had arrested all the known sympathisers of the bushrangers and those who assisted them. With law and order restored, Sorell was able to carry out the reform of government. Organising a proper personal staff and successfully employing his considerable diplomatic skill, he secured the co-operation of the newly appointed deputy Judge-Advocate Edward Abbott[5], the senior chaplain and the commanding officer of the troops. The duties of each public officer were clearly defined and a proper system of accounts, records and correspondence installed. Sorell can be regarded as the founder of sound administrative systems in the colony.

Recognising that the British government regarded the colony principally as a community for the reception, punishment and wherever possible the reclamation of prisoners, Sorell organised governmental agencies for these purposes. He established a ‘system of perpetual reference and control’ over convicts through regular musters, the strict issue of passes and a full series of registers. He built convict barracks in Hobart that were first occupied in 1822. He tried to assign prisoners only to reputable employers and to guard against the lax granting of tickets-of-leave by restricting them to convicts who gave evidence of good behaviour, apart from a few with special skills. For reconvicted prisoners he established the penal settlement on Sarah Island in the then remote Macquarie Harbour. Later generations, with little knowledge of contemporary conditions and the lack of humanity in his generation’s attitude to crime and punishment, have severely criticised Sorell for the conditions there. However, he had no funds or authority to establish a proper penal settlement or to build costly prisons.

From 1817 onwards, free colonists began to arrive in increasing numbers. Sorell personally carried out investigations of land that seemed suitable for grants. Although there are no records of his having been engaged in farming in England, he showed a very practical concern in expanding production from the land. All through his letters and dispatches are references to the care of livestock, the proper selection of seed for grain crops and their proper harvesting and storage. A community that ten years earlier had faced famine became a producer of surplus crops which were exported to Sydney and even abroad. Sorell recognized the value of the Midland plains for pastoral production. With Macquarie’s co-operation he arranged for the importation of several hundred merino sheep from the Camden flock laying the foundations of the Tasmanian fine-wool industry. Commerce increased as a result of stable conditions and land development, but the chaotic condition of the currency proved a problem. Sorell could not withdraw the debased coins and promissory notes in circulation or abolish the custom of the use of rum for exchange but he constantly endeavoured to keep all official values expressed in sterling, despite the fact that the Spanish dollar was the commonest coin and he made an important contribution to commerce by taking steps, with the aid of leading merchants, to establish a bank, the Bank of Van Diemen’s Land. Sorell’s policies were so successful that the colony’s conditions and prospects became well known and favourably regarded in Britain. The ready availability of land suitable for sheep-breeding and wool-growing and of cheap assigned labour attracted a considerable number of former army and navy officers who brought their families, household goods, agricultural implements and in many cases substantial capital with them.[6]

This picture of developing prosperity should not mask the problems of maintaining law and order in the first two decades. Convicts dominated the population, but were not easily controlled by the military and convict constables. Many convicts escaped into the densely forested and mountainous terrain found throughout the island, there developing a subculture of banditry. Although Sorell made significant inroads, bush-ranging remained rampant in the mid-1820s. Settlers also faced attacks from the Aborigines, who numbered between four and six thousand in 1803 and waged a form of guerrilla warfare against the military and settlers, using their knowledge of the rugged interior. [7] Although many were killed and even more succumbed to European diseases, they remained a threat in the mid-1820s. The court system was a parody of the rule of law. In 1816, a deputy Judge-Advocate began to hear civil cases up to £50 in the lieutenant-governor’s court, but the colony did not have a resident judge until 1824 and colonists were unwilling to spend money prosecuting cases in Sydney.[8] Despite lacking legal authority, powerful lay magistrates heard many capital cases and imposed severe sentences, such as flogging. In many criminal cases, the offenders escaped punishment or were punished contrary to law and in 1814 NSW Judge-Advocate Ellis Bent found it difficult to give ‘an accurate idea of the state of misrule and uncontrolled profligacy in all classes’ in VDL.[9] The arbitrary imposition of the criminal law engendered ‘a deeply honed resentment of government.’[10]

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[1] Roe, Michael, ‘Introduction: The History of Tasmania to 1856’, in Stone, C.R., and Tyson, Pamela, (eds.), Old Hobart Town and Environs, 1802-1855, (Pioneer Design Studio), 1978, pp. 7-16; ibid, Robson, L.L., A History of Tasmania, Vol. 1, Van Diemen’s Land from the Earliest Times to 1855.

[2] Reynolds, John, ‘Sorell, William (1775-1848)’, ADB, Vol. 2, pp. 459-462.

[3] Arthur, George, Observations Upon Secondary Punishments, (James Ross), 1833, pp. 74-76.

[4] See discussion by Curnow, R., ‘What’s Past is Prologue: Administrative Corruption in Australia’, in Tiihonen, Seppo, (ed.), The history of corruption in central government, (IOS Press), 2003, pp. 37-64, especially pp. 39-46.

[5] Townsley, W.A., ‘Abbott, Edward (1766-1832)’, ADB, Vol. 1, pp. 2-3.

[6] Hartwell, R.M., The Economic Development of Van Diemen’s Land, 1820-1850, (Melbourne University Press), 1954.

[7] Reynolds, Henry, Fate of a Free People, (Penguin Books), 1995.

[8] Castles, A.C., ‘The Vandiemonian Spirit and the Law’, Tasmanian Historical Research Association Papers and Proceedings, Vol. 38, (1991), p. 109.

[9] See Bennett, J.M., and Castles, A.C., (eds.), A Source Book of Australian Legal History, (Law Book Company), 1979, p. 38.

[10] Ibid, Castles, A.C., ‘The Vandiemonian Spirit and the Law’, p. 110.

Parliamentary sovereignty and foreign policy

It’s less than twelve hours since the shock defeat of the government not over involvement in a punitive attack on Syria but on the principle of such an attack.  It is to the Prime Minister’s credit that he immediately accepted the verdict of the House of Commons as well as making clear that he will not use his powers under the Royal Prerogative to thwart that verdict, something that is within his powers to do.  In fact, on this particular issue the Prime Minister was on a hiding to nothing whichever way the vote had gone.  Had he won the vote, this morning people would be saying that Britain was again acting as the United States’ lap-dog and that there would inevitably be mission creep leading to more direct involvement in Syria.  Now that he has lost the vote, Britain is being accused by some of appeasing dictators, that our standing in the world community has been diminished and that this is a bad day for democracy.  Given that even the most naive commentator could have predicted these outcomes, one has to ask why the Prime Minister went down a road that was going to lead to disappointment whatever the outcome.  In reality, the government was unable to convince MPs and by extension the country that we should be involved in yet another Middle East adventure. 

Within the British Constitution, the executive makes and implements policies while the legislature hold those policies to account.  It is not a case of who is in charge. Neither is it the case that MPs set Britain’s foreign policy; they simply rejected a policy that the government proposed as is their constitutional duty.  Foreign policy is this morning still set by the executive but it must, as has been the case since the votes on the Iraq war in 2003, carry Parliament with it instead of relying on the antiquated notion of the Royal Prerogative.  Foreign policy, especially in relation to peace and war, is now a collegial matter.  The government lost because it was unable to convince MPs of either the intelligence or legal case for intervention and this raises important questions not simply about the legitimacy of intervention but raises important questions about political timing:

• Given that intelligence concluded that there had been 14 previous chemical attacks in Syria, was it simply the scale of the attack last week that led to a change in policy from one of diplomatic warnings but largely inaction to intervention?  In other words, the global community (effectively the alliance of the willing in the West) could not longer be seen to do nothing. 
• Given that this is the case, why then did the West seek to intervene before the UN weapons inspectors has completed their examination of the incident and before the matter had been discussed in the UN Security Council?  In other words, why did it not follow due process?  In Britain, this became a critical issue when Ed Milliband decided, probably strongly influenced by the poisonous legacy of Iraq, that he could not support the government’s policy until due process had been observed.  Whether this was a principled stance or political opportunism, the Prime Minister should at this point have postponed any debate until after the weapons inspectors reported (probably early next week) rather than proceed with a vote on the principle of intervention.
• That he did not reflected what most commentators believed: Parliament would vote for the principle of intervention and that this would have made it more difficult for it later to vote down any motion calling for that principle to be put into practice.  MPs would need to demonstrate why, having voted for the principle of intervention, why it should not be applied in the case of Syria.  At one level this was a tactically sound approach from the government as there seemed little likelihood that it would lose.  In fact, had all the Labour MPs been present, it is likely that it would have lost by a greater margin that thirteen votes.  Had the Prime Minister decided to postpone the debate until next week it is quite possible, even probable, that he would have won.  Timing it seems is everything.

Evidence, International Law and Intervention

There appears to be a new ‘standard of proof’ among western politicians based round the principle of asserting something is the case and then later finding the evidence that sustains the case.  Yet, the only thing about the chemical attack a week ago that is clear is that an attack occurred and large numbers of people died.  What is not is who was responsible.  The balance of probability points to the Assad regime—it has the necessary resources and means of delivery and the attack took place in an area controlled by rebel forces—but in matters where the West is inclined to intervene I think that we need to apply the principle of ‘beyond all reasonable doubt’ not the lesser burden of proof.  Given that the policy of the Western allies towards Syria over the past year has been one of procrastination, allowing weapons inspectors time to collect the necessary evidence and establishing who was responsible for the attack before intervening would be a better solution than the current gung-ho approach.  There have been chemical attacks before (though not on this scale) and there have been atrocities on both sides, ‘red lines’ have been crossed in the past but, apart from strong words, the West has continued its attempts to find a political and diplomatic solution.  Western intervention may well make a bad situation worse.  Intervention in Iraq, though no one is talking about boots on the ground in Syria, makes that point  and if Tony Blair, the Middle East ‘peace envoy’ is in favour of intervention then I think that we should be very careful.

So, without definitive proof that the Assad regime perpetrated the atrocity, would military intervention be legal?  In the absence of an international court that can give a definitive ruling on the legality or otherwise of intervention, the West appears to be relying on the developing notion of ‘responsibility to protect’ that emerged out of the humanitarian disasters in Kosovo and Rwanda in the 1990s.  The idea is widely though not universally accepted and has three parts:

• States must protect their own populations from genocide, war crimes and crimes against humanity, while, simultaneously, the international community has an obligation to help states prevent such crimes.
• Where there is strong evidence of these crimes and a state cannot or will not stop them, the international community should exhaust all peaceful means in seeking to bring the atrocity to an end.
• If all that is done, and fails, the international community can use military force.  The force deployed would be limited and specifically targeted at stopping further atrocities.

If all these criteria are met, then the use of military force would, some lawyers argue, be legal in international law.  To have real legitimacy, military intervention should be authorised by the United Nations Security Council, the primary arbiter in the use of force in international law. Given Russia’s and China’s support for the Assad regime, this is an unlikely scenario. The critical question is whether the second of these elements has been met: have all peaceful means been exhausted?  Given that Syria’s divisions can only be resolved by a peaceful political solution, this is doubtful and in that respect the legal case for intervention is far from conclusive.  Whether the ‘responsibility to protect’ covers a punitive strike to punish the regime for using chemical weapons is also doubtful.

The Middle East has long been a tinder-box and the history of western intervention is hardly one of unmitigated success.  Take, for instance, the initial success of military intervention in Iraq followed by the failure to have a longer-term plan for dealing with the aftermath of regime change.  The West’s solution appears to be that introducing democracy will resolve the problem.  Wrong.  What the introduction of democratic institutions in countries without a democratic tradition does it to exacerbate divisions that had previously been held in check by strong dictatorial leadership—the tyranny of the majority replaces the tyranny of the individual.  We seem to forget that western democracy did not emerge as a refined system but was deeply contested over many decades and yet we appear to think that it will immediately put down deep roots in societies where strong leadership has been the norm. 

Statements that intervention will demonstrate ‘the West’s resolve not to allow the use of chemical weapons’ or ‘intervention is a test for Europe’ neglect the law of unintended consequences. 

• If missile strikes (the most likely option for intervention) occur and further atrocities take place, what options are then open to the West?  Further strikes?  Physical intervention?  If so, who among the fragmented Syrian opposition is the intervention in favour of?  One of the problems with military intervention is that if it fails to achieve its objectives (and it is far from clear what the objectives in Syria are other than protecting civilians), what happens next?
• Intervention will inevitably lead to increased tension between the ‘alliance of the willing’ and Russia and China.  It will make finding an agreed solution more not less likely.
• Israel will be made more vulnerable to attack from Syria (something already stated) and bring it into a conflict that it has largely stood outside.  If Israel then attacked Syria, what would Iran’s response be?   Active intervention by Israel could unite Arab nations.

There is little appetite among public opinion in the West for further military ‘adventures’ in the Middle East.  Doing nothing (though the West has a long history of doing this) may no longer be an option but military intervention is not the answer.  The solution to Syria’s problems lies not in inflaming matters by intervention but in finding common ground with Russia, China and Iran that could form the basis for a peaceful solution.

Syria, chemical warfare and western intervention

The situation in Syria has deteriorated rapidly since the horrific nerve gas attack last week.  The PM is cutting his holiday short and is expected to hold a National Security Council meeting on Wednesday.  He had phone calls with leaders, including US President Barack Obama, this weekend, where they agreed on the need to take ‘strong action’.  William Hague, Foreign Secretary, stated that he would not go into options but was not going to rule anything in or out on this morning’s BBC’s Radio 4’s Today programme and that intervention (in some as yet unspecified form) could occur without the unanimous backing of the United Nations.  It all sounds depressingly familiar.

William Hague has repeated his assertion that the suspected chemical attack was carried out by the Syrian regime not by those seeking to oust President Bashar al-Assad.  Now he may have sound intelligence for his statement but so far the rhetoric has not been backed by any concrete evidence.  UN weapons inspectors en route for the site this morning were fired on and had to withdraw.  There are only two possible explanations for the outrage: it was either action by the Assad regime (with or without his express instructions) or by the Syrian opposition.  If it was an action by the Syrian regime, it was poorly timed given the presence of the weapons inspectors in the country.  If it was an action by the Syrian opposition, they were killing people in areas they already control and could blame the Assad government.  Possible intervention seems to be based on a dodgy a dossier as the invasion of Iraq.  Both sides, it is claimed, have used chemical weapons in the past and both sides have been accused of committing human rights violations.  To conclude on the basis of no real evidence at all, that one side or the other committed this crime is pure speculation and should not be used as the basis for making a decision in favour of western intervention. 

There may have been a case for intervening in Afghanistan and Iraq and later in Libya and I emphasise ‘may’, but intervention has come at a massive human cost for military forces, insurgents and the civilian populations.  Whether this ‘war on terror’ has made the Middle East more stable or reduced the threat of terrorist activities is questionable.  The authorities, of whatever hue, will inevitably point to what has been achieved (whatever that means) but the experience of the last decade shows clearly that you cannot easily import western style democracy to countries without a tradition of democratic institutions and rights and that if democratic regimes do emerge, you have to be prepared to deal with governments, in Egypt for instance before the military coup, whose ideologies you do not like.  The situation in Syria is even more complex because there is no united Syrian opposition with different groups, with markedly different agendas competing not simply against the Assad regime but also against each other.  So who are you intervening to support?  This question will not go away even if the unlikely eventuality of complete UN backing is forthcoming unless you accept the amorphous and bankrupt notion of intervention to ‘protect the people’.  In Afghanistan, Iraq and Libya, intervention (whether you agreed with it or not) was in support of a specific goal; that luxury is unavailable in Syria.  What began as a campaign for democratic liberation has degenerated into a vicious, bloody struggle for military domination in which calls for democracy have become increasingly redundant.  So what are we considering intervention for?

The ‘moral economy’, the market and politics

The notion of an ethical foreign policy developed by Robin Cook, something that came to an abrupt end with 9/11, and more particularly the impact of the financial crisis since 2008 and the scandal of MPs’ expenses raised important questions about the place of morality in politics and business.  It has become almost essential for politicians to ‘name and shame’ those who, even when they work within existing rules, have offended against the public’s sense of what is ‘right’.  This hair-shirt approach to politics has seen bankers, MPs, journalists, newspaper editors and proprietors and large corporations attacked, often by self-serving  and ‘holier than thou’ politicians for breaching the ‘contract’ between ‘the people’ and governing economic and political elites.  This revival of the notion of a ‘moral economy’ in which there are agreed, but generally ill-defined, standards against which people’s actions can be judged, has seen the idea of the free market come under sustained pressure to become more ethical in its operations.  One of the things that is evident from past experience is that when the moral economy and the free market come into conflict, it is the free market that emerges triumphant.

In part this is the result of the intense difficulty of making ethical judgements on which people actually agree.  Take the question of taxation.  Should people and business pay the taxes that the rules state that they should pay?  Most people would agree that they should.  However, when people are asked whether people should pay the taxes that are due from them following the ‘spirit’ of the rules as well the rules themselves, then the question become more problematic.  What do people understand by the ‘spirit’ of the rules and does it actually have any meaning at all?  If the rules allow people to avoid paying taxes, even aggressively avoid taxes, their actions are perfectly legal and calling upon the ‘spirit’ of the rules to get them to pay more taxes is morally repugnant.  If you think that people should be paying more tax and are using the rules to avoid paying more tax, then change to rules rather than using what can only be called moral blackmail to get them to divi up.  The rhetoric of morality is an excellent stratagem for rousing popular anger against those who offend public sensibilities and is often manufactured by politicians keen to show they are on the people’s side but rules always ultimately trump morality even if they have a moral grounding. 

Take the question of fracking and the so-called ‘dash for gas’. The most important role for the state is to provide security for its people and energy security is of particular importance as Britain is increasingly reliant on imported energy that could be turned off.  Here again there is a clash between the moral economy and the market.  Those opposed to fracking fall into different types.  There are those who are opposed to any fracking arguing that it will not resolve the problem of global warming—methane is released as part of the fracking process and is a powerful greenhouse gas—and that we should be looking at renewable energy to resolve the problem of energy security.  There are those who may or may not be opposed to fracking but don’t want it on their doorsteps.  There are those who are agnostic on the question but are concerned about the environmental effects of fracking and are not convinced that the regulations controlling exploration and extraction are sufficiently robust.  On the other side, there are those who argue that it will reduce energy bills, create jobs, contribute (along with nuclear and renewables) to energy security and will still allow Britain to reach its climate change targets.  Whatever the moral arguments for or against fracking, the critical issue for a state is fulfilling its imperative to provide people with security and that suggests a market solution—fracking may resolve a threat.  There may be moral issues about fracking that for some are absolute but the reality for most people is whether the lights and heating stay on or not. 

The problem for politicians, even if keen to use the rhetoric of morality, is that politics is the art of the possible not the art of moral absolutes.  Although there often is a convergence between what is possible or necessary and what is right in politics, if there is a choice between the two, what is right takes second place whether the decision made is ‘right’ or not.