CIVIC REPUBLICAN NEWSLETTER

 

“Constructing a Humanist Politics”

www.republicans.org.uk

 

Issue No 25 Friday 27 February 2009

 

 

 

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This week

 

·        New Labour’s New Invention – “The Court Of Public Opinion”. Brown And Harman Seek To Further Undermine The Rule Of Law

 

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Current

What is happening now of interest to Civic Republicanism

 

LAW

 

·        New Labour’s New Invention – “The Court Of Public Opinion”. Brown And Harman Seek To Further Undermine The Rule Of Law

 

 

These are vexing times to say the least. When individuals have to cope with vexing times they often do silly things. When governments have to cope with them, they often use them as an excuse to try to throw out good principles of government, such as the constitution, human rights and the rule of law.

 

For example, when the New Labour government had to cope with terrorist threat, real, imaginary or exaggerated, its response was to challenge normal legal human rights, as in the case of the now almost forgotten failed attempt to extend the period without trial to 42 days.

 

In the present period, with the government having to cope with an extreme financial situation we see it again ready to abandon accepted principles of good government. No doubt in this Gordon Brown and his government are aware that the British people know full well that that government has played a major part in creating the mess and so are seeking to court popularity.

 

An example of this is the banning of “short selling” back in September 2008. This measure was taken because it was deemed that short selling was creating an artificial turbulence in the value of certain stocks especially bank stocks. Now we may ask whether the short selling ban has had any significant effect on the financial events since September. We may ask whether the barrage of bad news and stories of corruption and bad judgments would have been any different if short selling had remained legal.

 

But there is a more important issue of principle at stake here that no one seems to want to point out. Short selling, rightly or wrongly, was an entirely legal activity until September of last year. As it happens, the companies that made the most use of it were the hedge funds and again (less we forget) hedge funds and their activities in general are (or were) legal. Maybe they should not be. Maybe much tighter regulation is necessary. But to change the rules under which they operate at the drop of a hat with no warning hardly seems fair.

 

Fair? Fair to hedge funds! Well, why should we not be? Why should we not be scrupulous in our fairness to all, especially those who are trading in what has been deemed a legal activity. We cannot have a legal framework which discriminates against certain citizens, however rich, however cunning. Hedge funds work by taking financial positions on a whole variety of financial instruments and seek thereby to “hedge” against losses. Take away without warning one of those instruments and they may well be highly destabilized. Individuals may loose money - lots of money. They may be bankrupted.

 

Of course, for politicians, hedge funds represent an easy target. They are generally regarded with suspicion and clearly serve only the very rich who themselves may be seen to merit a degree of resentment. But there is a killer aspect to them that means they invite being scapegoated - there is no chance they will answer back. So they are tailor made for a failing government that wishes to deflect attention from its own catastrophic polices and be seen to be “doing something”.

 

But let’s be clear about this. This is a very, very dangerous road to go down. To make what was legal yesterday illegal today is an act that no responsible modern government should ever countenance. The fact that this action might affect only a minority of rich people does absolutely nothing to change this vital principle of government.

 

The banning of short selling happened because the government believed that its own electability or re-electability was the only thing that mattered. In other words principles of justice and rights can be cast aside if it affects individuals that can be demonized and made culpable and isolated from the rest of us if it might help the government’s popularity. This is, unfortunately, the ugly face of the democratic, populist system under which we live.

 

All this happened last September. We do not know how many people suffered, or how much, from the government’s decision. We may never know, as the people affected are unlikely to cry foul.

 

But what we do know is what happened on The Andrew Marr Show this Sunday, 01 March 2009, and this took the tendency to disregard the rule of law and constitutional government to new depths. The Deputy Prime Minister, no less, Harriet Harman, talked about the “Court of Public Opinion” and her right to represent it.

 

With this chilling phrase she tried to turn the clock back on all the advances that our country has made in the last eight hundred years whereby the rule of law is paramount in our society. The rule of law takes precedence over the rule of kings or the rule of anybody or anything else and that includes the ill-defined and spurious concept of “public opinion”.

 

Again her target was an easy one. It was Sir Fred Goodwin, “Fred the Shred”, ex-head of the Royal Bank of Scotland, who felt able, in conscience, to defy the massive head of public opinion against his walking away from the organisation he effectively bankrupted with a £700,000 a year pension. Whereas the hedge funds might merit some kind of begrudging respect this despised individual who has decimated the savings of thousands of hard working people sure deserves none.

 

But, however we might find it difficult, if we are to build a humanist political culture, we have to hold to certain fundamental principles. The transcribe of the interview of Harmen discussing this issue is a matter of record as follows. [taken from http://news.bbc.co.uk/2/hi/programmes/andrew_marr_show/7904218.stm ]

 

….

 

ANDREW MARR:

 

Let's move onto another big topic today: Sir Fred Goodwin's pension. One of the things that's said in today's papers, asserted in today's papers - that whatever the Government says, we don't like this, it's outrageous, it's greedy and so on - absolutely nothing you can do about it.

 

HARRIET HARMAN:

 

Well the Prime Minister, quoting the Prime Minister again, the Prime Minister said it's "unacceptable" and that's obviously the case. If you've got…I don't regard it…

 

ANDREW MARR:

 

(over) Well you may think it's unacceptable, but there's nothing you can do about it.

 

HARRIET HARMAN:

 

No, but…but let me just make my argument about this. Is that it's been called a pension but I can't see how it's a pension because he's not retired. It's money for nothing. It's a severance payment. And to get a severance payment when you've led a bank to the brink of collapse with record losses and thousands of people fearing for their jobs and requiring the public to step in with loans to back up the bank, that is a matter of public interest now and the Prime Minister has said that that is "unacceptable". He's asked for him to forego this huge amount of money for nothing; and if he doesn't forego it, because it's unacceptable it will not be accepted and the Government will take action.

 

ANDREW MARR:

 

What kind of action can the Government take? I mean Sir Fred said, "This is my contractual right" and you know, in the nicest possible way, get lost, push off.

 

HARRIET HARMAN:

 

Well I don't want to, I don't want to go into all the details of issues that…the methods that might be taken. But I can say this, which is that Sir Fred should not be counting on being £650,000 a year better off as a result of this because it's not going to happen. The Prime Minister has said it's not acceptable and, therefore, it will not be accepted. And it might be enforceable in a court of law, this contract, but it's not enforceable in the court of public opinion and that's where the Government steps in. [CRN emphasis]

 

ANDREW MARR:

 

It sounds to me like you might have to take special legislative action if you're going to, if you're going to do that because, as you said, in the court of law he's probably in quite a strong position.

 

HARRIET HARMAN:

 

Well I don't want to jump the gun here because the Prime Minister has asked for him to forego it and obviously we want him to do that. That's the most straightforward and honourable way of doing it. Secondly, it's being crawled over by the lawyers to see whether it is actually an enforceable legal contract. So I don't want to jump ahead of it, but I do want to be clear that the Prime Minister has been quite emphatic about this, that he regards it as unacceptable. As we all do. It obviously is.

 

ANDREW MARR:

 

(over) And something will happen. He's not going to keep that money?

 

HARRIET HARMAN:

 

He's not going to be better off by £650,000 a year as a result of bringing a bank to the brink of collapse, threatening jobs and causing public money to have to be brought in to stood behind the bank.

 

 

So there we have it: “The Court of Public Opinion”. Wherever does this “court” meet and deliberate? How is its remit defined by the constitution? Who are its judges and jury? We know the answer. What Harman means is that the government has a democratic “mandate” and so can represent “public opinion” and can overrule the legal system.

 

Technically she is right. The government can do this. Under the British constitutional arrangements the government can pass legislation (to, say, make a previously legal contract illegal) and crucially it can backdate the implementation of that legislation. And so Sir Fred’s pension contract could retrospectively be made illegal – in theory. In practice how this would cut across other people’s contracts would have to be determined. In practice it is surely a non-starter. Harman is overreaching.

 

Fred the Shred may be contemptible. His greed and disregard for common morality may offend us and contribute to undermining the sense of trust upon which our society depends to function. But Harman as a senior representative of the government is teaching us how to undermine the rule of law and the weapon she is using for this is the popular vote. We do not need to be historians to draw the obvious parallels of this with the past. Many dictators and demagogues have appealed to the populace to sanction their desires to overturn society and the rule of law.

 

We have to keep our heads in the awful financial situation we are faced with. But what we are seeing here is the Deputy Prime Minister of our country sketching out (explicitly with the approval of her Prime Minister) a scenario where democracy overrules law. This is the path to chaos and breakdown.

 

The fact that she is capable of publicly articulating such a view tells us a lot about the way our government sees its role. The fact that she can make such remarks without offending our existing political culture tells us volumes about the prevailing disregard has for the very things that protect us from dictatorship.

 

The public awareness of the odious Fred the Shred will come and go. The distress and misery he has caused will remain for a few generations. But if we throw away the very principles of justice upon which our society is founded then we can do permanent long term damage.

 

The greatest long term danger is not with an unscrupulous knighted banker, who has profited from a ludicrous credit boom created by an economically illiterate administration, and it is not with hedge funds, who play with the financial life of the country as if it were a casino.

 

It is with a populist political culture that cares nothing for our deep rooted principles of government. We may thank Ms Harman for making that danger clearer than ever.

 

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If you wish to comment on these articles or any other matter email

peterkellow@republicans.org.uk

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……. …….until next week