Andrew Marr asks Who Runs Britain?

Posted on September 6, 2014 by Andrew Defty

Scan001In the current edition of Prospect magazine, the BBC journalist, Andrew Marr dips into the debate about where the power lies in Britain today, with an imaginatively titled piece. Marr offers a tour de horizon of forthcoming political challenges including the independence referendum in Scotland, the general election and the possibility of a referendum on EU membership. He also notes a marked decline in trust in the political structures which are perhaps best placed to deal with these challenges. Recent revelations about the ‘incestuous’ relationship between politicians and the media, and about MPs’ expenses have it is often suggested resulted in widespread popular mistrust of politicians, which, coupled with declining membership of political parties, and falling electoral turnout, suggests a crisis in British democracy.

However, Marr suggests the real explanation for the declining trust in British political institutions is not so much the behaviour of those involved, as a longer term process of devolving power away from those institutions: ‘faith and engagement in the British political system has fallen to a damaging low because real power has moved away to the lords of money  and the commissioners of the EU; and the electorate has started to notice.’ Power he suggests has ‘migrated to the City, and the big global corporations’ and to a lesser degree the European Union. Disentangling Britain from the latter is a simpler and more electorally attractive prospect, but is unlikely to see any real shift of power back to Westminster as long as global capital can continue to flout national regulations and tax regimes.

This argument about the hollowing out of the state is hardly new, and Marr himself observes that many of the recent developments have roots dating back more than twenty years. He does suggest, however, that there are some signs of hope. Whilst not underestimating the difficulties of reining in the power of global capital Marr does suggest that an international response might be possible (including through the EU), he also notes evidence of politicians fighting back in some corners of Westminster, most notably the Public Accounts Committee. Marr also points to a growth in support for independent and non-traditional parties as evidence of a ‘new politics’, and  most significantly, he observes the forthcoming referendum in Scotland has generated ‘a better-informed and more vigorously active political debate than at any time in his lifetime’. Whether any of this will lead to substantive change, Marr states, is a question for another day, but his article suggests the answer to the question who runs Britain? is likely to be contested for many years to come.

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War, politics and tennis: MP Keith Simpson’s Summer Reading List

Posted on July 11, 2014 by Andrew Defty

Each year, shortly before the summer recess, the Conservative MP, Keith Simpson, publishes a summer reading list. Simpson is Parliamentary Private Secretary to the Foreign Secretary, William Hague, and his list is, notionally at least, designed to provide instructive, rather than recreational reading, for Ministers in the Foreign Office.

This is an interesting idea. Government Ministers are often criticised for failing to learn from past mistakes, making policy without taking account of the available evidence, and more generally for a lack of an intellectual hinterland. While some, such as the boastful Michael Gove, claim to successfully combine a Ministerial career with a level of literary consumption comparable to a Booker prize judge, others will freely admit that the demands of being a Minister are such that they can do little more than fight political fires and hope their civil servants have the time and the inclination to ensure that they avoid past mistakes and keep up with recent developments. While the long summer recess does perhaps offer more time for reading in full, books which don’t come with an executive summary, like the reading lists handed out by university lecturers at the end of the summer term, Simpson’s list is, I suspect, produced more in hope than expectation.

Nevertheless, whilst it may not be as eagerly awaited by his colleagues  in Westminster as he hopes, Simpson’s annual list does now generate considerable interest amongst political hacks, reviews editors and, one suspects, publishers. The list has become longer in recent years, and is padded out with Simpson’s observations and comments, which mean that the list itself is an entertaining read even for those who don’t intend to spend their summer trawling through the recommended books.

Simpson is a published military historian and a former lecturer at the Royal Military Academy at Sandhurst, and his annual list reflects his interests in politics and history, and military history in particular. As a result there is more than a little of the prophet of doom about his lists. This year, for example, he begins with the following sage warning:

Historically, July, August, September have been months of crisis in international affairs, and this summer we commemorate the centenary of the First World War. Parliamentary colleagues who are already yearning for sun and sand may seek escapism in bodice ripping novels, or what Lloyd George referred to as “shilling shockers”. But the more discerning of us, and I include husbands, wives and partners, often seek more substantial literary fare. As usual this selection is personal, and mainly consists of books published this year with an emphasis on history, military history and politics – a sound basis for any political career, and maybe, it would have benefited Tony Blair, if as it is alleged, Roy Jenkins had mused that it would have helped him as Prime Minister if he had read history rather than law at university. Maybe.

This year’s list is a combination of the customary hefty political biographies, military history, some academic work and, more bizarrely, Speaker John Bercow’s book on tennis! Unlike Michael Gove, Simpson rarely lets his politics colour his choice of recommended reading. There are biographies of Roy Jenkins, Clement Attlee and Karl Marx’s daughter Eleanor, on this year’s list. He also recommends the ‘entertaining, opinionated and partisan’ biography of Parliament by the Labour MP, Chris Bryant.  There are nods to a number of other parliamentarians in this year’s list including Kwasi Kwarteng’s history of empires, Tristram Hunt’s Ten Cities that made an Empire, and Paddy Ashdown’s book on the cockleshell heroes. Somewhat less appealing is the former MP, Denis Macshane’s contribution to the growing genre of political prison diaries.

There is also some solid academic work on party politics in here. Most notably, Tim Heppel’s The Tories, and Goodwin and Ford’s Revolt on the Right. This attempt to explain the rise of the radical right, and notably UKIP, may well be pored over by Conservative election strategists in the coming months.

As a military historian it is not surprising that in the centenary year of the outbreak of the First World War, a slew of books on the subject sit at the heart this year’s list. Appropriately enought these include a number of books on the events leading up to the outbreak of war, and also the aftermath and memorialisation of the conflict. Like all good historians Simpson is quick to point out the contemporary relevance of the raft of new work on the conflicts of the last century.

Simpson’s list will not be to everyone’s taste, and like all such lists, will generate as much interest for what is omitted as for what he includes. In case you were wondering there is, perhaps not surprisingly, no mention of Thomas Piketty.  And of course one can always flick through and see how many of the books one has already read. For the record, a paltry four, and not the novels of Sandra Howard!

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Fixed penalties for school absences: a case for judicial review

Posted on July 1, 2014 by Andrew Defty

One government policy which has attracted considerable attention, perhaps because it has particularly upset middle-class parents, is Michael Gove’s tightening up of the rules regarding term-time absences from school. The Sunday Times reported last month that a campaign for judicial review of the policy was being organised by group of parents under the banner, ‘Parents Want a Say’. The campaign was being supported by the Liberal Democrat MP, John Hemming, and is based on the argument that the penalty represents a breach of the right to a family life, which is protected under the Human Rights Act. This week’s Sunday Times reported that ‘a high flying executive’ (a banker from JP Morgan), was about to mount a test case, by refusing to pay a fixed penalty notice issued by his local authority when he took his children out of school to attend a memorial service for their great-grandfather in America. By refusing to pay the fixed-penalty fine of £60, the parent can be fined up £2500 or be given a custodial sentence.

I’m not a lawyer and the case may very well succeed. However, it is far from clear that this will open the door to further cases from those who have been fined for taking their children out of school to take advantage of cheaper holidays. If the case has been reported accurately then this would seem to be based on an exceptional family event rather than a simple holiday, and one wonders why the headteacher involved did not exercise the discretion which the regulations permit, and  authorise the absence in the first place. It seems to me, rather than basing a case on the Human Rights Act, more appropriate grounds for a judicial review of the policy of imposing fines on parents who take children out of school for holidays may be to argue that the Secretary of State for Education, has exceeded his powers by changing the rules to such an extent that they are now being applied in a way which was never intended when the legislation permitting such fines was passed by Parliament.

While media attention has often focused on legal challenges based on the Human Rights Act, the most common form of judicial review, and the one on which politicians have most often found themselves hung up, is the doctrine of ultra vires. This is based, not on the notion that in pursuing a particular policy, politicians or public bodies have transgressed the law, but that they have gone beyond the powers given to them in legislation. The application of this doctrine by the courts has created considerable tensions between politicians and the judiciary for a number of reasons:

  • firstly, arguments often revolve around the interpretation of  particular pieces of legislation and what parliament did, or did not mean, when the legislation was passed. Politicians who have fallen foul of judicial review on the basis of ultra vires, such as the former Labour Home Secretary, David Blunkett, often argue that they are merely applying the law as Parliament meant it to be applied, and as Members of Parliament, they are much better able than judges, to determine what Parliament intended;
  • another potential source of conflict, and one explanation for the increase in the number of cases of judicial review, is the process of amending the law by the passing of Statutory Instruments, sometimes referred to as delegated or secondary legislation. These are in effect alterations to Acts of Parliament, by a Secretary of State without recourse to Parliament, that is without the need to introduce new legislation, which would, therefore, be subject to Parliamentary scrutiny and debate. Statutory Instruments are passed on basis that the changes being introduced fall within what was allowed by the original legislation. Cases of Judicial Review often involve challenges to changes introduced through Statutory Instruments,  on the grounds that they have exceeded the aims of the original legislation. In such cases it is argued Ministers have sought to introduce substantive changes, effectively through the back door, without proper Parliamentary scrutiny.

In the case of Mr Gove and fixed penalties for school absences, penalty notices were introduced by the previous Labour Government, as part of the Anti-Social Behaviour Act 2003. This amended the 1996 Education Act to allow for the imposition of a penalty notice, (a fine payable to the local education authority) by parents for ‘failure to secure regular attendance at school of registered pupil’. The Anti-Social Behaviour Act did allow for the subsequent drafting of regulations regarding the form and content of the penalty notice, including the amount and the circumstances in which it might be applied.  Regulations were passed as part of a Statutory Instrument in 2006, to allow headteachers to grant leave of absence for up to ten days holiday in each year. The form of the penalty notices were set out in another Statutory Instrument in 2007, which gives headteachers authority to impose fixed penalty notices, but appears to allow considerable discretion, and differential practice, by leaving it to local education authorities to draw up codes of practice with regard to the consistent application of penalties within an LEA area.

The new regulations, were introduced by Mr Gove, as Statutory Instrument 756, which came into force on 1 September 2013. It tightened up the rules regarding when headteachers could authorise an absence, by stating that headteachers could only grant leave of absence in ‘exceptional circumstances’ and that these would no longer include up to ten days a year for a family holiday. As a result absence for holidays would now be classed as unauthorised absences, this placed them in the same category as truancy and left parents who take their children out of school for holidays open to the imposition of the same fixed penalty applied to the parents of children playing truant.

The test case currently being considered under the Human Rights Act may well stand or fall on the basis of whether the absence of the children in question should reasonably be classified as a family holiday or as an exceptional circumstance. This does not, however, get to the heart of the matter which is that parents can now be fined, and notionally imprisoned, for taking their children out of school for one day’s holiday in a year. This, it seems to me, may be more appropriate grounds for judicial review, on the basis that this was not what was intended when fixed penalty notices for absences from school were introduced, and that by changing the regulations in this way Mr Gove has exceeded his powers. Fixed penalty notices were introduced as part of the Anti-Social Behaviour Act as a means to combat repeated truancy from school. Taking children on holiday, whatever schoolwork they may miss (which in itself is a moot point), surely cannot be construed as anti-social behaviour, and to take children out of school for a small number of consecutive days in a year can hardly be considered as persistent or repeated absence.

The proposal to introduce fixed penalty notices for truancy was the subject of considerable debate, and indeed opposition, when the Anti-Social Behaviour Bill was making its way through Parliament in 2003. Several MPs raised questions about the desirability and practicalities of making teachers responsible for imposing and collecting fines from parents. The Opposition Conservative education spokesperson, Oliver Letwin, was particularly critical of ‘the mind-numbing idea that teachers could hand out fixed penalty notices to the parents of children at their school’ concluding that, ‘I cannot imagine how the Home Secretary imagines that such a provision would be workable’ (Hansard – Commons, 8 April 2003 col.152).  The Conservative MP, John Bercow, now Speaker of the House of Commons, was critical of the ‘breast-beating Home Secretary’ who appeared to be legislating ‘simply to feel better or to appeal to the Daily Mail or other tabloid newspapers’ (Hansard – Commons, 8 April, 2003, col.195). The Conservative MP, and former teacher, Liz Blackman, expressed ‘grave concerns’ about the notion that teachers would be responsible for imposing fines on parents (Hansard – Commons, 8 April 2003, cols.177-179), a view which was echoed by several members who felt it would would damage the relationship between schools and parents, including the Liberal Democrat MP, Annette Brooke, who observed that, ‘it is incredibly undesirable for head teachers and teachers to impose fines for truancy: a separation is needed between enforcers and those who are trying to work with children and their families’ (Hansard – Commons, 8 April 2003, col.185)

Of course the point is not that the current government is doing something which they opposed in Opposition, governments do this all the time, although it is always worth pointing out. However, the grounds for judicial review of Mr Gove’s change in the regulations lie in the clear implication during the passage of the Anti-Social Behaviour Act, that fixed-penalty notices were solely designed to deal with persistent and problematic truancy, and at no point was it suggested that they should be used to prevent parents taking their children out of school to go on holiday or take part in other supervised activities. In introducing the Bill, the Home Secretary David Blunkett referred to the need to tackle ‘the few parents whose behaviour is not only a terrible example to their children and others, but a disruption to the life and work of schools’ (Hansard – Commons, 8 April 2003, col.144). Far from suggesting that parents were taking children out of school to attend other supervised activities such as holidays or family events, the debate centred on the notion that children who were playing truant were not under the supervision of anyone else and a result truancy was seen a route into bad behaviour.  The Labour MP, Ann Coffey, argued that the package of measures in the Bill were designed to help children from ‘chaotic families’, in order to ‘keep those children from failing at school, turning to criminality and costing the state thousands in secure accommodation, youth custody and years in and out of jail’ (Hansard – Commons, 8 April 2003, col.188). It hardly seems credible that the same legislation is now being used to prevent children from going on holiday, attending family weddings, memorial services and sibling’s graduation ceremonies.

It is important to remember that the point here is not that taking children out of school in order to take advantage of cheap holidays is not damaging to their education. An additional ten days holiday each year throughout a school career adds up to more than 20 weeks of schooling, which may have a profound effect on the education of some children. However, taking children out of school to attend other supervised activities is not the same as children absenting themselves from school in order to hang around on street corners or play video games at home. Crucially, in applying legislation designed to combat truancy in this way Mr Gove appears to have gone some way beyond what Parliament intended when the legislation was passed. The Government is perfectly entitled to bring forward new legislation to combat this problem, if indeed it is a problem, but it should be the subject of new legislation, and the requisite parliamentary scrutiny which this would entail. Until that point, I would argue that Mr Gove’s application of the Anti-Social Behaviour Act in this way remains open to judical review.

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European Election Prospects in the East Midlands

Posted on May 20, 2014 by Andrew Defty

On Thursday more than three million voters across the East Midlands will be electing five Members of the European Parliament, in a poll which should provide an early indication of support in advance of next year’s general. In reality only around a third of that number are likely to vote and all of the main parties would be wise not to draw too many conclusions from the outcome. Members of the European Parliament (MEP) are elected using a proportional electoral system which distributes power to a wider range of parties than in national elections in the UK. Moreover, MEPs are elected in large constituencies each returning several members. In place of the 650 constituencies which each elect one MP in British general elections, Britain will elect 73 MEPs, from 12 constituencies. The East Midlands region which comprises the counties of Lincolnshire, Leicestershire, Northamptonshire, Derbyshire, Nottinghamshire and Rutland will elect five members to represent the whole region.

The size of constituencies in European elections, and the potential for fluctuating turnout can make it difficult to predict the results. In the East Midlands strong support for the Conservatives in Leicestershire and Lincolnshire, is balanced by Labour support in Derbyshire and Nottinghamshire, while there are significant pockets of support for the Liberal Democrats, particularly in Leicestershire, and for UKIP in Lincolnshire. However, the multi-member constituencies coupled with a proportional voting system means that the spoils tend to be shared between the parties, with the result that there are a wider range of parties representing the UK in the European Parliament than there are at Westminster.

Moreover, one potential consequence of the low turnout is that parties with relatively low levels of public support have been able to make gains in European elections. This is because in elections in which few people vote, those who do vote tend to hold strong views on the subject and as a result elections with lower turnout can favour parties with more extreme views. Despite what the media may suggest, polling indicates that Europe is not an issue about which the majority of the British public have particularly strong views, but it is one about which a minority of voters have very strong opinions, with the result that parties on the extreme end of the political spectrum have been able to make the kind of gains in European elections that they would struggle to repeat at a general election. If British citizens want their representatives in Europe to more accurately represent their views then they should turn-out and vote on Thursday and not leave the way open to parties with strong but minority support.

EU 2009

In the East Midlands in the last European elections in 2009, the Conservatives secured 30% of the vote and two seats, Labour got 17% of the vote and one seat. Although UKIP beat the Liberal Democrats into fourth place, both won one seat each. UKIP gained an extra seat at the expense of the Conservatives, when Roger Helmer defected to UKIP in 2011, and the party will be hoping at the very least to hang onto both seats in the East Midlands. UKIP is currently riding high in national opinion polls which suggest that it will do considerably better than in the last European elections when the party came second.  UKIP will be hoping to build on the successes of last year’s County Council elections when they secured 23% of the vote nationally and returned their largest number of councillors, in many places beating the pro-European Liberal Democrats into fourth place. One of the party’s most significant achievements was in Lincolnshire, where UKIP’s share of the vote was second only to the Conservatives, and it became the second largest group on Lincolnshire County Council.

However, UKIP may struggle to improve its position in the East Midlands. UKIP has considerably less support in the rest of the East Midlands than in Lincolnshire. Although the party beat the Liberal Democrats into third place in most places in last year’s county council elections, they have only a handful of county councillors in Leicestershire and Northants and none at all in Derbyshire and Nottinghamshire. There is an emerging pocket of support in the tiny county of Rutland, where three independent councillors joined UKIP last year, but their allegiance has not been tested at the polls and the number of voters involved is unlikely to have a decisive impact on the European poll. If UKIP are to hold on to two seats in the East Midlands they will need to almost double the share of the vote they received in the last European elections. While national polls suggest a significant increase in support this is still a big leap. Whether UKIP are able to achieve this will be largely dependent on whether large numbers of voters follow Mr Helmer from the Conservatives to UKIP. Mr Helmer who is top of UKIP’s list for the region, is almost certain to be re-elected, but will be hoping to step down shortly afterwards if he can win the Newark by-election in June.

council

A further problem for UKIP in the East Midlands is the prospect of a split in the Eurosceptic vote. While UKIP is likely to pick up votes from Conservative voters who feel the party needs to be more decisive and united on Europe, UKIP is itself divided in Lincolnshire. Since the high point of last year’s county council elections fractious divisions among the UKIP councillors on Lincolnshire County Council led six UKIP councillors to split from the party. Several members of the breakaway group, including Chris Pain, the former leader of UKIP on Lincolnshire County Council, are standing in the European elections under the banner Independence from Europe. The divisions in Lincolnshire, are to some extent reflected elsewhere in the country where recent reports suggest that almost 10% of UKIP councillors have stepped down since last year. This may lead to UKIP losing support both from voters disillusioned with their performance in office, and also to alternative Eurosceptic parties.

council nos

Nevertheless, UKIP may be the only party with anything to celebrate when the results come in. Although the Conservatives secured the largest share of the vote in the East Midlands in the last European elections, with almost twice as many votes as second-placed Labour, the party was in opposition then and facing an unpopular Labour Prime Minister. The Conservatives are losing the most votes to UKIP and the defection of Roger Helmer coupled with the recent resignation of the MP Patrick Mercer have been an embarrassment for the party in the region. Labour, however, have failed to capitalise on their poll lead over the Conservatives and Ed Miliband has perhaps has the most to lose if Labour does not perform well in the European and local elections. The Liberal Democrats have languished in the polls since 2010 and their share of the vote barely got above single figures across the East Midlands in last year’s County Council elections. They will be lucky if they hang on to a seat. Most of the parties, and perhaps most of the public too, will breathe a sigh of relief when these elections are over. Unless of course they live in Newark where campaigning will simply carry on until the by-election in June.

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Is he frit? Nigel Farage and the Newark By-election

Posted on May 9, 2014 by Andrew Defty

IMG_0439When Margaret Thatcher taunted the then Labour leader, Michael Foot, that he was ‘frightened, frit’ by the prospect of a general election in 1983, Labour went on to suffer their worst general election result since 1935.The Conservative Party will be hoping that Nigel Farage’s decision not to stand in the forthcoming by-election in Newark will portend a similar fate for the UK Independence Party in next year’s general election. However, while Thatcher faced a divided opposition, on this occasion it is the Conservative Party which is in danger of splitting, and UKIP who are, for the time being at least, riding high in the polls.

While the other parties will be keen to suggest that Nigel Farage is too ‘frit’ to stand in Newark, from UKIP’s perspective this is probably a sensible move. UKIP have a significant poll lead going into the European elections but their chances of winning a by-election in Newark, likely to take place in June, are slim. UKIP came fourth in Newark in the 2010 general election, with less than 4% of the vote. There are no UKIP councillors on the district council and, unlike neighbouring Lincolnshire, UKIP failed to win any seats in Nottinghamshire in last year’s county council elections. Newark should be a safe Conservative seat. The seat has been held by the Conservatives since 2001, when Patrick Mercer won it back after a brief period of Labour control from 1997, and at the 2010 general election the Conservatives increased their share of the vote in Newark. While the Conservatives will almost certainly lose votes in the forthcoming by-election, and may even lose the seat, it would require a massive change of fortunes for UKIP to actually win it.

In explaining his reasons for not standing, Mr Farage also suggested that he had no links to the East Midlands and that he did not want to appear to be an opportunist. Farage, who was born in Kent and schooled in South Londonhas been an MEP for the South-East of England since 1999. He has stood for election in a number of European and Westminster elections in a range of constituenciesacross the South of England. At least some of these could clearly be seen as opportunistic, most notably standing against the Speaker, John Bercow, in Buckingham in the 2010 general election. Moreover, it seems unlikely that Mr Farage would have been quite so reticent had a seat become available in an area with more significant support for UKIP on the ground, Boston and Skegness, for example.

However, Farage’s reluctance to grasp this opportunity does perhaps suggest a more careful strategy, as UKIP now appear closer to real electoral success than at any time in their past. Farage, who has been linked to a diverse range of seats from Hartlepool to Great Yarmouth, will already haveselected a seat to contest in 2015, and is unlikely to risk this for short-term gain now. Apart from anything else UKIP hardly need any more publicity at present. However, although Farage’s suggestion that candidates should have some link to their prospective seat may be a hostage to fortune, don’t be surprised if we later learn that as a child Mr Farage spent every holiday on the beach at Skegness.

Any relief in Conservative Central Office at Farage’s announcement that he is not standing in Newark is likely to be short lived. The Conservatives haven’t won a by-election since the 2010 general election and UKIP have come second in the last five by-elections in England, pushing the Conservatives into third and even fourth place. However, the real danger for the Conservatives in Newark is a resurgent threat from Labour. The problem for the Conservatives of having a by-election this close to the general election is that Labour already have a candidate in place in Newark, and have been campaigning for some time. The Conservatives will need to find a new candidate, and will also need to persuade the voters that Mr Mercer’s flaws were not indicative of a wider malaise within the Party. They will inevitably lose votes, the question is how many.

Much may still hang on the European Parliament elections in May. For UKIP, the strongest argument forFarage standing in Newark was the hope that following what are likely to be significant gains in the European elections, UKIP could ride a wave of support which would give them victory in Newark. Similarly if, as is expected, the Conservatives do badly in the European elections, this is likely to depress the Conservative vote in the Newark by-election. However, the Newark by-election will also be a significant test for Labour. In campaigning for the European elections in recent days UKIP have been keen to suggest that they are winning support not just from traditional Conservative voters but also from disgruntled Labour voters. Although the evidence to support this is limited, if Labour do worse than expected in the European elections then the prospect of causing an upset in Newark will be slimmer.

Parties rarely welcome by-elections this close to a general election and for whoever wins in Newark their response is more likely to be relief than elation.

This post also appears in this week’s Lincolnshire Echo.

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