Though Cowards Flinch

Today the Scottish government is passing legislation leading to a 50p minimum price per unit of alcohol.  The legal provisions have the support of all parties.  The UK government is set to follow suit, though at the moment 45p per unit is the figure being bandied around.

All this would be, except that the research on which the legislation is singularly dependent doesn’t say what the legislators in England and Scotland say it does.  I do wonder if any of the legislators have actually bothered to read the research. If they had, and if they’d appraised it honestly, the legislation would not have been passed in Scotland, and would not be in hand in England.

The research both governments depend on is from the University of Sheffield Alchohol Research Group.  The Scottish Government commissioned research and “modelling” from the Group, with its most recent report delivered in January 2012, and research for England in 2009.  The England report contains a more detailed methodology, but both studies are similar in design and the data used.

Here the crucial bit of the England report:

The elasticity matrices [the method used in the research] on their own are not sufficient to reveal the likely behaviour of the population to price changes, since these also depend on the preferences for beverage, drinking location and price point that the different sub-groups exhibit. However they do form a useful starting point for analysis, and can be compared with existing results from the literature. (p. 50)

My rough (and I admit slightly mean-spirited) translation:

The researchers don’t know whether the results the legislators want will be achieved or not through a minimum unit price, but they’ve gone out of their way to provide some mathematical modelling which suggests it might because, after all, that’s what the legislators want and they paid for the research.

The research depends for its findings on a complex set of mathematical modelling, with log-log analysis of the relationship between price and consumption, changing over time, at the heart of this.  The data comes from five years of the annual Expenditure and Food Survey and, in the case of the more recent Scotland report, the Scottish Health Survey.  This is sample data based on respondent completing diaries of what they purchase and consume over a two week period.

The principal outcome of the modelling is a set of  ”elasticity matrices” in which the relationship between increase in minimum unit price and change in consumption is modelled for various population types, including moderate and heavy drinkers.  The model suggests that a 50p minimum unit might decrease overall consumption by 5.7% (Scotland research, Jan 2012).

It’s an impressive piece of work in its own terms, but it simply doesn’t find what those desperate to find a ‘solution’ to people drinking too much say it does.  Indeed, there is a strong indication that the real rationale for the mathematical modelling is to provide a fit with other research into the relationship between alcohol price/tax and consumption (not, note, minimum unit pricing):

Recent systematic reviews and meta-analyses by Gallet (2007) and Wagenaar et al (2008) found, respectively, a median elasticity for alcohol of -0.535 and a mean elasticity for alcohol of -0.51. By comparison, our elasticity matrix for all of England shows broadly similar results, with own-price elasticities ranging from a least elastic estimate of -0.2350 for on-trade higher-priced spirits to a most elastic estimate of -2.9386 for on-trade low-priced spirits.

The problem is that these meta-analyses don’t really show what the researchers and legislators want them to show either, even though they are meta-analyses of the general relationship between price and consumption (where you might well expect an inverse relationship)

 Take the Wagenaar et al. study:

Price/tax also affects heavy drinking significantly (mean reported elasticity = -0.28, individual-level r = -0.01, P < 0.01), but the magnitude of effect is smaller than effects on overall drinking.

This is the opposite of what the legislation is aimed at: heavy drinking leads to anti-social behaviour and increased health problems.

The Wagenaar report also recgonises that not all may be as it seems from the 112 studies it analyses:

[P]ublication bias(or, more generally, small-study bias) is always a threat to the validity of a meta-analysis. Statistically significant findings are more likely to be published than those that are not significant with one estimate suggesting that the odds of publication are 2–4 times greater when results are statistically significant. Thus, it is possible that a substantial number of studies with non-significant effects remain unpublished.

So what’s going on?  Why are the English and Scottish governments apparently so keen to push through legislation which is wholly based on wholly spurious evidence?

Why, on the other hand, is the Scottish government apparently so keen to overlook the research ‘findings’ that a 70p per unit price would lead (p.5 of report) to a 16.9% reduction in consumption, while the 50p price actually adopted will read to a 5.7% one? Does it not have the courage of its public health convictions? Or is is, perchance,  that a 70p unit price would put the price of ‘decent’ wine up, while the 50p one only affects the really cheap alcohol that the poor people drink?

The answer to these rhetorical questions is simple enough. 

There is a problem-drinking problem – that can’t and shouldn’t be denied.   The respective governments are desperate to be seen to be doing something. 

Doing something genuinely effective about it is beyond them, because that would mean putting in place policies (and government spending) which lead to people having realstic choices other than blotting out – at least for the night – what they have to live with.  That’s not a new, or British cultural problem – re-read the Paris bit of George Orwell’s Down and in London and Paris to remind yourself of that.

So the easy option is to put in place legislation aimed (almost certainly ineffectively) at a certain type of person most in the public eye.  Owen Jones calls them ‘chavs’. They’re probably called something else in Scotland.

And when the minimum price measure fails – and it will fail - at least the problem-drinking problem will be set out clearly in terms of the ‘target population’ (those chavs who got round the law by spending more on booze/buying it illegally), and the need to control it more effectively.  That’s even written into the ‘sunset clause’ provisions of the new Scottish Act.

The Scottish and UK governments perverting the role of science for short-term political ends at the expense of  social cohesion. Who’d have thought it?

Anthony Painter has an interesting article up at Labour List about Labour, and the possibility of an EU referendum if it comes to power in 2015. 

It’s good that the debate is now being had (I had first say on it a couple of weeks ago, but it does take other blogs a while to catch up), but I disagree wholly with Anthony when he advises the Labour leadership thus

Act irresponsibly and the consequences could be severe. This is one of the moments when indecision is justified. Don’t play political games with the national interest.

With this, he’s a bit too close for comfort to Alex Massie’s sneering rubbish at the Spectator:

The Better Off Outers at least have a respectable case for their beliefs and, rather importantly, actually believe Britain would be better off outside the EU…….That can’t be said of a party that so obviously makes a game of what might be thought quite an important issue.

The problem for both writers (and for Gabby Hinsliff/Mark Rusling) is that they fail to recognise that:

a) The European Union is not what it was pre-2008;

b) By consequence of a), it is perfectly admissible for the Labour party to adopt a wholly different stance to the EU from the one adopted in 1974, and that it does not need to be bound by its previous support for EU membership;

c) This would not be playing games with the national interest, the electorate, or anything else; it would be developing a coherent political position to put to the electorate.

So, I’m sure readers will be asking, if I had the Labour leadership’s ear like Anthony has the Labour leadership’s ear, what would I advise and why?

My advice to Ed and Jon would go something like this.

First, clarify why Labour thinks a referendum in 2018 or so would be a good idea.  This is because, in the wake of both the 2008 crash and the Lisbon Treaty (1), the European Union is markedly different from the one that British voters chose to join and then remain in.  

This is the opportunity to differentiate Labour from the Tories over Europe.   Labour should be openly critical of the way the institutions of the European Union has been hijacked by the Right to set disastrous neoliberal policies in law.  

Unless this can be changed in the 2014-18 period, Labour should say, then it may well be that Britain will be better off outside the EU.

Second, make clear that for the reasons set out above Labour has not yet decided what position it will take when it comes to a referendum.  

The reason Labour wants to defer a referendum to 2018 or so is not because it is ‘playing games’, but because it is developing a clear strategy to engage with other centre-left governments and parties in Europe to change what how the EU operates; only when it has had a chance to do this will it be in a position to decide whether in or out is in the national interest.

In short, Labour should be showing that it’s leading the charge to change European institutions for the better, not simply accept it for what the Right has made it.

Third, recognise that 2018 is a long way away for voters.  After all,  around 8-10% of people voting now will be dead by then.  

Thus, a 2018 referendum promise must be tied explicitly to the 2014 European parliamentary elections.  Labour should be stressing right now how important these elections are;  the national parties that make up the Party of European Socialists (PES) has  a real opportunity to take an overall majority in Strasbourg, and with that majority comes the opportunity to amend European law currently stacked against the working class/ordinary people/the poor. (2)

Fourth, the importance of the 2014 election should in turn be linked to Labour’s selection process for those elections, likely to take place later this year/early 2013. 

As a display of  strong leadership combined with evidence that Europe really, really matters to Labour now, Ed Miliband should take to conference plans to rejig the selection process in the way Jon Worth suggests i.e. by opening up the list to non-incumbents as part of  wider process to re-energize Labour’s team in Strasbourg for a parliamentary period when fundamental battles will be fought about the nature of Europe’s institutions.  

It is an indictment of the current system that someone like Jon, a socialist who has lived and breathed Europe for a decade, feels he has absolutely no chance of being selected, primarily because he’s actually spent his time in Europe rather than oiling the selection wheels in London.

In summary, Labour needs to be bold on Europe, and go much further, much sooner, than the first tentative steps it has taken in the right direction.  It needs to see itself as a pro-active force on Europe, aggressively differentiating its own pro-activity from the reactionary little-Englander nonsenses of the Tories. 

Labour (and the commentators who support it) need to stop worrying that an EU referendum will ‘define’ Labour’s first parliamentary term (assumed to be in some way for the worse), and instead be confident that it will be seen by voters as an integral part of strong Labour party project.

Labour needs to enunciate clearly that Europe is not currently working for working class people, because its institutions have been captured by the Right, and it needs to have a clear plan for their recapture by the Left.  This is not an anti-Europe stance. This is an anti-rightwing Europe stance.

Labour needs to be clear on what it means by European democracy, and it needs to put in place the right people to make European democracy work. 

Finally, Labour needs to ensure that what Europe does now, and what it can do, is understood by the electorate, primarily through the prism of the financial mess we’re in now.  People now ‘get’ Europe, in a way they didn’t in 2008.  Labour’s job is to build on that new consciousness.

(1) In particular, Labour should focus on the need for a (centre)-left led redrafting of the Lisbon Treaty. 

At the heart of the mush-that-is-now-Europe is the establishment of the Council of Ministers as a decision and law-making body in direct competition with the European parliament, as evidenced that we now have two sets of laws concerned with fiscal management of the Union – one an (unratified) intergovernmental treaty in the form of the Fiscal Compact, and the other the ‘six pack’ of regulations already made law by the European parliament.  Officially the European Commission says that these will work ‘in parallel’, but in reality they reflect a power struggle between two competing ideas of what European-level democracy is supposed to be.

Labour should therefore be clear that it favours the European Parliament as the supreme lawmaking body, while also making it clear that it is committed to ensuring that it has the best possible MEP team in there, rather than allowing the (strong) perception to continue that being a Labour MEP is a ‘gravy-train’ job for people who have served the party loyally. 

Part of this overall process should be a strong commitment – noticeably lacking to date – to the PES ‘fundamental programme’ review and ensuing manifesto development, such that all PES parties across Europe enter the 2014 election with a common manifesto for socialist change in a bold attempt to make the elections something other than a mid-term referendum on domestic government.

(2) I have already covered two areas of European law that I think should be subject to radical socialist amendment in the event of a PES majority in 2014.  Of course there are others (notably around sustainable agriculture and the CAP) but I’d want to see these at the top of my new-style MEP’s priority list.

First, and as noted above, the six-pack regulations on the implementation of the Stability & Growth Pact, which currently enshrine in law neoliberal economic orthodoxy, should be dismantled and replaced with a set of Keynesian prescriptions for management of the economic cycle (or the law simply annulled and macro-economic management handed back to national governments in the event of the end of the euro).

Second, PES should impose through its majority the amendments it failed to get through in 2011 on the human rights safeguards needed when it comes to the development of (free) trade with the developing world.

In June 2014, the people of Europe will go the polls to elect its MEPs for a five-year term.  This will be the 8th time it’s happened, but – courtesy of the crisis and ensuing austerity - for many voters it will be the first European election about Europe, as opposed to a mid-term vote on the domestic government.

There is a big opportunity for the Left here. 

The mainly ignorant media focus is on whether Hollande can persuade Merkel to give way on the as yet unratified Fiscal Pact (aka. the Fiscal Compact) concocted in late 2011 by Merkel and Sarkozy (no, he can’t, is the simple answer).

But the actual opportunity to set the European Union on a different course lies in potential for radical amendment of the regulatory ‘six-pack’ (to be followed by a monitoring ‘two-pack’ this summer), designed to ensure the proper implementation of the original Stability and Growth Pact, and passed into law in November 2011.

If you’re confused by two apparently parallel (com)pacts, don’t worry.  You’re supposed to be. 

There are relatively few people (other than me) who do understand it. Charlemagne at the Economist appears to be one, as does Peter Spiegel at the FT, who says about the less-known six-pack:

Almost unnoticed by the public, the European Union has already begun transforming itself into an organisation with far more central power over national economic decision-making. The European Commission, the EU’s executive branch, has been given authority to demand spending cuts under threat of large fines….

Indeed, it is all so confusing that the European Commission has had to provide its own guide Six-pack? Two-pack? Fiscal compact? A short guide to the new EU fiscal governance, which states helpfully:

The Fiscal Compact, which is the fiscal part of the Treaty on Stability, Coordination and Governance (TSCG) – once it enters into force – and the six-pack will run in parallel.

It’s difficult to work out exactly why we have two parallel systems (other than the obvious explanation that the Compact was a late play by Sarkozy to stave off defeat by looking tough). 

My suspicion is that it’s part of a quiet power struggle between the European Parliament and its Executive, who have passed the six-pack into law (in November 2011), and the European Council (basically the heads of the 27 states), which only became a formal part of the EU structure in 2009 under the Lisbon Treaty. 

Witness, as evidence, how Olli Rehn, Commssioner for Finance (and working through the Parliament,  referred only to the Growth & stability Pact provisions in his speech at the weekend, while Merkel’s Finance Minister prefers to reference the intergovernmental aspects of the Fiscal Compact in the wake of Hollande’s victory.

It is also difficult to know which precise version of  austerity legislation will win out in time.  On balance, though, the fact that the six-pack is in place, while the Fiscal Compact still awaits ratification (notably in Ireland, which may vote ‘no’), means that the real political opportunities for the left probably lie within the Parliament, rather than (via Hollande) the European Council.  Hollande’s team probably knows this, which is why it is content to soft-soap Merkel for the moment.

Of course, the drawback is that the European Parliament will remain under the control of the Right until June 2014.  That’s a long time for Hollande to wait before he can deliver, via the European Socialist Party (PES) MEPs, a radical change in direction, if it gains a majority (although even the prospect of post-election change may be enough to slow up its implementation pre-election).

Nevertheless, the opportunity for PES is to put together a legislative manifesto which has as its centre-point precisely such a change in direction, through a ‘Keynesian’ amendment to the six/two pack regulations.  Such amendments might, for example, include a requirement on the EIB (or individual countries) to fund large-scale investment works when the economic cycle requires it.

The result could be a European election campaign like no other: a central manifesto commitment to sensible anti-austerity macro-economic management, circulated across 27 countries in countless leaflets, seeking a socialist, pan-European mandate.  

Perhaps we might even, by then, be seeing British campaigners on porte-a-porte campaigns in Cergy-Pontoise, while our French comrades hit the streets of Skelmersdale (the towns are twinned).

I’m a geek, but even I thought it was a bit geeky for the PES to launch a two year manifesto development programme, in which socialist activists across Europe are invited to put forward policy proposals (the next stage is a forum in June to collate and assess ideas).  

Now though, I understand absolutely where they were coming from, and will be forwarding a version of this post under both the ‘Fair Economy’ and the ‘Active Democracy’ themes.  There is a real chance, I contend, to put what happens in Strasbourg at the heart of our campaigning in the UK, (probably) one year before a general election, in a way which both creates a route for anti-austerity that not even Merkel can scupper AND shows up just how murky and undemocratic the European Union has been to date.

Yesterday’s speech in Brussels by Olli Rehn, EU Commissioner for Economic Affairs is  a quite astonishing abuse of power, and a major affront to democracy.  No surprise there.

The press commentary to date suggests that Rehn’s speech signals an end to the Merkozy austerity approach, and highlights the following statement as a move towards a new stage in the context of a possible/likely win for Hollande in France:

Contrary to the misleading impression promoted by some politicians and pundits that the EU fiscal framework forces all member states into a ‘one-size-fits-all’ consolidation straightjacket, the Stability and Growth Pact is not stupid. Yes, the EU fiscal framework is rules-based, with clear reference values for public deficit and debt for triggering the excessive deficit procedure and, if needed, sanctions. But, at the same time, the Pact entails considerable scope for judgement, based on economic analysis and its legal provisions, when it comes to its application.

I think the press is interpreting the speech entirely wrongly.

It is NOT an acceptance of change in direction if Hollande comes to power, but an attempt to scupper Hollande before he even becomes President.

I say this for two reasons.

First, it allows the Commission (and Merkel) to pat Monsieur Flanby on the head when/if he comes calling, and fob him off the reassurance that everything is being taken care of, and that he need not worry. 

Second, the speech deliberately refers, NOT to the Merkozy Fiscal Treaty that Hollande has committed to renegotiating in his manifesto, but to the legal changes to the Growth & Stability Pact which were quietly signed into law on 16th November 2011 .

As I set out in detail here:

These six regulations (if you’re short of time, 2011/1176 and 2011/1174 are the crucial ones) mean that the [Fiscal] treaty is little more than the political icing on the cake.  The regulations passed in November, with no oversight from national parliaments and no news coverage to speak of,  already enshrine in law the way in which governments must run their economies, the measures by which they will be judged and (in the Eurozone) how and to what level fines will be levied on countries with “macroeconomic imbalances”. 

Gavin Hewitt now reports that the German Finance minister is promising a growth element in the Fiscal Treaty that Hollande has committed to renegotiating, but this will be for show only.

Under the arrangements quietly put in place even before Merkozy mentioned the Fiscal Pact, the real power will remain with the unelected European Commission.

It is to be hoped that Hollande’s team, if it does come to power this evening, has done its homework (frankly, it didn’t when they drafted this bit of the manifesto), and that the challenge to the Olli Rehn Brussels oligarchy comes quickly.

In this context, Mandelson’s call for a fundamental review of how Europe is governed financially (and a UK referendum to boot) couldn’t have come at a better time (and I assume Mandelson knows this).  Miliband, on this one occasion, would do well to listen to Mandelson, and get behind Hollande.

During this afternoon’s relatively brief Tottenham Court Road siege,  Nick Griffin apparently sent the following tweet:

If hostage taker angry coz refused HGV licence then won’t be a Muslim bomber. They don’t work!

Now, given recent controversies over people sending tweet messages and ending up in court/prison, the obvious question arises: should Nick Griffin be prosecuted?

The most obvious charge that might be laid would be under Public Order Act 1986 (c.64, paras. 18-19):

A person who uses threatening, abusive or insulting words or behaviour, or displays any written material which is threatening, abusive or insulting, is guilty of an offence if:

(a) he intends thereby to stir up racial hatred, or

(b) having regard to all the circumstances racial hatred is likely to be stirred up thereby.

Prima facie, there would seem to be a case for Griffin to answer;  it looks and feels like an absolutely gratuitous insult to Muslims, and his background might suggest that he intended, in sending the tweet, to do some hatred-stirring. 

There are, I think, three technicalities which might make it difficult to secure aa conviction:

 i) hatred towards those of a particular religion does not necessarily indicate racial hatred (though I would contend we might make the assumption in this case);

ii) it might be argued that Griffin was making the point that it is Muslim bombers, as opposed to Muslims in general, who do not work;

iii) The statement that somebody doesn’t work is not, per se, an insult, and can only be construed as one in the context of the tweet.

Nevertheless, it’s arguable that the CPS, if asked by the police to consider this case, might feel that there is sufficient change of securing a conviction for it to pass the first stage of its Full Test Code, the Evidential Stage.

Next in this Full Test Code comes the decision on whether it is in the public interest to make the charge.  As set out here, this is always a matter of judgment, but one factor set out in the code weighing in favour of proceeding to prosecution might be considered in this case:

the suspect was in a position of authority or trust and he or she took advantage of this;

In Griffin’s case, his status as an MEP and leader of a registered political party might therefore count against him.

So should Griffin be prosecuted?

Of course not.  It is decidedly not in the public interest to give someone like Griffin the opportunity to peddle his ‘victim status’ myth.  Nor does it do any of us any favours if the CPS continues prosecuting people for silly tweets, however insulting and offensive they are.

The reason I write all this is simply to show that people like Griffin (and before him Rod Liddle) are utterly wrong when they peddle the myth that the establishment is against them.

In the Spectator Nick Cohen has joined the liberal condemnation of the Liam Stacey prosecution:

This morning Swansea magistrates jailed a 21-year-old student called Liam Stacey for eight weeks for posting racially offensive comments on Twitter about Fabrice Muamba…….. I’ve no doubt that he’s a vile man, who by the sound of it was drunk at the time he posted, but what remains disturbing about the case is that the Crown offered no evidence that Stacey had incited racial violence or any other crime. That his speech was racist was enough to send him down. This verdict, like so many others, shows how little confidence the judiciary has in wider society.

This is poor stuff. 

Cohen doesn’t seem to realise that when someone pleads guilty to a charge, the Crown Prosecution Service doesn’t even get the opportunity to offer evidence (except in the case of a Newton hearing).  Nor does he seem to have noticed that the Stacey case was head by a District Judge, not by magistrates.

The main failure, though, is Cohen’s inability to distinguish between the bringing of the charge and the hearing of the charge. 

The judiciary is bound to hear whatever case is brought before it, and while the sentence was certainly on the stiff side, it certainly wasn’t outside sentencing parameters.

But, as I set out here, the main issue with this case was not how it was heard, but why the CPS brought it.  In particular, I questioned why the public interest test now seemed to include consideration of the media profile of the case. rather than on the actual content of the offence. 

As it happens, the CPS appear to asking the same question of itself.  On Wednesday, the CPS’s issued what looks like a carefully considered press release about the views of its lead sports prosecutor, who appears to be making a clear reference to the Stacey case:

Harassment through social media is covered by existing legislation, such as the Misuse of Communications Act, and we have already seen successful prosecutions in this area. Where the abuse is racist, we can bring that to the attention of the court as an aggravating feature.

This is an area where I would suggest education, both of what not to do and of how easy it is to detect and prosecute these offences, might prevent the criminalisation of otherwise decent people, but I should stress I would never condone the misuse of social media to commit what would be a hate crime if said face to face.

He goes on to say that such matters might be better dealt with by the “sports authorities”, though here he is referring more to racist chanting at game, for example.  Even so, the general tenor of the press release suggests that the CPS is open to hate speech, whether in person or through social media, being tackled by civil society rather than through the courts.

This appears to be a step in the right direction, and it fits neatly with one of the “factors tending against prosecution” set out in the CPS’s Public Interest Test Code, in cases where:

The seriousness and the consequences of the offending can be appropriately dealt with by an out-of-court disposal which the suspect accepts and with which he or she complies.

More importantly, it fits with the overriding principle, set out by the Attorney General in 1951 and highlighted in the Code , that:

 It has never been the rule in this country – I hope it never will be – that suspected criminal offences must automatically be the subject of prosecution.

The left, and Labour in particular, should show some maturity by welcoming this intervention from the CPS, rather than simply indulging in Cohen-style “The law is an ass” rants.  That won’t get us very far, whereas actually taking time to understand the legal process, the best point to apply pressure to it, might.

Labour has a poor track record and reputation on civil liberties and free speech, precisely because it failed during its last term of office to look at what the consequences of its legislation might be for the legal process as a whole.  This is one way to display a new maturity when it comes to law and order.

Francis Maude is being pilloried for a) not knowing the law about fuel at home; b) kicking off the panic-buying (with Cameron then joining in).  Fair enough.  He is a bit of a knob.

But it seems to me that the left is missing a trick here. 

The primary cause of the panic-buying is not Maude’s stupidity, but the draconian anti-union legislation introduced the last time the Tories were in power.

The Trade Union and Labour Relations (Consolidation) Act 1992 (and the consequent BIS Code of Practice) requires that:

If the union decides to authorise or endorse industrial action following a ballot, it must take such steps as are reasonably necessary to ensure that any employer who it is reasonable for the union to believe employs workers who will be, or have been, called upon to take part in the action receives no less than seven days before the day specified in the notice as the date on which workers are intended to begin to take part……and so (para 50)

It is this enforced delay which means that the government has been able to get itself into such a tizzie, not least because it knows the current legislation backs the union into a corner: strike soon or lose the right to do so.

Pre-legislation, UNITE and management would have battered it out to the end, possibly via ACAS.  Had a strike then have been in the offing, the union would have had the flexibility to go back to members and postpone the action at the last minute/shortly after it started, pending further negotations.

Now, if they UNITE does this, they’ll have to go through the whole costly balloting process again, in the knowledge that use of the courts to stop action on the grounds of procedural technicalities is positively encouraged by the government.

Back in November, Francis Maude himself recognised this, though his response is – bizarrely – to reduce union flexibility even further:

At present, once a union has voted to strike, a walkout must be held within 28 days or a new ballot must be held. But if a strike is held, the union then has a legal “mandate” for more strikes or other action until the dispute ends.

Mr Maude says the rule gives unions a “perverse incentive” to strike and should be changed.

The Coalition will consider a new legal time limit on the mandate that a union has for industrial action after a vote. The limit could be as low as three months.

The government, it seems, is being hoist by its own anti-union petard. Now, tactically, it will be hoping that the strike does go ahead, and may well be privately urging employers not to negotiate, because that is the only way it can now justify its actions this week. 

Effectively, the government has to hope for the worst, because that’s its best way out of this mess.

Liam Stacey from Swansea is beginning a 56 day jail term for tweeting foul-mouthed, abusive expletives about Fabrice Muamba.  He was charged (I assume from press reports about a “racially-aggravated public orderoffence”) under the  Public Order Act 1986 (c.64, paras. 18-19):

A person who uses threatening, abusive or insulting words or behaviour, or displays any written material which is threatening, abusive or insulting, is guilty of an offence if:

(a) he intends thereby to stir up racial hatred, or

(b) having regard to all the circumstances racial hatred is likely to be stirred up thereby.

Stacey entered a guilty plea.  The judge passing sentence indicated that the term reflected the “public abhorrence” felt at Stacey’s tweets.  I am not immediately clear how this sentencing rationale fits with the charge brought against him.

Meanwhile in Dewsbury, Azhar Ahmed faces trial for his Facebook rant about six soldiers, five from Yorkshire and some very local to him, killed in Afghanistan.  The Public Order 1986 charge against him has been dropped – presumably as there was no explicitly racial element in what he wrote – and he has instead been charged under Sec 127 (1) of the Communications Act 2003:

A person is guilty of an offence if he— .
(a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or (b) causes any such message or matter to be so sent.

There is concern amongst those who are worried about the loss of civil liberties that these charges represent a threat to freedom of expression.  In particular it has been noted that cyberspace is crammed full of very similar obnoxious and offensive material, and that these charges are either grossly unfair because they single out people who just happen to have been obnoxious and offensive about matters currently high up the media agenda, or set a dangerous precedent for a wider clampdown on the freedom to be a rude as you want in the sanctity of your own internet terminal.

I share these concerns.  What to do about it, however, is a different matter.  After all, the law is the law, and the police have a duty to investigate potential law-breaking when it is drawn to their attention by the public.  The fact that no-one had ever heard of Facebook and Twitter when these laws were committed to the Statute Book is irrelevant as long as the laws stand.

Perhaps, though, we’re looking in the wrong place.  Instead of a long and possible futile campaign to change the law, the place to start is with the Crown Prosecution Services’ guide to prosecutors on The Full Code Test.  This guides prosecutors on whether they should bring charges, both in terms of the evidence needed and – importantly for our purposes – in terms of whether prosecution is in the public interest. 

This  section starts with a restatement of the public interest principle

In 1951, Sir Hartley Shawcross, who was then Attorney General, made the classic statement on public interest: “[i]t has never been the rule in this country – I hope it never will be – that suspected criminal offences must automatically be the subject of prosecution”. He added that there should be a prosecution: “wherever it appears that the offence or the circumstances of its commission is or are of such a character that a prosecution in respect thereof is required in the public interest” (House of Commons Debates, Volume 483, 29 January 1951). This approach has been endorsed by Attorneys General ever since.

The guide  then continues to set out (non-exhaustive) factors by which prosecutors then judge whether bringing a charge is or isn’t in the public interest.  These factors are too long to set out herein full, but ones that really jump off the page as ”tending against prosecution” include:

the seriousness and the consequences of the offending can be appropriately dealt with by an out-of-court disposal which the suspect accepts and with which he or she complies; and

the loss or harm can be described as minor and was the result of a single incident, particularly if it was caused by a misjudgement.

Against this, the factors “tending in favour of prosecution” which may be most relevant to the two case in question include:

the offence was committed against a person serving the public; and

the offence was motivated by any form of discrimination against the victim’s ethnic or national origin, gender, disability, age, religion or belief, political views, sexual orientation or gender identity; or the suspect demonstrated hostility towards the victim based on any of those characteristics.

In the end, whether or not to prosecute will remain a matter of judgment, but those campaigning for freedom of (internet) expression may do well to focus media attention on the well-established convention that not every potentially illegal act should be prosecuted, and that prosecutors need to assess the logic of prosecution in terms of the overall public interest, rather than the immediacy of public outcry.

Lastly, perhaps the Labour party has a role to play in this.  Labour lost a significant number of votes in 2010 because it was branded – with some justification - as the party against civil liberties.  The Communications Act 2003 is a case in point.  A post-New Labour Labour would do well to move beyond this by initiating a new, mature, internet-age discussion about hate speech, prosecution and the public interest, in a way which doesn’t require a changed to legislation, but may be all the more effective for that.

The Irish government has consulted with its lawyers, and decided that it must hold a referendum on whether to ratify the EU fiscal treaty.  This is the treaty under which, as Owen noted when it was first announced by Merkozy in December, Keynesianism will become illegal.

Given the Irish public’s experience of enforced austerity, a bote in favour of ratifying the treaty must be unlikely, and the commentators are hard at work now trying to work out what the consequences will be, both for Ireland and the EU as a whole.  Michael Burke is optimistic:

If Irish voters do reject the treaty, they will be performing a great service to the population of Europe. It could mark a turning point in the EU and beyond, pulling the brake on the austerity express before it hits the buffers.

I wish I could share with Michael’s enthusiasm, and hope that leftwing governments, led by an incoming socialist government in France, and backed by Ireland and others, could get on with offering a new vision for Europe based on sustainable growth; that is, after all, what I was advocating not long ago.

That, however, was before I had read up properly on the six EU regulations (the so-called ‘six pack’) that came into force on 16th November 2011, three weeks before the Merkozy plan was made public. 

These six regulations (if you’re short of time, 2011/1176 and 2011/1174 are the crucial ones) mean that the treaty is little more than the political icing on the cake.  The regulations passed in November, with no oversight from national parliaments and no news coverage to speak of,  already enshrine in law the way in which governments must run their economies, the measures by which they will be judged and (in the Eurozone) how and to what level fines will be levied on countries with “macroeconomic imbalances”. 

These fines will run at 0.1% of a country’s GDP.  Spain, with a GDP of roughly £1 trillion, would therefore stand to be fined £1 billion in each year of non-compliance.

But this is only the start of the madness.  To get a real feel for how crazily counter-productive the new arrangements  are – they’re already in force, remember – you have to look at the detail of the “scorecard” by which country compliance will be measured.  This is a good summary.

The “scorecard” has two areas: a) External imbalances and competitiveness; b) Internal imbalances

The external imbalance part calls foul when a country has a “3 year average of the current account balance as a percentage of GDP, with a threshold of +6% and – 4% of GDP”.    This is drawn from the original Growth and Stability Pact, and has been the focus of comment to date, as it is also the lynchpin of the proposed treaty.

Even so there are measures which cause greater concern, including the requirement that export market shares must not dip by more than 6%, and – most worryingly – that “the nominal unit labour cost” must not exceed +9% in euro countries and +12% in non-euro countries.  These two measures are, to any sane person (let alone a sane socialist) are extraordinary, in that they a) punish governments for economic activity over which they have relatively little control; b) effectively outlaw workers gaining better terms and conditions for the same labour, over and above a certain point (this would mean that a government could not raise its national minimum wage as a pro-active policy measure, by say 25%, for fear of being called out for “macroeconomic imbalance”.

But we’re not done yet. The regulation scorecard moves from external to internal imbalances.  Here, alongside the requirement to hold down private sector debt to less than 160% of GDP (again, largely beyond a government’s control in a market economy), there is the baffling idea that a country is unsustainably imbalanced if house prices deflate by more than 6% year-on-year.  Woe betide any country which decides that it might be not such a bad idea to let house prices decline so that people  – in areas where there is little rentable accommodation – can actually afford to live in a house.

And to top it all, countries stand to be fined if they let unemployment exceed 10% on a three-year average.  This little pearl comes at the end of a set of criteria which directly militate against lowering unemployment.

So while I’d like to share enthusiasm about the potential for seeing off the austerity treaty – and I wish the Irish public all the best in their efforts – I can’t help feeling that deep in the bowels of the EC/EU, those who wield the power by regulation will not be too concerned.  They’ve already imposed the treaty – they just didn’t bother to tell us.

Remember the date – 16th November 2011: the day Europe finally lost its marbles.