Archive for the ‘Law’ Category

Why the throat?

June 20, 2014 1 comment

I try not to join in twitterstorms, but the one about Michael Fabricant MP’s threat to punch a woman in the throat does bring with it an interesting question.

Why the throat?  Why not the more common concept of a punch to the face or the nose?

Domestic violence-focused literature more than hints at a possible reason: this study finds that 68% in the  ( fairly small) sample of women who suffered domestic violence have suffered from strangulation, and here’s one showing that violent death by strangulation is 6 times more likely for women than men.

The Fabricant tweet may reflect less sudden rage, and more a desire to subjugate, control and make defenceless, and be specific to women.  That’s what makes the tweet more disturbing.

Now, I’m not suggesting that Fabricant is someone prone to violence against women, and of course punching is not strangling..   But I am suggesting that, as part of his making amends as best as he can, he might want to explore why he wanted to go for the throat, and make that exploration public.  That might be a useful service.




Categories: Gender Politics, Law

The EU-USA free trade agreement leak and the threat to the NHS

The leak from the #ttip EU-USA Free Trade Agreement Talks is interesting, as far as the destruction of the NHS is concerned.

This (at p.23 of the pdf file) is the end of May position of the EU negotiation team:

The EU reserves the right to maintain any measure with regard to the provision of all health services which receive public funding or state support  in any form, and are therefore not considered to be privately funded (CPC 931, except for CPC 9312 Medical and Dental Services and part of 93191 relating to Midwifery Services and Services provided by Nurses, Psychotherapeutic and Para-medical services).

The numbering is that of the UN statistical division, and CPC931 is the overall Human Health Services classification, within which medical & dental and midwifery, nursing & the other services fit.

So it looks like that the current EU negotiation position is, by NOT “reserving the right” over these services, to open them to competitive tendering in a way which far outstrips the current Health and Social Care Act 2012 “any qualified provider” provisions.

It looks like the fears may be well-placed.







Categories: Law

Law breaking for legitimacy: the thin end of the euro-wedge

It’s beginning to look like Jean-Claude Juncker will not become President of the European Commission after all.  Paul Mason from the left seems pleased, and Ambrose Evans-Pritchard from the sane wing of conservatism will not, I think, be shedding any tears.

But Jurgen Habermas has a different view, worth listening to.  He thinks that leaders of member states coming together to block Juncker’s election as Commission President by the European Parliament is very bad news indeed.

On the whole, I agree.

This is not because I think Juncker will be a good President – on this I agree with Mason and Evans-Pritchard that he is a  member of a self-serving elite devoted to a massively counterproductive continuation of austerity.

It’s because I don’t like the idea of state leaders thinking they can ignore the rule of law as a means of bolstering their political fortunes.

Let’s be clear what’s going on here.

If a Juncker Presidency is not recommended to the European Parliament by the heads of state at the forthcoming European Council, then these heads of state will have deliberately and knowingly breached article 17 (7) of the Treaty of European Union [1], which requires that the European Council takes into account the results of the European elections.  They may be able to talk their way round it if Junker decides, as seems likely, to withdraw his candidature before the European Council as a way to save face, but this will only be a technicality.

The Spitzenkandidat process – whereby the main European parliamentary grouping have selected their preferred candidates (Juncker for the EPP, Schulz for the SPD) as their part of the implementation of the treay – has been very clear for many months now, and it is only at this very late stage that national governments have started to suggest that “taking account” of the election results, in which the EPP gained the upper hand, might involve simply discounting them in favour of ‘candidates’ who have been nowhere near the process to date.

Moreover, there is a legal mechanism within the Treaty of the Functioning of the EU (article 234) for the European Parliament to make the President and his Commission resign should they lose the confidence of the Parliament,  meaning that national governments could work with others in their political groupings to put an end to a Juncker presidency if he turned out to be the disaster they’ve suddenly worked out he might be.  Indeed, They could even persuade enough MEPs to vote against Juncker after the European Council itself has proposed him – a bit odd-looking, but perfectly legal.

But that route has been ignored in favour of a bigger states vs. European Parliament powerplay, which prefers simply to ignore the rule of law in this case. (In Cameron’s detail-lite case, he possibly simply doesn’t know, just as he probably didn’t know that by taking the Tories out of the EPP, he removed himself from any influence on which Spitzenkandidat the EPP went for at its Dublin meeting in March).

What this likely breach of law is really all about is the panic of members states at the rise of the populist anti-EU right in the recent EU parliamentary elections.   Cameron, and now it seems Merkel (I reserve judgment on Renzi) are desperate to show that they are on the side of ‘their’ peoples, and thereby bolster their own legitimacy as democratic representatives.  But breaking the law is not a good way to do that.

Of course law shouldn’t be set in stone, and Habermas is very clear [3] that there needs to be a healthy tension between legality and legitimacy, with a space for forms of civil disobedience in cases where the law loses legitimacy, in a way which creates a process for the renewal and relegitimation of law . But this is the preserve of civil society, not the existing elite.  If demonstrations erupt against a Juncker presidency, linked to a wider movement against austerity, then the European Council might have a legitimate part to play in meeting the expressed will of the people, and reforming the treaties as appropriate (though as  noted, the scope for the Council to dismiss the Commission creates a legal route to meet that will anyway).*   For national elites to seek their own legitimacy in the eyes of their people by ignoring international law  is the thin end of a very big wedge.

If the anti-Juncker plan is carried through by Merkel, Cameron and others, I do hope the European Parliament will stand its ground and vote against their recommendation for President, wohever that may be, as an act of principle.  Sadly, I can’t see it happening.

Shame the Labour party stopped me being an MEP.  I’d have stood with Jurgen for a socialist AND democratic Europe.


[1] Article 17 (7) of the Treaty of European Union reads:

Taking into account the elections to the European Parliament and after having held the appropriate consultations, the European Council, acting by a qualified majority, shall propose to the European Parliament a candidate for President of the Commission. This candidate shall be elected by the European Parliament by a majority of its component members. If he does not obtain the required majority, the European Council, acting by a qualified majority, shall within one month propose a new candidate who shall be elected by the European Parliament following the same procedure.

[2] Article 234 of the Treaty on the Functioning of the European Union reads:

If a motion of censure on the activities of the Commission is tabled before it, the European Parliament shall not vote thereon until at least three days after the motion has been tabled and only by open vote.

If the motion of censure is carried by a two-thirds majority of the votes cast, representing a majority of the component Members of the European Parliament, the members of the Commission shall resign as a body and the High Representative of the Union for Foreign Affairs and Security Policy shall resign from duties that he or she carries out in the Commission. They shall remain in office and continue to deal with current business until they are replaced in accordance with Article 17 of the Treaty on European Union. In this case, the term of office of the members of the Commission appointed to replace them shall expire on the date on which the term of office of the members of the Commission obliged to resign as a body would have expired.


[3] Its interesting to see Habermas, in his interview with the Allgemeine Zeitung, positively welcome the rise of the populist vote in the European elections as a shock to the governing elite:

Der Rechtspopulismus erzwingt die Umstellung vom bisherigen Elitemodus auf die Beteiligung der Bürger.  Das kann dem europäischen Parlament und seinem Einfluss auf die europäische Gesetzgebung nur guttun

[Rightwing populism requires the adjustment of hitherto elite modes of governance toward citizen participation.  That can only be a good thing for rhe Europen Parliament and its influence on European lawmaking]


For further reading, see Bruce Miller’s useful post, including some useful translation of Habermas and others, and more generally Matthew G Specter’s Habermas: An intellectual biography, kindly sent my way by Chris Brooke.


Why is the left not outraged at plans to send nurses to prison?

November 17, 2013 3 comments

You might think the government’s plans for new legislation, allowing workers to be sent to prison as a cover for the failures of management, would bring some kind of outraged reaction from the left.  Yet two days on from the gleeful announcement that doctors and nurses may end up in Wormwood Scrubs, there’s been no such reaction.

Why’s that, then?

As Chris at Stumbling and Mumbling has repeatedly set out over the years, one of the enduring myths of modern capitalism is the efficacy of managerialism.   Here, that myth is taken one stage further.  Instead of an acknowledgment that the rise in very poor care in the NHS correlates closely to the rise of managerialism in the last 30 years* (and the corresponding decline in standards once maintained by professional ethic), we get a scapegoating of the workforce: the message that, because even strict quality managerial targets have not always been met, then management has no option but to go one step further, and invoke the law.

The alternative – admitting that doctors and nurses might be better than manager at maintaining standards if given the scope to do so** – is no longer even mentioned, not even by the professional bodies and unions themselves.

The efficacy of management was no. 1 on Chris’s recent  ‘top 10 lazy assumptions’ list.  No 2 was, with just cause, the “denigration of professional standards and ethics”.  Quite right.  My only quibble is that they, apparently, no longer need denigrating – even those who hold them dear no longer seem to thing they’re relevant to the debate.

Now that’s ideology.


* None of this should be taken as a way of excusing staff from personal responsibility for crime, I hasten to add.    Portaying explanation and exploration as excuse-making is a favourite hobby of the rightwing press, but as I set out here it’s perfectly possible to excplore what’s gone wrong in the system without offering excuses for those who’ve used the inadequacies of that system to sate their lust for power and abuse.

** Or more properly, if it takes the scope for itself.  The potential for that is something I’m exploring locally through my elected governorship of an NHS Foundation Trust, on which more soon.

Categories: General Politics, Law

Letter to Merseyside Police about Knowsley Housing Trust

November 9, 2013 1 comment

Today’s I’ve written, on the basis that someone had to do so, to the Chief Constable Merseyside Police (hyperlinks added for info), about Knowsley Housing Trust’s letter to tenants threatened with eviction and now, arguably, with the removal of their children.  I understand that this is not the only letter of its type going out from housing bodies.

Dear Chief Constable

Letter by Knowsley Housing Trust: Administration of Justice Act 1970

I enclose for your review and possible investigation a copy of a standard letter from the Income Manager  at Knowsley Housing Trust, which I understand to have been sent recently to several of the Trust’s tenants.

I seek your review because I believe the sending of the letter may have constituted an offence under the Administration of Justice Act 1970 Section 40, para (1) & (1) (a), which states that:

A person commits an offence if, with the object of coercing another person to pay money claimed from the other as a debt due under a contract, he…..harasses the other with demands for payment which, in respect of their frequency or the manner or occasion of making any such demand, or of any threat or publicity by which any demand is accompanied, are calculated to subject him or members of his family or household to alarm, distress or humiliation.

In addition, paragraph 2 of Section 40 states that:

A person may be guilty of an offence by virtue of subsection (1)(a) above if he concerts with others in the taking of such action as is described in that paragraph, notwithstanding that his own course of conduct does not by itself amount to harassment.

It is my lay view that the contents of the final paragraph of the letter may have been “calculated” to cause just such alarm or distress, in order to exact payment of rent arrears. People receiving the standard letter may, from the wording, have been extremely concerned, to the point of alarm or distress, that their children might be removed from them if they become homeless.  This impression would be inextricably linked to non-payment of arrears, and may therefore be construed as a demand for payment accompanied by action calculated by the author of the letter (or others requiring that such a letter be sent) to cause such alarm or distress.

This is not to suggest that Knowsley Housing Trust do not have a duty of referral when a family is at risk of homelessness.  However, the letter makes no reference to the justification for that referral, namely that it is a step taken to ensure that children and families receive the most appropriate support from the local authority during  a difficult family time.  I believe it is a reasonable to expect a professional body to have given consideration to this.

Of course, I understand that it would be a matter for the court to decide the extent to which the letter is “calculated” to cause alarm or distress, but at this stage I would contend that a) there is sufficient evidence to suggest to the Crown Prosecution Service that a prosecution under the Administration of Justice Act 1970 might successfully be brought b) that it is in the public interest to consider prosecution, given the fact that the letter comes from a professional body of whom the public might reasonably expect high standards of conduct

Yours sincerely

Paul Cotterill

Categories: Law

So UNITE and I appear agree on zero hour contracts: which is nice

September 8, 2013 1 comment

A couple of days go I suggested that rather than clamour for legislation to ban zero hour contracts, which I suggested might have unintended negative consequences, the left might better come to the aid of exploited workers by organising:

In the end, Labour might be better off doing the hard yards on the re-unionisation of the labour force – something I’ve argued may be a positive outcome from Miliband’s recent forays, whether or not it’s intended – rather than the easy but narrow legislative victories still redolent of New Labour’s approach to state management**.

Because I brought to bear my own experience as a zero hour contract employer*, I received the fully anticipated colourful abuse, principally from people who had only read as far as Tom Watson’s kind retweet.

So it’s with a certain degree of satisfaction that I see UNITE apparently in full agreement with my position.   In the press release accompanying research conducted on their behalf into the rise in zero hour contracts, UNITE make no call for legislation to outlaw zero hour contracts.  Instead, they call for a sensible package of measures.  Of these, the most important of these (since many of the other protections would follow fro m it is:

A restoration of sector level collective bargaining to stop the ‘race to the bottom’ in ‘vulnerable’ sectors including social care, hospitality, retail, food and logistics.

This is precisely what the unions, and Labour, should be campaigning for/putting in the manifesto.   From effective collective bargaining** follows the potential (though according to Chris only the potential) for wage-led growth as well as direct job security.  And of course wage growth creates its own job security over time, irrespective on contractual niceties.

None of this, I repeat for the hard of thinking, is to defend the abuse of zero hour contracts.  It is simply to suggest that the UNITE leadership has its collective head screwed on, and that the actually understand something about employment.  It’s a shame some in the party are currently keen to suggest otherwise.

* Social enterprise, I’m totally unpaid, sick and holiday pay in contracts, blah blah, I point out for those doubting my ethics/parentage, though that really wasn’t the point of the initial post.

**In the public sector, or private-contracted-by-public sector, this often works best by a two stage process of union to employer pressure, then employers pressuring the government for more resources.   I was involved n the detail as a union steward in the 1980s.

Categories: Labour Party News, Law

On being a zero hours employer

September 6, 2013 4 comments

I employ 8 people on zero hours contracts, and I’m reasonably proud of that fact. Thus, when well-intentioned, influential leftie types like Tom Watson start the rallying call for the total outlawing of what I’ve been doing for about 8 years now, effectively branding my an exploitative bastard, I feel compelled to speak out in my defence.

A little background: I run***, with two fellow Directors though I make a lot of the running, a small social enterprise in the childcare and parenting support field – that is, to the outside it looks like a bog-standard but small nursery/after school club, but what happens in it is more than that because we have a social enterprise mission blah blah.

A few years ago, when I did employee contracts, like most small employers I didn’t reinvent the wheel, but used a template provided by the Pre-School Learning Alliance, effectively our trade body. This was a zero hours template.

And those contracts have worked just fine ever since. As a social enterprise taking on the challenge of addressing “market failure” i.e. providing services at much lower economies of scale than the commercial ‘big boys’ would even consider, we’ve had to shift work patterns over time as demand for our services has changed – to do otherwise would have made us financially unviable. Doing this with zero hour contract has meant that we’ve not needed to engage in formal consultation processes. But it’s also meant that our staff have been able to change their hours to suit their own life and work duties easily and flexibly. It doesn’t always happen entirely smoothly, but there’s goodwill on both sides, and it’s happened in a way which has cut down significantly on cumbersome management processes which actually get in the way of iterations and knock-ons (to other people’s hours) needed to find answers.

My point, though, is wider than one of self-justification for a contract-style now officially reviled by the left. Indeed, in order to avoid any future suspicions about our motives, I’m looking at updating contracts to the “permanent-variable” kind, but this won’t have any effect on the way we actually run things. The wider point is about tools in the right and wrong hands, and the tendency to focus on the tools, not the hands wielding them, in a way which does a disservice in the long run to those the left is supposed to be serving. It’s also, ultimately, about the ineffectiveness of state power when it comes to tackling capital-labour relations.

Take the exploitative bastards down at Sports Direct or McDonalds, for example. Introduce a zero hour contract ban, and before that ban is even through, their human resource people will have found a way round it. This might be the introduction of the one hour contract, alongside an enhanced mechanism for weeding out the ones who won’t comply. It might be something else more creative. But I’m afraid it’s fanciful to think that legislation of the type envisaged will lead to an overall increase in wage packets, even though the use of the zero hour contract has been a handy way to decrease them). But at the same time such legislation would potentially harm a non-profit business like mine, or put paid to some ‘sweat equity’ style businesses in which people without the wherewithal to take actual equity in a small panel beating start-up, for example, are happy to work for their mate Dave on the basis of a zero hours contract alongside some other work, in a way where both parties gain in what is, in human but not contractual terms, a joint enterprise. (Of course this can go wrong – read Roddy Doyle on burger vans for that – but that’s another matter.)

More fundamentally, this focus by the left on its use of legislation, when it happens to be in power, to bring about good things for the workers, can be an active though unconscious hindrance to the “real” job on the left of combatting the power of capital through the more effective tool at our disposal – solidarity (whether that’s in the form of latent/actual labour withdrawal or via co-ops/social enterprise). While it’s an unpopular idea, I still think* it’s reasonable to see the 1998 National Minimum Wage (NMW) as having been detrimental to workers in the long run, though its short term benefits were clear; witness the way in which the NMW has become the standard, not the minimum, in much low paid work.

In the end, Labour might be better off doing the hard yards on the re-unionisation of the labour force – something I’ve argued may be a positive outcome from Miliband’s recent forays, whether or not it’s intended – rather than the easy but narrow legislative victories still redolent of New Labour’s approach to state management**.

* I accept that I’ve never got round to researching the empirical evidence for the counter-factual assertions I made about this in my (correctly contested) 2009 post.

** See also, if you can be arsed, this post of mine at Labourlist on Labour’s currently theory-only aspiration to facilitate “a relational state”, also drawing on my micro-experience.

*** [update note] As I’m receiving a fair bit of personal abuse on twitter for this post, I’ll add that I and the other two directors are entirely unpaid, s set in out in our company constitution as Co Ltd by Guarantee without Shares. I didn’t put it in before as it’s not relevant to issue at hand.

The early institution building of a new NHS

March 25, 2013 2 comments

The NHS is dying, pretty well exactly as I said it would  some two years ago now:

Some scandals may emerge in time over ‘backhanders’ paid by the private hospitals to the private commissioners, and in some circumstances it will turn out that the people doing the commissioning are simply commissioning themselves in another name – the whole inefficiency of which the provider-purchaser split was supposed to stop – but it will all be a bit esoteric and complicated for people to understand, and there won’t be much of a fuss.

In fairly short order, we may get these new commissioners creating two tiers of provision from within GP surgeries, with one level of care for those not paying, and those who just happen to have signed the relevant insurance policy forms, which just happen to be in the GP surgery.

Insurance-based healthcare, and the exclusions that this brings, will come not through a government announcement,  but by the surgery backdoor……

The consortia [now called CCGs] will end up being led by two or three ‘movers and shakers’ in each area, whose job will be simply to negotiate a decent deal for their colleagues and let the private commissioners get on with the rest.   There will be no revolt in primary care, and in secondary care no-one will actually notice till it’s too late.

Two years on, it’s being more widely recognised that, as of 1st April, the NHS privatisation will being quietly but in earnest, as the section 75 regulations kick into gear, Clinical Commissioning Groups with often overwhelming direct financial interests in private providers put services out to the market, public provision withers on the vine or simply goes bust, and private insurance arrangements start to become the norm, initially for (the more profitable) elective healthcare, and then for the rest.   As Lucy Reynolds from the London School for Hygiene & Tropical Medicine rightly notes, what comes next in this wildly ‘imperfect’ market is market abuse and health cost inflation.  This inflation around the ‘cherry-picked’ services, Lucy might also have noted, will lead to the stripping of resources from the less profitable services – no health budget ring-fencing will protect that.

So what is to be done?  By 2015, if and when Labour regains power, the promise of a repeal of the Health & Social Care Act (and the accompanying Section 75 regulations) may be a welcome statement of principle, but it will not significantly change the way in which services have already been privatised, seemingly irrevocably.  In many cases, there simply won’t be the public services to transfer them back to, and the incoming government is likely to consider the full-scale implementation of NHS II a little too much of a fiscal challenge, even if the recreation of the cumbersome institutions of 1948 were desirable.*

What Labour can do, though  – and needs to start thinking through now – is to tackle the local institutional architecture, in a way which creates the platform both for the establishment of local democratic control of both the type and quality of provision.  If it gets this right, this might actually lead, in the medium term, to a better health service than we currently enjoy – as I’ve noted before, it does not become Labour to gloss over the very clear health and social care failings caused by the managerialist ideology that has held sway for the last thirty years.

More specifically in terms of local institutions, the Labour government-in-waiting should first consider retaining the Clinical Commissioning Groups. but diluting the power of GP practices within them by making theirs a minority voting position, through the introduction of members of Foundation Trust governing councils (increasingly focused on quality standards if the Francis Inquiry recommendations are carried through) along with elected councillor representation in keeping with Councils’ new public health function.  The immediate impact of this is likely to be presumption against private sector provision where other options still exist (they won’t in many places).

Second, the Labour government in waiting should commit to ensuring that these new-style CCGs adhere both to the letter and spirit of the Public Service (Social Value) Act 2012 under which all CCGs (and the NHS Commissioning Board), have a duty to consider:

(a) how what is proposed to be procured might improve the economic, social and environmental well-being of the relevant area, and

(b) how, in conducting the process of procurement, it might act with a view to securing that improvement.

(Oddly, this is Tory legislation, aimed primarily at breaking the perceived monopoly power of local authorities, but can be used to the same effect against private sector dominance in healthcare provision.  That will really piss off the Tories….)

These two relatively simply steps will set the direction of travel back against wholesale privatisation, although of course attempts to terminate contracts are likely to result in lengthy and quite likely unsuccessful legal battles, so early progress is likely to be quite slow.

Nevertheless, institutional change at local level by government, especially if accompanied by moves within the Labour party and the broader movement to re-energise Trade Councils, in a move away from the vapid Tory ‘consumer localism’ and towards a quality-oriented ‘worker localism’**, could provide early impetus for the creation of a properly socialist health and social care system – a system fit for the 21st century (whether or not this is tax-based or progressive social insurance based doesn’t really matter as long as it provides for equitable provision) , with private operators increasingly steadily cleared out in favour not just of direct NHS Trust delivery, but also a new surge of worker co-operatives (although charities and social enterprises may also play a valid part).

* It is always worth remembering, in the context of the fetishisation of the 1948-style NHS, that until very late in the day a radically different – and I would argue preferable – NHS structure was being argued for. This was a much more decentralised and locally accountable system, rather than the monolith we grew to love despite it tendencies to managerialism (and I would argue that this is why service standards have declined in the NHS faster than in local authorities, say).  See Rudolf Klein’s seminal The Politics of the NHS for more (the later edition is called The New Politics of the NHS but the early chapters are the same).

** This is not to argue for the introduction/retention of localised terms and conditions.  Trade unions should of course be encouraged to negotiate at national level, and a properly brave/strategic Labour government would use the need to ‘renationalise’ the NHS, and to invest quality in the hands of its staff (as opposed to its bosses) as a rationale for the relatively painless (in terms of reactionary public opinion) repeal of restrictive trade union legislation.  Frankly, I’m not holding my breath on this one.

On Habermas, Islamism and the great Left divide (part 1 of 2)

March 4, 2013 14 comments

The Secular Respectable Left

‘Why on earth do some left-wingers side with Islamists, when Islamists are so evil?’ is an on-going question-cum-accusation, levelled at people like Nick Cohen at people like…….well, people like me.

Thus Nick Cohen in the Spectator, suggests the way the ‘classic’ British left side with the Islamist establishment means they are simply racists:

Other speakers [at the launch of the Centre for Secular Space] were from Southall Black Sisters, Bengali secular campaigns against Tower Hamlets’ Islamist establishment and Iranian resistance groups – classic left wing figures, in other words. Yet they are ignored or in the case of Sahgal fired for speaking out.

All emphasized how many in the British state and British left were racists hiding behind liberal masks. On the left, the racism came in the constant postponement of campaigns to improve women’s lives whether they are immigrants or in the poor world. Their suffering must always be subordinated to the struggle against ‘American imperialism’. This would be bad enough if we did not see from the far Left way into the liberal mainstream supposed progressives allying with clerical reactionaries and clerical fascists. They ignore the victims of theocracy and accept their oppression.

Similarly, Carl Packman at Left Foot Forward, blames the far-left for mix of political immaturity and ‘paternalism':

And here is where the far-left and the British and American establishment can find harmony. While the latter needs the Muslim far-right in Saudi Arabia for cash, they keep quiet about human rights abuses. For the far-left the comradeship is just as dubious, if not slightly more immature.

Recently I was at the launch of a new book by Trotskyist writer and blogger Richard Seymour, who told a packed audience in Kings Cross that the Stop the War Coalition did not wish to pursue sectarianism, deciding who should and should not be marching against the war, but in any case those religious right-wingers might have had their minds changed through a union with the left……..

If this isn’t paternalist (Muslim beliefs, whatever they are, are only temporary, easily overturned), I don’t know what is.

In the end, goes the core argument of the Cohen/Packman/Harry’s Place nexus, the far left/lefties/liberals [1] are the real right-wingers here, and they either need to change their ways or shut up, while the Secular Responsible Left (my coinage, get used to it) get on with the real job in hand of promoting human rights.

For myself, I think this analysis is at least as ‘immature’ as the politics it professes to critique. The suggestion that someone like Richard Seymour (he being a useful cipher for the broad doctrine of the leftist groupings around the SWP/Stop the War), is some kind of closet racist/paternalist, and that he’s “in harmony” with the British and American establishment, is frankly just silly [2]. Such an analysis fundamentally confuses agency with structure, and in the absence of any coherent analysis of why some on the far left/liberal left do seem to get aligned with reactionary Islam, the Secular Responsible Left falls back on the idea that, ultimately, they’re all just bad, wrong people.

In this two part article, I argue that such an approach is not simply politically immature in terms of its failure to distinguish structure from agency. I argue that is also deeply unhelpful as a political strategy for anyone really, really interested in a progressive socialism inclusive of human rights guarantees and the emancipation of the oppressed (and there can be no progressive socialism without that). In the end, accusations levelled at Seymour by Packman look and feel like sectarian squabbling getting in the away of constructive organisation, largely because that is what they are: ‘my integrity is bigger than yours’ political willy-waving fests may fill small halls of the like-minded, but they are not going to change the lives of marginalised women anytime soon.

Indeed the Secular Respectable Left is, I will argue (following John Gray p.125-6), more reactionary, more unhelpful to the cause of emancipation that they profess to espouse than are the far/liberal/mainstream left at whom they throw this same accusation.

Habermas and value pluralism

So what is a more ‘mature’ analysis of how some on the Left come, apparently, to side with the anti-human rights baddies against the goodies?

A good place to start is with the work Jurgen Habermas, who has devoted a large part of his career, from the early 1990s onwards, to resolving the tension that lies at the heart of the current debate: how do modern constitutional democracies best promote respect both for individual human rights and for the rights of groups of people to live by different cultural values (what has been termed the “struggle for recognition“), when such cultural values sometimes are so opposed to a liberal conception of human rights (and vice versa)? It is a resolution to this dilemma – itself a result of the multi-ethnic world that has developed through the 20th century – which forms Habermas’ whole ‘constitutional patriotism’ project, seeking to replace the comfortable majoritarian certainties of ethno-nationalist value consensus (comfortable for those who are included) with a newer commitment to a political culture which accommodates (and in time are, through discourse, adaptable to) different cultures and their value sets [3].

In Remarks on Legitimation through Human Rights (ch, 5 in Postnational Constellations: Political Essays) Habermas gets to the core:

The human rights discourse that has been argued on normative terms is plagued by the fundamental doubt about whether the form of legitimation that has arisen in the West can also hold up as plausible within the framework of other cultures. The most radical critics are Western intellectuals themselves. They maintain that the universal validity claimed for human rights merely hides a perfidious claim to power on the part of the West.

This is no accident. To gain some distance from one’s traditions and limited perspectives in one of the advantages of occidental rationalism. The European history of the interpretation of human rights is the history of such a decentring of out way of viewing things. So-called equal rights may have only been gradually extended to oppressed, marginalized, and excluded groups. Only after tough political struggles have workers, women, Jews, Romanies, gays and political refugees been recognized as “human beings” with a claim to fully equal treatment. The important thing now is that the individual advances in emancipation reveal in hindsight the ideological function that human rights had also fulfilled up to that time. That is, the egalitarian claim to universal validity and inclusion had also served to mask the de facto unequal treatment of those who were silently excluded. This observation has aroused the suspicion that human rights might be reducible to this ideological unction. Have they not always served to shield a false universality – an imaginary humanity, behind which an imperialist West could conceal its own way and interests (p.119-120).

It is this disjuncture between the rhetoric of universality and the practice of exclusion as the key means to establish and expand empire which is so meticulously detailed in Domenico Losurdo’s recent Liberalism: A Counter-History. And it is Habermas’ understanding of this ‘dialectic between subjugation and emancipation’ which provides for his key insight; this is to pick out both the negative and positive features of “occidental rationalism”: a tendency to ascribe any form of enduring inequality and exploitation to imperialism, which can hinder empirical analysis, balanced by a genuine openness other value sets.

The less respectable Left’s (Althusserian) engagement with value pluralism

This is precisely the situation in which some on the British left do now find themselves.

On the one hand, because the left positions itself primarily in opposition to the logic of imperialism (rooted, as Losurdo has set out so clearly, in the exclusionary tendencies of liberalism), it tends to see all events through this lens. Thus, as I set out in my recent anti-war left essay, the empirical evidence that some Western military intervention is not in fact motivated by a rapacious need for natural resources is discounted in favour of a narrative of post-colonial imperialism. In this narrative, the maxim that ‘my enemy’s enemy is my friend’ takes strong hold, and the tendency is simply to take the side of any group which also sets itself in opposition to the forces of Western imperialism [4]

On the other hand, there is the ‘positive’ dynamic, reflecting the other side of the coin of Habermas’ insight. This is that left-wing intellectuals of the Richard Seymour type appear to be genuinely motivated by their (Marxist) occidental rationalism to recognise that there are other ways of looking at rights than through the prism of liberalism.

In this reading, what the Secular Respectable Left see as a betrayal of liberal values and human rights can be seen simply as an acknowledgment by some on the left that there are other worldviews, which do not depend on the primacy of the individual, which are potentially as valid.

Take, for example two interpretations of this Harry’s Place article. ‘Lucy Lips’ attacks those she descibes the far left “anti-racists” (her inverted commas) for working with the East London Mosque, who in turn have hosted “Islamist preacher” Khaild Al-Fikri. As evidence, of the far left’s wrongness in its engagement, she quotes Al-Fikri from a previous conference:

Don’t be misleaded [sic] and misguided with those kaffir people who says it is freedom and you are a free man. They are kuffar. And when they say, and poison your mind with the word freedom, they mean there is no God. “Do whatever you want.” Because they are kuffar. … You need to protect your deen [religion] and iman [faith] because there are many things which will affect you, will come against you. Somebody will say to you “democracy, socialism, freedom”………And again for my sisters. Don’t be misguided. Don’t be misleaded [sic] by the kaffir theories and attitudes. You are very free when you are home with your husband and your kids. … Don’t say “I am a free woman, I want to run house, I want to work, I want to get money”. No! This is the duty of your husband.

Now, to my eyes, and to the eyes of most people reading this piece, this is pretty unpleasant reactionary stuff, at least at first reading. But stand back for a minute, strip away the insulting ‘kuffar’ term, and what you’re left with is little more than an expression of what Habermas has suggested: that the concept of ‘freedom’ is some kind of trap; that it is a Western invention aimed at diverting people from the true path of the divine; that Muslims should retain their own core ethical standards, even if they have to defend them against corrupt Western ones. Certainly, it’s arguable that the guidance on the role of women expressed here is, as Saeeda Shah has noted, an expression, of Islamic philosophy “misappropriated by those who have traditionally occupied the spaces of religious interpretation” (p.245), but notwithstanding the question of who, within a community, gets to establish community’s values and notms (and this is something I come back to in part 2), it still possible to recognise it as a valid expression of a particular ethical standpoint. And this, remember, is from someone widely considered so “extremist” that even to meet with a group which has previously invited him to speak under their roof is an indication of betrayal of all decency.

By way of comparison, here’s self-confessed American liberal Jonathan Haidt, talking about the period spent in Orissa (albeit a period I suspect is conveniently reconstructed for his arguments) during which he realised that the concept of freedom and rights might not have singular validity:

I had read about Shewder’s ethic of community and had understood it intellectually. But now, for the first time in my life, I began to feel it. I could feel beauty in a moral code that emphasizes beauty, respect for one’s elders, service to the group, and negation of the self’s desires. I could still see its ugly side: I could see that power sometimes leads to pomposity and abuse. And I could see that subordinates – particularly women – were often blocked from doing what they wanted to do by the whims of their elders (male and female). but for the first time in my life, i was able to step outside my home morality, the ethic of autonomy. I had a place to stand, and from the vantages point of the ethic of community, the ethic of autonomy now seemed overly individualistic and self-focused (p.102).

Haidt’s recognition that different societies might have equally valid moral bases for the way in which their members lives their lives (whilst also recognising that who holds power is a key determinant) is not new. Indeed, Haidt quotes anthropologist Clifford Geertz approvingly:

The Western conception of the person as a bounded, unique, more or less integrated motivational and cognitive universe, a dynamic center of awareness, emotion, judgment and action organized into a distinctive whole and set contrastively against other such wholes and against is social and natural background, is, however incorrigible it may seem to us. a rather peculiar idea within the contexts of the world’s cultures (p.126, quoted at p.14 in Haidt)

The challenge that Haidt and Geertz set themselves [5], as academics raised within the Western liberal tradition, is to put aside their preconception about what is morally correct, and embrace ‘value pluralism’. And this, it seems to me, is what those on the Left now prepared to engage with radical Islam are also trying to do. True, they don’t articulate it very well, preferring to explain any such engagement as anti-imperialist agitation rather than as a recognition that different worldviews, however alien to our own, have a validity for the simple reason that people have them [6]. Perhaps I even overestimate here the intelligence of some on the far left, though perhaps such a reliance on ‘tried and tested’ anti-imperialism narrative is understandable in the context of a media (including Harry’s Place) keen to misrepresent a call for the understanding of Islamic values as direct support for extremism.

Whatever the motivations, articulated or otherwise, of those on the Left prepared to deal with value pluralism, the important point is that only those on the (far) Left are prepared to engage with probably the most serious question of our times. That question is:

How, in a world in which capitalism has become the almost universal economic modus vivendi, and liberal values have underpinned the rise of capitalism, do we now best deal with the ‘struggle for recognition’ of a very different value set, in a way which both respects value pluralism but also pay proper heed to the emancipatory ideal that lies at the heart of what it is to be left-wing (whether this be Marxist or rooted in earlier Enlightenment thinking)?

Answering that question, again with reference to Habermas, is the task of part 2 of this article (coming soon). In the meantime, it’s worth noting (h/t @sunny_hundal) that attempts to reach out across the value-divide towards some form of long-term political/constiutional settlement, are not necessarily taking place in one direction only. No doubt the Islamic Society of Denmark are getting their version of Harry’s Place-style accusations of treachery from the Unsecular Respectable Islamists, but I applaud them as I applaud the efforts of those on the Left who are seeking some way forward, even while hampered by their Althusserian (see [4]) anti-imperialist ritual.


[1] Cohen in particular seems to use these terms interchangeably.

[2] In the accusation that the far/liberal left are operating in ‘harmony’ with the Western establishment, Packman finds himself in interesting company. Here’s revolutionary Marxist Samir Amin, the consternation of Alex Callinicos of the SWP, coming out in support of French intervetion in Mali, on the basis of an interesting argument that “reactionary political Islam” is in reality a support, rather than a threat, to Western imperialism, because its presence allows the imperialist powers to maintain their control over the people of the ‘triad’ (the US, Europe and Japan) in the name of a ‘war of the civilisations’.

Telle est la raison fondamentale pour laquelle les puissances de la triade – telles qu’elles sont et demeurent – y voient un allié stratégique. Le soutien systématique apporté par ces puissances à l’Islam politique réactionnaire a été et demeure l’une des raisons majeures des « succès » qu’il a enregistrés : les Talibans d’Afghanistan, le FIS en Algérie, les « Islamistes » en Somalie et au Soudan, ceux de Turquie, d’Egypte, de Tunisie et d’ailleurs ont tous bénéficié de ce soutien à un moment décisif pour leur saisie du pouvoir local. Aucune des composantes dites modérés de l’Islam politique ne s’est jamais dissociée véritablement des auteurs d’actes terroristes de leurs composantes dites « salafistes ». Ils ont tous bénéficié et continuent à bénéficier de « l’exil » dans les pays du Golfe, lorsque nécessaire. En Libye hier, en Syrie encore aujourd’hui ils continuent à être soutenus par ces mêmes puissances de la triade. En même temps les exactions et les crimes qu’ils commettent sont parfaitement intégrés dans le discours d’accompagnement de la stratégie fondée sur leur soutien : ils permettent de donner de la crédibilité à la thèse d’une « guerre des civilisations » qui facilite le ralliement « consensuel » des peuples de la triade au projet global du capital des monopoles. Les deux discours – la démocratie et la guerre au terrorisme – se complètent mutuellement dans cette stratégie.

For myself, I don’t buy the argument that, just because one political or ideological grouping does or says something than can be argued to be favourable to the interests of another grouping, that both these groupings must therefore have a common purpose.

[3] Casting Habermas’ sophisticated argument as simply as possible, constitutional patriotism acknowledges that in modern culturally plural societies the ethno-nationalism that used to bind people to a shared identity and thereby create the conditions for the legitimacy of the democratic state. That is, the two key underpinnings of the modern state form as developed in the 18th century – a national identity allied with a republican ideal of individual citizen operating in voluntary contract with each other to abide by the laws of the state – have become less firmly connected. Habermas’ believes that the 21st century state must find a new “functional equivalent for the fusion of the nation of citizens with the ethnic nation”, and that to do this we need to create a patriotic commitment to a legal and political constitution, however abstract, while allowing diverse cultures to flourish in their own terms. I’ll come back to this in part 2. For more, see Andrea Baumeister’s essay Diversity and Unity: The Problem with ‘Constitutional Patriotism’ for an intelligent critique.

[4] It strikes me that this tendency on the part of the Left to push aside any evidence that does not fit with the narrative of resource-hungry imperialism is, ironically, a good example of Althusserian interpellation. As Althusser says:

The individual in question behaves in such and such a way, adopts such and such a practical attitude, and, what is more, participates in certain regular practices which are those of the ideological apparatus on which ‘depend’ the ideas which he has in all consciousness freely chosen as a subject. If he believes in God, he goes to Church to attend Mass, kneels, prays, confesses, does penance (once it was material in the ordinary sense of the term) and naturally repents and so on. If he believes in Duty, he will have the corresponding attitudes, inscribed in ritual practices ‘according to the correct principles’. If he believes in Justice, he will submit unconditionally to the rules of the Law, and may even protest when they are violated, sign petitions, take part in a demonstration, etc.

To this set of beliefs, we might perhaps add ‘Marxism’, in which name a large number of ritual practices have also been established. I would argue that, for many Marxists, who enter into that doctrine of their own free will, the act of interpellation is a strong one, with Marx(ism) maintaining all the key features of the (capital S) Subject. I wonder, indeed, whether it is this process of interpellation, and the commitment to ritual, which lies at the heart of the troubles both the SWP and the Catholic Church now face:

Were not men made in the image of God? As all theological reflection proves, whereas He ‘could’ perfectly well have done without men, God needs them, the Subject needs the subjects, just as men need God, the subjects need the Subject. Better: God needs men, the great Subject needs subjects, even in the terrible inversion of his image in them (when the subjects wallow in debauchery, i.e. sin).

[5] It’s worth noting here that openness to value pluralism is not a particular new concept at all. An awareness of the tension between universality and pluralism can be traced back at least as far as Adam Smith’s Theory of Moral Sentiments. Smith, as an early liberal not caught up by the imperative felt by later liberals like JS Mill to justify imperialist expansion (on which see Jennifer Pitts), was not able to resolve these tensions, but the very fact that he – two centuries before Habermas was aware of them suggests that it continues to be an area still worthy of consideration. As Samuel Fleischacker has noted, in an interesting essay which argues that modern political philosophy might benefit from Smith’s implicitly anthropological approach:

Smith is unlikely to offer us any straightforward meta-ethical reconciliation between relativism and absolutism, and his promising hints about how, in ethics proper, to bring together pluralism and universalism, are undermined, to some degree, by his meta-ethical dilemma. But the problems he faces in these regards are our problems too, and thinking with Smith may help nudge us toward a solution to them, even if that solution is not explicitly to be found in Smith’s own work.

[6] Again, this is an ‘anthropological’ formulation, of the type which informs Adam Smith’s work

Sentencing women

February 1, 2013 3 comments

The detective who sought to make money from selling information to the News of the World has been sentenced to 15 months in prison.  This is less time in prison than the conviction would normally have carried:

[T]he judge said had that not been the case she would have been sentenced to three years.  The judge said he was particularly concerned about the child, and admitted that her absence while she is in prison could be damaging.  However, he said that, had she not been arrested, the detective would have returned to work by now, and therefore the child would be cared for by others anyway.

I am pleased that she will spend less time in prison than she might, and that assuming good behaviour she will be reunited with her child in a few months.   But what strikes me is that the matter of adoption, as opposed to simply having a child, seems to have been given greater weight than it does in most other sentencing of women, in less high profile cases.

The Corston Coalition points out that:

Imprisonment also has a serious impact on women’s children: ninety-five per cent of the children of women offenders have to leave their home on the conviction of their mother.

But, as the Coalition then points out:

The number of women sentenced to custody has increased by more than half between 1998 and 2008.  In 2008, 8,862 women, not including those on remand, were sentenced to custody. In the last decade, the women’s prison population has risen by 44 per cent; in comparison, the male prison population has risen by 26 per cent.

Clearly the judge in this case felt the crime was of such gravity that the need for a prison sentence outweighed the needs of the child.   I can (nearly) understand that, given the principle of vengeance written into our criminal justice system.

Yet for the vast majority of women sent to prison, there are clear, viable and effective non-prison options, and they still get sent down.

Let us hope, at least, that the judge’s sentence mitigation in this case will create some form of precedent in less high-profile cases.

Categories: Law

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