There’s something deeply disturbing about section 1 of the new Education & Adoption Bill, according to which the Secretary of State will get to turn a maintained school into an academy if she considers it to be “coasting”.
What’s disturbing is not that this is really just a quick way to turn schools into academies, even though there’s no evidence that this is a good way to improve schools. That just evidence-free policy of the type we’ve come to expect.
It’s not that there is no inkling as to what “coasting” might actually mean and how it might be measured. That’s now just standard centralisation and of decision-making as developed under Gove (though with the twist that it will be the new Regional Schools Commissioner expected to do the centre’s dirty work).
It’s not even that there is really just no evidence that piling more and more inspectorial pressure on school can squeeze out anything further in the way of improvement.
What’s really disturbing is the subtle shift, from a focus not doing well enough to a focus on schools not giving a sufficient external display of effort.
This, it seems to me, may reflect a move beyond the managerialism of New Labour and its continuation into early New Conservatism, in which outcomes mattered and how you achieved them didn’t, towards a more authoritarian style, in which outcomes matter less than the level of grovelling to those higher up the food chain.
With Ofsted – in the vanguard of this new authoritarianism within education – it’s been there for a while; I remember, the last time I was subjected to Ofsted, being asked to provide an example of where governors had overturned an executive decision, as though a display of hierarchical power was a good thing in itself, and conversely governance by consensus and dialogue must be weak in some way.
Now that display of compliance is being written into law, though, perhaps we should really start to worry about the state of our democracy.
With Labour a) likely to be in a better position than the Tories to form a government after May 7th; and b) ruling out any kind of binding deal with the SNP or the Libdems, and insteaf looking to govern on an informal supply & confidence basis, the very real prospect of extreme constitutional silliness hoves into view.
This is nothing to do with who gets first dibs on trying to form a government, on which we can be pretty clear, or on Scottish Independence. It is to do with the unintended consequences of the hurriedly pass Fixed Term Parliaments Act 2011, and specifically Section 2 of the Act, which covers the two ways early elections can come about.
The first way is simple enough. A two thirds majority votes for an early election, and it happens.
The second way is this (simplifying the order of the paras. slightly for ease of reading):
An early parliamentary general election is also to take place if—
(a) the House of Commons passes a motion in the form: “That this House has no confidence in Her Majesty’s Government.”
(b) the period of 14 days after the day on which that motion is passed ends without the House passing a motion in the form: “That this House has confidence in Her Majesty’s Government.
It doesn’t take a parliamentary rocket scientist to foresee what will happen. The SNP, under pressure to get deals done and be shown to be delivering for Scotland, can hold Labour’s feet in the fire by agreeing with the Tories that the motion at a) should be proposed to the House, and then watching the 14 days tick away. We move quickly into a world of brinkmanship, with Labour and the SNP (or alternatively the LibDems) trying not to be the one to blink first.
Is past-midnight poker the best model for government? I suspect not. As and when this starts to happen, remember who brought us the Fixed Term Parliament Act in the first place.
Luftur Rahman is now, in law, the ex-Mayor of Tower Hamlets, the Electoral Commission (sitting as judge) having found him guilty of electoral fraud.
The detail of the verdict need not concern us here. Nor, indeed. need the ethnicity of the ex-Mayor or his allegiances. A focus on such matters tends to obscure the more fundamental issue: that investing executive power in a single person, whilst not ensuring robust systems of scrutiny and, where need be, recall, is to expose democracy to the risk of corruption .
While Boris Johnson, for example, may not be criminally guilty, it is reasonable to point out that his 7 years in power have not been without a whiff about “semi corruption” and contempt for (toothless) scrutiny and patronage.
The obvious solution to Tower Hamlets’ democratic legitimacy woes, and those of other areas where mayorality hasn’t turned out so well, is to take it all as an interesting but failed experiment, and return promptly to the form of local government which has, by and large, served us pretty well for a century or so.
Unfortunately, this isn’t very easy, at least at at first sight. Under the Coalition’s 2011 Localism Act, a referendum to reverse the decision of a referendum on governance arrangements can only take place 10 years after the original referendum . In the case of Tower Hamlets, the referendum which brought mayoral politics to the borough only took place in October 2010, further to a petition organised (manipulated?) by Respect and the Islamic Forum for Europe (this under the provisions of the Local Government Act 2000). By this route, the borough could only return to sensible local government in 2020.
Fortunately, yet another piece of legislation – this time Labour’s  Sustainable Community Act (2007), which allows councils to see devolution of central government powers to local government where such powers “assist councils in promoting the sustainability of local communities” . In my view, a proposal from current councillors, in advance of a new mayoral election, for the devolution of power to allow the council simply to return to the leader-cabinet model, with its now normal scrutiny functionsn – or even to return to the older committee system (as has happened in Fylde) – could be justified on the basis of community sustainability, given the division and hatred brought about through the mayoral model. Conversely, it might be argued that a further mayoral election (or continuation of that system) is a recipe for further division and animosity, whoever wins, given the accusations likely to keep on flying.
If I were a Labour councillor in Tower Hamlets, that’s what I’d be investigating right now, not least because this route to a settling down period might even find favour with non-Labour councillors. I can also envisage a new DCLG Secretary of State welcoming such a proposal, on the basis that it swiftly undoes the harm brought by the divisive Respect/IFE cabal, as well as smacking of strong and decisive government.
 There is not time for a full exploration of the link between concentrated executive power and corruption here, but it’s worth noting how initial, valid concerns about such corruption were set to one side by New Labour as they grabbed hold of the idea of importing the mayoral system from the US, as part of their evidence-free faith in managerialism.
Indicative of this, one of New Labour’s earlier intellectual supporters, Gerry Stoker, acknowledged in a 1992 paper “The fact that an elected executive mayor implies a great concentration of power in a single individual rather than dispersal among many, raises the potential for perhaps more serious instances of corruption.” By the time of his 2004 book Transforming Local Governance, however, he was persuaded enough of the merits of the mayoral system to set such concerns to one side, even while acknowledging that ” an effective mix of checks and balances is a considerable institutional design challenge”, and that it is “not clear that the regulations that followed the Local Government Act 2000 met that challenge” (p.140). In other words, managerialism had won the intellectual day.
 A useful 2014 Parliamentary Briefing (pdf) explains the changes (p.5):
The Localism Act 2011 permitted a referendum to be held on abolishing an elected mayor, subject to time limits; and for a referendum to be held on establishing a leader and cabinet, or on using the committee system. Four authorities have held referendums on whether to retain their mayoral system. Electors in Doncaster (3 May 2012) and Middlesbrough (26 September 2013) voted to retain their elected mayor, whilst those in Hartlepool (15 Nov 2012) voted to replace it with the committee system, and those in Stoke-on-Trent (23 Oct 2008) voted to replace it with a leader and cabinet system.
Authorities which have changed their governance arrangements as a result of a referendum can only make a further change following a further referendum. Where a local authority has held a referendum on its governance arrangements, a further referendum may not be held for ten years (five years in Wales).
 To the Coalition’s credit, their amendments to the Act took the legislation from one which was based on application rounds to one which allows local authorities (and since 2013 Parish & Town Councils) to submit proposals to DCLG at any time.
 The link here is to guidance on the Act and its amendments, because the level of amendment means it is misleading to link to the original act and confusing to link simply to amending legislation.
Today Ed Miliband has made a key promise:
We have to end the epidemic of zero hours contracts.
So today I can announce that in our first year of government after the election, Labour will pass a law that says:
If you are working regular hours, you will get a regular contract.
A legal right that will apply to all workers after 12 weeks.
This sounds great, except that it does very little to end the exploitation of people on zero hour contracts.
You see, the people most exploited by zero hour contracting are not those on regular hours, but those on irregular hours.
Ensuring that people already working regular hours get a contract that reflects that fact may be nice enough, and clarity on contractual terms is welcome (though it may come at the cost of inflexibility which is bad for employees too). ACAS, for example, finds that most of its helpline calls related to zero hour contracting are about lack of clarity/understanding, and that many problems e.g. around holiday pay calculations are less to do with overt exploitation than poor communication.
But those most exploited under zero hour contracting are those who are called into work at short notice and must be ready to go into work, meaning that they can’t work elsewhere, and must have care arrangements in place. As it stands – and of course we haven’t seen any legislation wording – the number of people on irregular hours may actually increase, as less scrupulous employers seek loopholes around does and what doesn’t constitute regular hours. Even at best, today’s commitment from Miliband don’t seem to do anything to protect people on irregular hours.
As I’ve said previously, zero hour contracts are not of themselves exploitative, and many employers (including me) have used them for years while retaining perfectly good relations with employees; indeed, at my place I’d say they even enhance relationships, because staff can and do shift their hours by informal ‘just get on with it’ agreement. Rather, it is the way they are used by certain employers that is exploitative, and the best way to tackle that is not by legislation, but by increasing worker bargaining power through unionisation (though tackling the employer incentive to employ people part-time in order to avoid national insurance contributions would also help).
I fear that Labour, by moving down the legislation route in an understandable pre-election bid to look tough on labour market injustice, may not only be creating for a rod for its own back when it comes to implementation. It may also be doing a long-term disservice to low-paid workers by acting as what the Economist has called (in relation to minimum wage legislation) a “proxy union”.
What I mean by this is that, while the introduction of minimum wage a) did not create unemployment (as claimed by the right); b) may have pushed other non-minimum wages up (pdf), it also removed at one fell swoop a key raison d’etre of trade unions, arguably contributing to decline in membership.* In turn, this has arguably fed into less active trade union representation in the workplace, and greater worker vulnerability in the face of those employers who are deliberately exploitative around contractual terms (I’m differentiating here from exploitation as an essential feature of capitalism).
Would Sports Direct have introduced its zero hour contracting in the first place if there had been stronger workplace representation?
As we look forward to another round of legislative protection from a new Labour-led government, we should be careful what we wished for.
* Until 1985, the British trade union movement opposed (pdf, section 2.3) the introduction of a statutory minimum wage. What remains under-researched is whether they were right to do so.
While creating the links for my previous post, I came upon this quite unpleasant post from right-wing blogger Tim Worstall, in which he introduces the concept of “underage totty”.
Underage totty in Worstall’s world is, as far as I can establish, a female who is a child in law and therefore with a right to legal protection from sexual predators, but who by dint of some pro-active display of her sexuality, can be seen not to be in need of that protection. Or something. From what he goes on to say about how 14, 15 and 16 year olds should be treated under law, Worstall seems to be suggesting that a physical capacity to act or appear in a sexual or sexualised manner should be the main indicator of when a young person should be regarded as an adult in law, when it comes to sexual consent.
Now Worstall’s ignorance of or wanton disregard for how wealth, power and gender status* come together to create the concept of “totty” in the first place need not detain us too long – he revels in his non-PC status and a bit of online trolling of a possible victim of serious sexual abuse is presumably all part of the act – but his post does give cause for reflection over what age should be the age to which young people still need protection under the law (we will leave aside here Worstall’s apparent confusion between the age of consent and protection from harm).
In fact, while Worstall seems to suggest that the age of protection should be lowered on the basis that young women can appear physically older, actual research suggests public and legal policy might be better going the other way, and creating protective mechanisms for young people for longer. If we look at brain, as opposed to breast, formation, longitudinal tracking of adolescents and young people’s brains indicates that the parts of the brain associated with judgment, especially in “hot” circumstances, continues well into a young person’s third decade:
Most research to date has captured information in conditions of “cold cognition” (e.g., low arousal, no peers, and hypothetical situations). Like impulse control and sensation seeking, hot and cold cognition are subserved by different neuronal circuits and have different developmental courses . Thus, adolescent maturity of judgment and its putative biological determinants are difficult to disentangle from socioemotional context.
I don’t, of course expect pointing to actual research about how young people develop, and how public policy might need to change in the light of newish data, will do much to change the views of Worstall and the similarly-minded on what’s permissible if you’re a rich, white bloke. But, as someone who remains unapologetically and old-fashionedly PC about the rights of both women and children, I do feel bound to point it out.
Cameron and his team are looking to outflank UKIP by restricting access to National Insurance numbers as a way of capping lower skilled worker entry to the UK labour market. This, as Barroso says, is illegal under EU law, and it just isn’t going to happen, though Cameron will be hoping to keep up the pretence that it might until the other side of the Rochester byelection.
For Labour (and the liberal-left in general), there’s a positive in this. There’s a short window in which it might set out its own more coherent proposals for restricting freedom of movement, and a legal mechanism to do so.
Let’s start with the legal mechanism, which requires an initial bit of myth-busting about what can and can’t be done under EU law.
Just about anyone in the commentariat or UK politics who claims to understand the EU will tell you that freedom of movement is ‘sacrosanct’, and a basic principle of the Single Market. They may also tell you that if a EU state restricts freedom movement for citizens of other EU states, then it’s in breach of the Lisbon Treaty.
This, though, is incorrect.
This is what Article 45 of the Lisbon Treaty actually says (my emphasis)
1. Freedom of movement for workers shall be secured within the Union.
2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.
3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:
(a) to accept offers of employment actually made;
(b) to move freely within the territory of Member States for this purpose;
(c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;
(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in regulations to be drawn up by the Commission.
The limiting clause is there for a reason. It is there because early formulators of the legislation (and the limitations date from Clause 48, para 3 of the 1957 Treaties of Rome) understood that total freedom of movement might be difficult to implement, and that there might be occasions when it is best to take a step back.
Now, it’s not quite as easy to invoke the limiting clause as it might once have been. This is because in 2004, EU Directive 2004/38/EC tightened up the process for curtailing freedom of movement by requiring that any person whose movement is curtailed has to be named, and specific reasons provided for the curtailment. Thus, if freedom of movement were to be restricted on a large scale, including for whole states, that Directive would need to be repealed. But the point is that, with political willing from all states, this repeal could take place through the ordinary legislative procedures of the EU, and would not require treaty change.
There are two questions that arise from this. First, why on earth would Southern and accession states voluntarily accede to the repeal of Directive 2004/38/EC when their citizens stand to lose freedom of movement and therefore earning power? Second, what good would it do Labour to engage in such a process (or set out promises for same in its manifesto.
The answer lies in another section of the Lisbon treaty. Article 30 states that “customs duties on imports and exports and charges having equivalent effect shall be prohibited between Member States. This prohibition shall also apply to customs duties of a fiscal nature.” but article 32 clear the way for exceptions to the rule:
In carrying out the tasks entrusted to it under this Chapter the Commission shall be guided by………the need to avoid serious disturbances in the economies of Member States and to ensure rational development of production and an expansion of consumption within the Union.
Invocation of this aspect of the Lisbon treaty as part of the overall deal between richer and poorer states would create the room for temporary suspension of the single market, and the creation of export subsidy/import substitution mechanisms, such that convergence can occur at a much quicker pace than might otherwise happen. It would effectively, give the newer EU states the space they need to catch up, as long as they agree to their side of the bargain – keeping and feeding their own citizens, especially if it were to go hand in hand with a redistribution of EU structural funds** towards the poorer states:
1. It hoists Farage by his own petard. He has claimed that slower economic growth in Britain is a price worth paying for reduced immigration, and what is proposed here is a route to just that, not just because in the real world immigration into the UK is an economic good, but because UK companies stand to lose business through temporary tariffs. Farage can hardly object to concrete proposals to put into practice what he adovcates.
2. It allows Labour to argue, correctly, that the root cause of EU immigration is the failure of the free market within the EU; economic convergence between rich and poor states has simply not taken place through free trade, and policy intervention by the EU is now needed to help convergence along the way.
3. Labour has no choice. Trying to outdo UKIP or the Tories on toughness is just a non-starter given the very low levels of trust the party suffers on immigration generally, which stem both from a hostile media and from the party’s failure to be clearer about the benefits of EU immigration back in the early 2000s – when it did enjoy considerable trust. Similarly, a late attempt to win over the electorate to the economic benefits of such immigration are doomed to failure, given the evidence that any form of redistributive policy, seen as demanding some form of self-sacrifice, is almost certain to get a hostile reception when political trust is low.
In these circumstances, the only realistic way forward for Labour is to be seen to accede to the expressed demands of much of the British population, and seek to reduce immigration from the EU in the short to medium term, irrespective of the fact that this may actually damage the economy (though in the longer term real economic convergence will benefit all EU states, of course).
*I use the term liberal-left purposely in order to distinguish it from the Marxist left. As a fairly gross generality, the Marxism-inspired left would see what I propose here as an accommodation with nationalism and xenohpobia, that the left’s efforts are better directed at collective action against the real enemy, capitalism, and that the desire of a large part of the population to reduce immigration is one rooted in false consciousness. I have some sympathy with this analysis, however crudely I express it, but I am also a democratic socialist who believes that people do have the right to express preferences, and that telling them their preferences are a product of ignirance is not productive for the most part
**Jacek Rostowski, ex-finance minister for Poland, said recently:
No Polish government could agree to Cameron’s renegotiation proposals except in return for a mountain of gold.
He, of course, recognises that there is a deal to be done. even if Cameron doesn’t.
As for why and how Labour would gain from setting out these proposals, there are three points to make.