John Jackson's blog

I have just returned from a short visit to some of the (increasingly expensive) countries of the European Union. For much of the time I was in the enjoyable company of couples from the U.S. and had ample opportunity to overhear their conversations.

One such conversation between a wife who was a Democrat and her husband who was a Republican was brief and instantly amusing but as I pondered on it I was reminded that we need to be careful in wishing for what we want: we might get it.

The conversation ran thus:-

Wife. ‘The reason I like Obama is that he believes in what he says.'

Husband. ‘That is just what worries me.'

My first reaction was that the husband was simply reflecting a Republican view that Obama was both dangerous and seriously wrong in believing that the U.S. would be a more successful society if it embraced policies which were redistributive of wealth and ‘socialist'. I put ‘socialist' within quotation marks because, as another of my travelling companions explained to me, it is seen by many in the U.S. as a word connoting a political system based on the taking of money from those who work and giving it, in cash or kind  ( e.g. ‘excessive' access to education or health care), to those who don't  - ‘like in the U.K. and France'.

But on reflection I wondered if the husband also meant that, in an inherently selfish world, the interests of the U.S. would be served better by a leader who was more practised in the arts of deception and less inclined to honesty and openness.

The man in the moon observing the current political scene in our country could be forgiven for concluding that our supposed leaders are competing with each other to see which of them can make us the most miserable. Egged on by the media in pre-election mode they are describing our present economic position in exaggerated and horrific terms and delight in telling us how they propose to put the situation right by ‘savage cuts', housewifely prudence and, of course, new and larger taxes.

Before long people, particularly those suffering the real misery of unemployment, whether directly or through members of their families, will notice two things. None of those leaders, including particularly those in official opposition, are anxious to accept that anything they did (or did not do) as cogs in our parliamentary system contributed to our problems. Also that their remedies presume that they should carry on as usual - and they are simply competing over who should ‘take the lead' in doing what they claim needs to be done. And that the question of whether their unchanged system might in any way be part of the problem, or might itself need to be ‘savagely' changed, is not asked. And that therefore all the leaders on offer wish to continue doing things to us - not with us.

When such pennies do drop questions will be asked and asked with increasing vigour. Questions that could include the following: Does our parliamentary system work? Can our members of parliament truly represent us if their future depends in any degree on how their party whips report to party leaders on their commitment to the party cause? Do we get the best ministers if they have to be members of either house? Why can we not have primaries before a general election? Should we have fixed term parliaments? Why not proportional representation? Why not more civic involvement in the lead up to fundamental decisions, culminating in some cases in national referendums?

When I was very young in the early 1930s there was a period of some two years during which my parents could not afford to buy a daily newspaper. Instead my father, who was out of work and on the very small, state provided, dole, would call in to our local public library to read, I think, the Daily Mirror and the Times. Sometimes the library copies were in use - there were many families needing to watch every penny - and he had to wait his turn. Others were waiting their turn too and the library became a local, entirely male, gossip parlour.

My brother and I were ‘little pigs with big ears' and we would eavesdrop as my father, on his return, told my mother what was up nationally and, courtesy of the gossip parlour, locally. So I grew up believing that buying a newspaper was a luxury - something like an orange or a banana - and that access, free, to ‘the news' was one of the civic rights that came with being a member of a benevolent society.

It never occurred to me to wonder what would happen if nobody bought a daily newspaper and everyone's father went to the public library instead. That, in essence, is the situation  which the newspaper proprietors are threatened with: not by the public libraries but by the web.

Rupert Murdoch has now said that he intends to charge web users for access to some (what ‘some' is he has not said) of the contents of his newspapers. He is not the first proprietor to take this line but he has distinguished himself from the others by making his private intentions public as an important news item in their own right. He is taking the web on.

John Jackson joins the discussion of the possible strategies for democratic reform post-expenses launched by Anthony Barnett in his recent post.

Anthony Barnett > Peter Oborne > Melissa Lane > Stuart White > John Jackson

I share Peter Oborne's feeling that ‘we' should focus our reforming energies on one objective only: parliament. But I emphatically do not share what appears to be another of his feelings: that we should do that just by ‘cleaning it (parliament) up and making it more democratic'.

The reason for this difference between us is encapsulated in something else that Peter, correctly, says - ‘There is nothing peripheral about parliament; it has always been at the heart of British freedom, democracy and governance.' But that ‘parliament' has evolved - particularly over the last one hundred years - into something invaded by a malignant cancer which has changed it into something which, on increasingly frequent occasion, endorses, with worrying passivity, limitation of our democratic freedoms and acts of serious misgovernance.

What has gone wrong? Why, to quote another of Peter's comments, is our political system ‘broken'? Arguably it is ‘we', all of us, that are to blame and have allowed that cancer to grow and spread, to produce its deadly ‘secondaries'.

Firstly, we have allowed our system of representative parliamentary democracy (in my view always more an aspiration than a reality) to be kidnapped and made captive by our political parties. We disenfranchise ourselves by voting not for representation but for the political party which will form the next government. We accept as ‘proper' that our members of parliament will engage with us on ‘constituency' matters but disengage from us and take the ‘party line' on ‘national' matters. See what happens if you ask your MP to discuss a government bill being ‘whipped' through parliament!

Whilst I was putting on my socks this morning I listened to an unsuccessful attempt by the Today Programme to engage a government minister in discussion about Trident.

It reminded me of a question I have often wanted to ask but refrained from for fear of appearing stupid or unpatriotic. Why do we have an army, navy and airforce? In particular, why do we have a nuclear deterrent ?

I can understand that we need the means of trying to keep the peace within our own borders – even when those borders are disputed. The recent tragedy in Ireland is compelling evidence of that.

I can understand - and support strongly - an obligation to contribute to a UN controlled peace keeping and intervening force where there is compelling necessity on humanitarian grounds recognised by the international community.

I can imagine, just, a situation in which we need the means to respond (but not by nuclear means) to the threat of an imminent attack which diplomacy or the UN can do nothing about.

But I cannot dispel my suspicion that the main force driving our ‘defence’ expenditure, and the level of it, has little to do with ‘defence’. It smacks of a perceived need to support our foreign policy, a policy which, by implication, assumes the need to maintain the status of a ‘nuclear’ power and a right to interfere, armed but unasked, in other nation’s affairs.

Perhaps there are others who would like an answer to the question I have been afraid to ask. If we are truly moving into a more open and transparent world in which our political masters accept a duty to tell us what is going on and why, an answer would be re-assuring. We might even be allowed to respond to it!

My good friend Laura Sandys – Conservative candidate for Thanet and Chair of openDemocracy ( on whose board I also serve and which owns OurKingdom ) – wrote the equivalent of a party political broadcast yesterday in praise of David Cameron and, by implication, her political party.

Rightly a response should come from another political party activist – which I am not. I neither belong to nor support any political party. I distrust them and those who operate them and, whilst acknowledging that  a modern representative democracy needs them, believe that they, and the desire for unaccountable power which motivates many of those who rise to lead them, lies at the heart of many of our problems.

To my ears,  the words of Cameron fall easily from the mouth of someone who believes that it is those who have invested assiduously time, energy, money and emotion over many years in becoming a significant part of the political establishment who are entitled to tell us what is wrong and what they will do for us to put it right. It all sounds very much like the view of someone who sees their ‘turn’ coming and wants to give little more than words away before they are in a position to enjoy it.

John Jackson (London, Mishcon de Reya): Some days ago I was at a private breakfast party in the City of London. The ‘guest of honour' was a distinguished business man who had had a very successful career as a clearing and investment  banker. I asked him why nobody had asked the ‘what if' questions. Why had nobody asked ‘What happens if the wholesale money market dries up?' or ‘What happens if American borrowers cannot keep up with their mortgage payments?' or ‘What if the banks do not understand what is inside these "securitised" packages they are investing in?' Those questions must have occurred to somebody.

His answer was illuminating. ‘Well, Mervyn (King) said something but the truth is that people tend not to ask such questions in boom times, particularly if politicians or the government of the day are important to them.' What he was describing was an insidious form of self interested self censorship which we are all tempted to engage in at some time or another. We are like ostriches that mix their metaphors as they stick their heads in the sand with their tail-feathered bottoms pointed to the sun and murmur either ‘apres moi le deluge' or ‘I have never had it so good.'.

But now we are not in boom time and people - not the politicians -  may be more inclined to ask ‘what if' questions. There are two which interest me particularly.

John Jackson (London, Mishcon de Reya): It would be niggardly and ungenerous to deny the Ministry of Justice any praise for its long awaited Green Paper, Rights and Responsibilities: developing our constitutional framework. The 64 page document is interesting, well written and reflects many hours of careful work. The discussion of rights is far more compelling than that of responsibilities. That latter could have been summed up in one quotation from Thomas Paine: ‘A declaration of Rights is, by reciprocity, a Declaration of Duties, also. Whatever is my right as a man, is also the right of another; and it becomes my duty to guarantee as well as to possess.' That thinking is reflected in the views of my American friends who regard the upholding of the US Constitution as their highest civic duty. To go beyond that and attempt to erect a ‘system' based on the duties of citizens to their state looks unwise.

In one or two places the Green Paper is also politically courageous. The statement  ‘Today, our constitution is a rich fabric of statute, common law and convention and our fundamental rights and freedoms are embedded throughout it. Inevitably these have been shaped by the beliefs and perspectives of the times in which they were created and new demands continually arise to create new challenges. - - - - The Government believes the time is right to explore the case for drawing together and codifying such rights in a new constitutional instrument.'. is an example. Leaving aside the point that the ‘fabric' is so ‘rich' as to be completely indigestible by the ordinary person, most governments, knowing that within eighteen months they would be facing a critical electorate, would have avoided opening up what their party political advisors will have been telling them could become the proverbial can of worms.

John Jackson (London, Mishcon de Reya): Target setting by departments of government and their functionaries is designed to improve the quality of public services and the efficiency with which they are delivered.

As the shocking case of the Stafford hospital, which seemed to forget that its main purpose was to care for the sick and injured, has shown, this managerial practice can produce strange results. It can be used also for strange purposes.

Yesterday morning a colleague and I had an unpleasant experience. We had tickets (and reserved seats) on the East Midlands train due to leave St Pancras at 9.25 for Leicester. The number of the departure platform was not announced until close to 9.20. As a large number of waiting passengers hurried to the barriers, two burly officials in dark suits appeared, stationed themselves either side of the narrow entry, instructed us brusquely to ‘form two lines with our tickets and passes ready' and sent to the rear of the lines those who said that ‘as usual' they intended to purchase their ticket on the train. This process took time and a considerable number, including some with tickets, missed their train when shortly before 9.25 the barriers were shut against them. We were the last to squeeze through and the train was moving before we found our seats. Bizarrely, within two minutes another inspector appeared and examined our tickets.

John Jackson (London, Mishcon de Reya): Some weeks ago I remarked in a piece posted on OurKingdom that livelihood without liberty is mere servitude. When I wrote that I did not yet know that Molly had died in hospital, in her 93^rd year, in early January.

Molly, born and bred in Scotland, left school when she was 14.  Armed with the sound and extensive teachings that her country, with its poverty, Calvinist traditions and commitment to universal education, then provided to all its children, Molly went straight into ‘service', probably as a kitchen maid, with a wealthy family that owned a local ‘big house'. There she was joined later by a younger sister who, after some years, married the assistant gardener, Dick, employed by the same household.

John Jackson (London, Mishcon de Reya): Spring is here and the frogs in my garden pond are spawning. As I watch the randy little males croaking with excitement and clambering over each other to clasp the strangely passive females and let down their fertilising milt as they, the females,  exude their transparent tapioca-like eggs, I am reminded of government ministers and shadow ministers as election time approaches. They too croak away and clamber onto our backs as they seek to inseminate our voting capacity with support for the views of their political party.

If the sovereignty of ‘we the people' or, indeed, representative democracy are to be more than forlorn hopes we should rebel against being treated in this way, as passive spawners available for clasping by the political elite in their springtime. It is ‘we' who should be setting the agenda and making clear that ‘we' require  those who seek to govern or represent ‘us' to make clear their position on matters that ‘we' regard as fundamental, particularly matters relating to how ‘we' are governed and represented.

 John Jackson (London, Mishcon de Reya): The stink from the Palace of Westminster that I wrote about recently is spreading! Members of both parliamentary chambers who insist on playing the game according to the rules - and to their own personal advantage - should not be surprised if others are keen to follow their example.

The rule based stance of Sir Fred Goodwin reminds me of the pig clubs that flourished in the last World War. With ministerial encouragement, households collaborated together in the ownership and care of a pig. In a club I knew, the pig was always named Fred. Rather like discretionary contributions to a company pension scheme,  waste food donated by each family which owned a share of Fred went to make up the swill that was dumped in his trough. Nobody liked to tell Fred that the deeper he buried his snout the quicker he would be turned into bacon.

The slaughter of Fred by a government approved executioner was quite a ritual. Those that were not squeamish assembled and Fred was formally knighted before, now Sir Fred, his throat was cut and the gore led off to become the foundation of black puddings. I think someone may have told Harriet Harman about this. There is a difference though: the pig club that I knew respected the rule of law with great care and no special rules were made for dealing with the porcine knight.

John Jackson (Mishcon de Reya): Playing the game according to the rules is an ancient activity closely associated with the boundary between the socially acceptable and the unacceptable.

The best villas in Rome and its settlements had under-floor heating, running water and lavatories. And excessive indulgence in food and wine was permitted provided you did not throw up on the way to the conveniently situated vomitarium.

The functionaries in mediaeval palaces advised you on what was permissible if relief was necessary. Quite usually this involved squatting in the corner of the great hall and, having performed your ‘necessities', wiping yourself down with straw. When the smell became completely unbearable, the palace was vacated so that it could be scrubbed out and fresh straw laid. Come to think of it, rather like our general elections when the accumulation of excrement and used straw in the Palace of Westminster becomes too great to bear.

“Parliamentary supremacy is fine. Parliamentary sovereignty sucks.” - Swansea University student, 2008.

When I became a law student, nearly sixty years ago, one of my initial tasks was to learn about the history of the English legal system. After some weeks of indolence I thought it politic to ‘confess’ to my supervisor – who appeared senior and wise to me but was probably all of thirty years of age – that I had failed to find a copy of our constitution. After listening to his explanation of my failure – there was not one to find, I remarked that the situation he described was difficult for the ordinary person to understand.

'I do not think the ordinary person needs to understand it.’

‘But if they do not understand it , how can they change it?’

‘Change it?’ - this rejoinder coming with an emphatic stiffening of posture.

‘Well, yes, our constitution must belong to all of us; we must be able to change it.’

‘Jackson, you should understand that our constitutional arrangements are part of our great historical heritage and are not to be meddled with by those – and this seems likely to include you - who do not have the capacity to understand what they are doing.’

To me, who as a schoolboy had applied to join the Common Wealth party and was well down the road to becoming what, David Marquand would later describe as a democratic republican, that put-down was so absurd that I burst out laughing. It was only when I saw the expression on his face that I realised how deadly serious my teacher was. I apologised for my ill manners and left his rooms with a voice inside me saying ‘There is something wrong with that.’ It was some time before I focussed on ‘what’.

John Jackson (London, Mishcon de Reya): Last week the Appeal Court handed down a very important judgement settling a question about the Hunting Act. The Act provides that no offence is committed if hunting is done in a way which brings it within one of a number of exemptions laid down in the Act. Astonishingly, the  authorities had argued that they had little chance of  bringing successful prosecutions if they were asked to prove that challenged hunting was not within the exemptions. They wanted the court to rule that it was up to the accused to prove that what was done was lawful. To rule, in other words, that the accused would be found guilty unless innocence could be proved. The court rejected the prosecutors' request.

The right to be held innocent unless and until proved to be guilty - the presumption of innocence - is one of our ancient and fundamental freedoms On 28 February in London, and in meetings being organised across the country, the Convention on Modern Liberty will deliberate on the many perceived, and growing,  threats to all the fundamental rights we have fought for and enjoyed as a free people.

John Jackson (London, Mishcon de Reya): A careful comparison between the judgement of the Divisional Court in the Binyam Mohamed case and what David Miliband said in Parliament is revealing.

In Miliband's view, and I quote, ‘The question at issue was whether intelligence provided on a confidential basis by one state to another, in absolute trust that it will be kept secure, may be disclosed to the public by a foreign court- - ‘.

In the court's view the issue was how to balance the public interest in national security and the public interest in open justice, the rule of law and democratic accountability.

It is important to understand that at no point did the court intend to disclose publicly the content of highly sensitive documents given to the court, very properly, by David Miliband's advisers and which, for a time, the US authorities did not want BM's lawyers to see. It only wished to include in its judgement a summary of reports by the US Government to our Security and Secret Intelligence Services on the circumstances of BM's incommunicado and unlawful detention in Pakistan and of the treatment afforded to him by or on behalf of the US Government.

The court wished to do that because the summary, which, it said, could not possibly be described as ‘highly sensitive classified US intelligence', was highly material to BM's allegation that he had been subjected to torture or cruel,inhuman or degrading treatment and to the commission of criminal offences. Under UK law a prosecution can be brought, with the consent of the Attorney General, against a person who aids and abets, or assists in concealing, grave breaches of the Geneva Conventions (such as torture or inhuman treatment) in the UK or, if that person is a UK national or resident, anywhere in the world.

John Jackson (London, Mishcon de Reya): On Thursday I wrote an immediate analysis of the 'The case of Binyam Mohamed'. It raises fundamental issues about how we are ruled and whether, indeed, we enjoy the rule of law. 

An examination of extensive exchanges in Parliament last Thursday reported in Hansard makes it clear that David Miliband now claims the US authorities did not make threats in relation to the sharing of intelligence information and that he had not raised this aspect of the BM case with colleagues in the US since the inauguration of President Obama. This is so astonishing as to defy belief when placed next to what the Divisional Court said in its last judgement published last Wednesday. I quote:

John Jackson (London, Mishcon de Reya): The case of Binyam Mohamed (BM) is the latest in a long line of disputes concerning terrorists, alleged terrorists and their treatment to come before the courts. The judgement published on Wednesday - the last (maybe not) in a series of judgements in this case - is extremely interesting and addresses what the Divisional Court (with two judges sitting) believes to be ‘a novel issue which requires balancing the public interest in national security and the public interest in open justice, the rule of law and democratic accountability.'. Were it not contained in 33 closely argued pages,I would recommend the judgement as ‘required reading' to all participants in the forthcoming Convention on Modern Liberty. It discusses many issues relevant to the Convention and will certainly feature in the session addressing the question ‘Who decides, the politicians or thejudges?'. Lord Bingham, a member of the panel opening that session, is quoted extensively in the BM judgement.

John Jackson (London, Mishcon de Reya): In his post yesterday, Stuart Weir referred to the ruling classes ‘self- defeating insistence on the great merit of a flexible constitution’. That insistence is also self-serving and depends on a strange and disingenuous circular argument.

By definition a flexible constitution contains uncertainties and is not definitively written down. But, say its advocates, we also embrace the rule of law and that does require certainty. And, given that we have a flexible constitution, that certainty can only be provided if somebody has the last word. That is the justification of the concept of parliamentary sovereignty encapsulated in the phrase ‘The Crown in Parliament can do anything it wishes except bind its successors’. Parliament – these days a Parliament which is largely the captive of government – has the last word and can insist on what it wants.

John Jackson (London, Mishcon de Reya): Tony Benn’s piece on liberty is beautifully written by a true libertarian. However it is, in essence, a call for vigilance and little more. That is not enough.

I am writing this in the United States where people are confronting with some discomfort aspects of their country’s recent past. Their new President when announcing the end of waterboarding and the closure of Guantanamo has reminded  them that the US will have and deserve little moral influence if it does not hold to its founding ideals. At the heart of those ideals is ‘liberty’. My friends are asking themselves what ‘liberty’ truly is and who should enjoy it.

What strikes me again and again is that when discussing some of the less fragrant events of the recent past they do not ask ‘Was it legal?’: instead they ask ‘Was it constitutional?’.

Holding to the Constitution is an important part of being American. It is part of the glue which holds American society together.

We have nothing similar in the UK. We are almost discouraged from thinking about our Constitution. We are the poorer for that.