Neither ‘moderates’ nor ‘ modernisers’…

One thing that has become stark in the Labour leadership election has been the division between factions – the trouble is, the descriptions used seem to be determined by those who have a distinct interest in the result. Jeremy Corbyn is of course described as ‘far left’ or ‘hard left’ – and though I disagree with both descriptions that isn’t really the point I want to make here. No, what I don’t agree with is the counter-description of those who seem to be lining up against Corbyn as ‘moderates’ or ‘modernisers’. Neither term is at all appropriate.

Anyone who has watched the increasing desperation by some within the anti-Corbyn campaign should have noticed the lack of moderation. The language used against him and his supporters has been vicious and personal. The tactics used – and even worse the tactics proposed – have been much less democratic than those used by his supporters. There have been stories of coups should he win, and most recently a call by John Mann MP for the whole contest to be called off. None of this is ‘moderate’ in any meaningful way. It’s the opposite: extremist, in a particular ‘centrist’ form. The level of control demanded – and part of John Mann’s call was based around an idea that the leadership election was ‘out of control’ – is the kind associated with the ‘hard left’ or ‘hard right’ than with anyone who pretends to be ‘moderate’. The narrowness of the ‘acceptable’ discussion is also far from moderate – it’s controlled and controlling. Moderates? Far from it.

The idea that the anti-Corbyn campaign is full of ‘modernisers’ is almost as misleading: in practice, many of them want the opposite of modernisation. What they want is a return to something that was modern, but has now become part of an almost mythical past. Labour circa 1997 is seen as the ideal – and this isn’t ‘modern’ any more. It’s harking back to the past, with nostalgia just as unrealistic as UKIP’s nostalgia for a mythical 50s. A true ‘moderniser’ is open to something new, ready to abandon their presumptions and prejudices, not to try to lock into place something that they liked in their youth. I liked Labour 1997 – but in 1997. It’s not 1997 anymore – and a real moderniser wouldn’t want it to be. They would want something really new – and not to go back to their version of the Blair model. That time has passed.

So no, the ‘anti-Corbyn’ campaign isn’t populated by moderates and modernisers so much as with extremists (of the centre) and nostalgia-driven conservatives (with a small ‘C’). A moderate would want debate, and show respect. A moderniser would be open to different options and to having their assumptions (including economic ones) challenged. Right now, those driving the campaign against Corbyn do neither.

The Labour Leadership Saga…

When Labour lost the General Election

They knew they needed new direction

Without a pause for much reflection

“A new leader” they cried!

 

The first to rise was the man called Chuka

His suits so sharp, credentials pukka

But when tabloid lips began to pucker

He ran away to hide.

 

Tristram next began to expound

His vision, with his vowels round

But support for him could not be found:

He fell, and wept inside

 

Just three remained: let battle commence

With Yvette and Andy on the fence

And Liz, who said her views made sense

For the members’ votes they vied

 

‘I’m Northern, me,” Scouse Andy said

Bright Yvette “I’m not quite so red”

Tough Liz cried “They’re both just like Ed”

“Who the voters can’t abide”

 

Said Liz, “I’m really not a Tory”

“Listen, you lot, to my story”

“Don’t vote for me? There’ll be no glory”

“Our future will be fried”

 

But from the left a wailing came

Those three, they cried, are all the same

They treat this thing as just a game

Let’s not give up our pride!

 

So Jez rose out from far left field

To this despair, he could not yield

With sword of red, and trusty shield

The media he defied

 

“I stand for people” Jez cried out

“For the poor and the lost, for those without”

“For socialism, I will shout”

“I’ll swim against the tide”

 

The old-new Labour lot just laughed

The very idea was completely daft

But a cunning plan they thought they’d craft

And let him come inside

 

But to their shock, his old left style

Did not make members run a mile

Instead it made them raise a smile

And fight instead of hide

 

His rivals could not deal with Jez

So went to their friends in the press

And said “it’s really quite a mess”

“Don’t worry,” their friends sighed

 

“It’s Tories playing silly games”

“They only want to fan the flames”

The antis cried, and called Jez names

And rocks at him they shied

 

They said ‘he’s just a dinosaur’

But others said ‘Jez tell us more’

At hustings he just took the floor

The others seemed to hide

 

The more he spoke, the more they shook

He rarely let them off the hook

He read them like an old, old book

No secrets held inside

 

What could the anti-Jez lot do?

The game had turned, that much they knew

They even tried to plan a coup!

The others simply sighed

 

Nothing seemed to work at all

Their ratings seemed to fall and fall

No matter who they tried to call

No answers could they find

 

Could Labour members be so mad?

Surely Jez must be a fad?

Things can’t really be so bad

The odds he has defied

 

The Blairites soon began to panic

Their media-writing was almost manic

But they misunderstood the whole dynamic

They couldn’t turn the tide

 

“He’s old,” they cried, “he’s got a beard”

“He’s damaging”, they sneered and sneered

“He’s just the sort of man we feared”

Was what they felt inside.

 

They called on Blair, their old grandmaster

But this time he was a disaster

They couldn’t have made Jez rise faster

No matter what they tried.

 

What could they do? They cursed and cursed

The Corbyn balloon must be burst

Before things could get any worse

And he got in his stride

 

“The game” they said, “it must be stopped”

“The whole contest it must be dropped”

“A new idea we must adopt”

“New rules must be applied”

 

“This time” they said, “we’ll make quite sure”

“The likes of Jez are shown the door”

“And just the right people take the floor”

“Let that be our guide”

 

Will they win? Just time will tell

The whole thing now begins to smell

A stitch up we might just foretell

But can they stop the tide?

 

…to be continued…

 

 

 

 

A ten point plan for the anti-Corbyn campaign.

  1. Stop calling Corbyn supporters stupid
  2. Send Tony Blair to Kazakhstan and don’t let him leave there until after the election
  3. Stop commissioning or writing editorials about how bad it would be if Corbyn wins the Labour leadership election
  4. Stop calling Corbyn supporters stupid
  5. Remember that the people who will decide the Labour leadership election are the Labour members and supporters, not the ‘general public’. You have to convince Labour members and supporters to choose a different candidate, not your conception of the general public, Daily Mail readers, ‘Middle England’, people who voted Tory or UKIP etc. Convincing them comes later, not in the Labour leadership election.
  6. Have a little think about why people support Corbyn, and if your answer is ‘they must be stupid’ think again.
  7. Stop calling Corbyn supporters stupid
  8. Convince one of the other candidates to have an idea that might be attractive to Corbyn supporters
  9. Try to come up with an idea that wasn’t in the Tory manifesto
  10. Stop calling Corbyn supporters stupid.

Simple, really….

DRIPA overturned…. an explanation and comment

The ruling in the High Court that overturned the Data Retention and Investigatory Powers Act (DRIP) may well turn out to be a significant one. At the time that it was passed, academics and privacy advocates were deeply disturbed not just by the bill but by the way it was passed – I blogged a number of times on the subject, including an Open Letter from myself and other academics, and a comment on the shabby process through which it was passed.

Our concerns appear to have been well founded – hence the overturning of the law – but they are part of a much bigger process through which the whole of our surveillance system is being held up to scrutiny and found wanting. The Anderson Report, the RUSI report, the rulings of the Investigatory Powers Tribunal and now this High Court ruling show a growing feeling that the current situation is unacceptable. It is no longer sufficient for the authorities to say ‘trust us’ with surveillance. Indeed, the more that comes out, the less they appear deserving of that trust. The passing of DRIPA, without proper scrutiny, without proper debate, and ignoring the criticisms of experts, showed contempt for people and for the nation – it is a very good thing that it has now been overturned. What happens next is another matter – but one that we should watch very carefully indeed.

Below is a post from the LSE Media Policy Blog, by Lorna Woods, explaining today’s ruling, reposted with permission.


Explaining the ruling that overturned the UK’s Data Retention & Investigatory Powers Act

The British High Court just invalidated the UK’s bill on retention and investigation of communications data that was enacted in 2014 in the wake of the overturning of the EU Data Retention Directive by the European court. Lorna Woods of the University of Essex explains the ruling and its implications. 

In a very rare outcome, the English High Court has declared that the Data Retention and Investigatory Powers Act (DRIPA) is inconsistent with European Union law and therefore is “disapplied”, although the Court suspended the effect of its order until after 31 March 2016. Liberty to appeal was granted.

DRIPA was rushed through Parliament last summer, much to the consternation of many, as this judicial review action evidences. DRIPA had been enacted in the wake of the Digital Rights Ireland decision of the European Court of Justice invalidating the Data Retention Directive (2002/58/EC), and the recognition that some of the activities of the police and security forces in this country in terms of surveillance and data access in any event had at best very dubious legal authority. DRIPA went through on the basis, that rather than involving new principles, it constituted mere clarification of the law. It was on the basis of EU law following Digital Rights Ireland that this action was brought.

The Judgment

Argument in court concerned what Digital Ireland in fact said, and the impact a ruling on a directive should have on national legislation designed to implement it. The High Court argued that, although Digital Rights Ireland related to the Directive and not national legislation, the ECJ was questioning whether the EU legislature had, by instituting its data retention rules, overstepped the principle of proportionality in balancing the rights to privacy and data protection in the EU’s Charter on Fundamental Rights against law enforcement and national security objectives (see Articles 7, 8  on rights & Article 52(1) on limitations). The Court took the meaning of the case to be that:

‘the ratio of Digital Rights Ireland is that legislation establishing a general retention regime for communications data infringes rights under Articles 7 and 8 of the EU Charter unless it is accompanied by an access regime (laid down at national level) which provides adequate safeguards for those rights’. [para 89]

In terms of the criteria by which any domestic legislation should be judged, the English High Court held that “[w]e do not accept that the [ECJ’s ruling in Digital Rights Ireland] is authority for nothing more than the verdict [ie it only speaks to the validity of the directive], any more than we interpret the judgment as meaning that each criticism or concern which the Court expressed involves a fatal flaw in the legislation”. [para 90]. The English Court then came up with a three-part structure summarising the requirements of any such legislative scheme for it to be acceptable under EU law:

  • Derogation and limitations in relation to the protection of personal data must apply only is as far is strictly necessary, so any legislation must set down clear, precise rules regarding scope of derogation and safeguarding rights against risk of abuse;
  • Legislation establishing a general scheme of retention must expressly restrict the purposes for which the scheme is used to precisely defined serious crimes;
  • Prior review by a court is required [para 91]

The Court decided not to make a reference to the ECJ on the question, although similar questions are pending from a Swedish Court before the ECJon similar domestic legislation. The requirements in derived from Digital Rights Ireland were not satisfied by DRIPA.

Next Steps

Although the Court ordered disapplication, which means the law will not be enforced, it suspended the effect of that order to allow the Government time to re-legislate. It seems that there is a growing consensus that some change to allow proper safeguards is required – as can been seen in the Anderson Report and in the RUSI Report. It is to be hoped that this time, the Government gives adequate notice to allow proper scrutiny of the proposed measures: a lack of scrutiny has been an ongoing concern about the passage of DRIPA and other measures in this area.

This case will no doubt give rise to a number of legal questions – and leave to appeal has been granted – but two immediate questions occur. The first relates to the scope of the disapplication: the Secretary of State for the Home Department who was defending DRIPA in this case raised at the last minute whether national security fell within the scope of EU law. If it does not, the arguments raised here would not apply to it. The Court did not deal with this argument as it was raised at the least minute. Secondly, if the High Court accepts that DRIPA is incompatible with EU law, as it has just argued, then how does it have the power to suspend disapplication until March next year? According to the ECJ, EU law is supreme and needs no intervention from the domestic legal systems to make it so. From that perspective, today’s disapplication could not be delayed. The Government now needs to prioritise re-legislating on the retention and investigation of communications data.

This article gives the views of the author and does not represent the position of the LSE Media Policy Project blog, nor of the London School of Economics and Political Science.


 

Blair, Elvis and the Labour Leadership Contest

When I was on holiday a few weeks ago, the evening’s entertainment at our hotel was an Elvis impersonator. Big, fat, in a spangle-covered white suit with flared trousers and a short cape, hairy chest and paunch, singing old, old songs in a deep voice. The audience, mostly aged in their 60s and more, lapped it up. I listened for a couple of songs, and found myself asking a question: why do Elvis impersonators always seem to do the old, fat, bloated version of Elvis, the one who it’s easy to imagine dying on the toilet, overdosing on Twinkies? Why not the young, sexy, hip-swaying Elvis who shocked people in the 50s with his provocative dancing and (for the time) radical rock and roll?

A look at the audience seemed to suggest why. These weren’t people looking for excitement, for something new and radical. They were looking for nostalgia, for comfort, for safety. In fact, they were precisely the kind of people who would have been scandalised by the young Elvis, and want him banned for his radical ideas.

I get the same sense from the current batch of ‘Blair impersonators’ standing for the Labour leadership. They seem to have chosen to impersonate the late, sell-out, war-mongering, safe version of Tony Blair, the Blair who was best-buddies with George W Bush, who clamped down on civil liberties and preferred to cavort with Murdoch than spend time with more normal people. The Blair who started a hideous war and who should, in the view of many (including me) be investigated for War Crimes. They seem to think that this Blair, the fat-Elvis-Blair, is the only Blair, and the only way to get success.

More importantly, they seem to have forgotten that there was a different kind of Blair at the start. A radical Blair. A Blair who did bring in the people of ‘Middle England’ but who also brought to the table radical ideas. Who brought in the minimum wage (and not as a con-trick like Osborne’s fake ‘living wage’). Who brought in the Human Rights Act and the Freedom of Information Act. Who made devolution a reality. Who made national museums free to enter. These were bold ideas, radical ideas – and socialist ideas.

The current Blair impersonators don’t seem to have grasped that this was the key to Blair’s success, not just the sell-out and the supposedly Tory policies. Blair at the start wasn’t just a Tory-imitator, no matter what it might seem. Kendall, Cooper and Burnham are only looking at the fat, dying Elvis, not the young, sexy, hip-swinging Elvis. If they are to capture the success he had, they need to find more of the latter, and far, far less of the former.

GCHQ, the Investigatory Powers Tribunal and Amnesty – two small points…

The news that the Investigatory Powers Tribunal has sent a letter confirming and apologising for an ‘error’ in its ‘Determination of 22 June 2015′ – a ruling on the case taken by Liberty, Privacy International and others (notably including Amnesty International) has created quite a stir. The IPT has admitted that it mistakenly suggested that the breach they had suggested related to the Egyptian Initiative for Personal Rights had in fact been in relation to Amnesty International.

This will no doubt be analysed at depth – particularly by Amnesty International and others. I have just two points to make at this stage in relation to it.

A ‘technical’ breach

The first concerns the nature of the breach. Effectively, the breach was that data, once gathered, was held for too long – in the words of the determination of 22 June 2015 (paragraph 14):

“…the time limit for retention permitted under the internal policies of GCHQ, the intercepting agency, was overlooked in regard to the product of that interception, such that it was retained for materially longer than permitted under those policies.”

This is regarded as a ‘technical’ breach, as the IPT was satisfied that the data was not accessed after the expiry of the ‘relevant retention time limit’, but is still a breach of Article 8 of the ECHR. That, however, does not really give the whole picture. Data retention periods matter, and in a way that is far more significant than regarding a ‘technical’ breach as insignificant. Where a surveillance approach is based on ‘gather as much as possible, hold for later use’ is concerned, the data retention period is one of the most important dimensions.

Moreover, it should be noted that it is internal policy that determines the retention period here, not anything set down in law or subject to public scrutiny.

A deeply worrying confusion

The second, perhaps even more worrying issue, is the nature of the ‘confusion’ between the two NGOs. Amnesty International are a very different beast than the Egyptian Initiative for Personal Rights. Different in scale, different in nature, different in origin, different in focus. For the IPT to make an error like this is deeply worrying – and casts doubt on a number of aspects of their ability to properly scrutinise the activities of GCHQ. As noted in Paragraph 3 of the Determination of 22 June 2015

“The Tribunal has also found it useful and important to ask itself in the course of its consideration the following questions (derived from an amalgam and adaptation of the submissions of Mr Ryder QC and Mr Tomlinson QC):

(a)  What is the identity and nature of the claimants concerned and the nature of their communications and their activities (including their position as NGOs)?”

How can the IPT have made an appropriate decision based on the ‘identity and nature of the claimants’ – including their position as NGOs – when it was confused between two such radically different (in identity and nature) claimants as Amnesty International and the Egyptian Initiative for Personal Rights?

A question of trust?

David Anderson QC, the Independent Reviewer of Terrorism Legislation, entitled his recent report on surveillance ‘A question of trust’ and did so for a reason. Trust is needed – but it needs to be earned. One possible explanation for the IPT’s error is that they were basing their analysis on too much trust in GCHQ. Indeed, it appears it was GCHQ who alerted the IPT to their error – which in itself raises a lot of interesting points. These points, along with the nature of the error itself, makes it harder to trust the IPT’s ability to oversee the activities of GCHQ.

That matters. David Anderson’s conclusions seem even more significant now – and in particular his recommendation for a ‘new, powerful, visible and accountable intelligence and surveillance auditor and regulator’. The current system – from the rubber-stamping Intelligence and Security Committee to the IPT, does not inspire trust at all.

Mr Gove Lays Down The Law

Mr Gove Lays Down the Law cover

Mr Gove was as surprised as anyone when Mr Cameron won the election.

After all, Mr Gove knew better than anyone how useless Mr Cameron was. Well, Mr Gove knew better than anyone about everything. That was what made Mr Gove what he was.

Still, winning the election made Mr Gove happy, and he was smiling as he went in to see Mr Cameron, looking forward to being given a new job. Mr Gove had not really enjoyed being Chief Whip: it wasn’t nearly as interesting a job as the name suggested. He had particularly disliked being stuck in the toilet when something important happened: it reminded him too much of his school days.

And when Mr Cameron offered him the job of Lord Chancellor, Mr Gove was especially pleased. The robes. The regalia. The history. The law. Magna Carta. Truth. Justice.

It made Mr Gove’s heart sing.

Mr Gove Lays Down the Law close

Not that Mr Gove knew very much about law.

That did not matter, Mr Gove knew that. He had known almost nothing about education, and look at what a success he had made of being Secretary of State for Education. And anyway, no-one knew less about law than Mr Failing Grayling had.

And Mr Gove knew the only thing that mattered: Mr Gove knew what was Right and what was Not Right.

So Mr Gove got to work. He sat before his new, mahogany desk, and looked at the big stack of boxes in front of him. Boxes full of documents of all kinds. And Mr Gove began to read. And he read, and he read, and he read.

Mr Gove Lays Down the Law closer

He read analyses by civil servants of the devastating impact to access to justice of Mr Failing Grayling’s cuts to criminal legal aid.

He read memoranda about the failings of the privatised court interpreter service, and of how trials had broken down as a result of it.

He read a legal analysis of Mr Failing Grayling’s Social Action, Responsibility and Heroism Act, describing how it was one of the most poorly drafted pieces of legislation in living memory and would have no positive effects whatsoever.

He read communications of many kind about Mr Failing Grayling’s ban on books in prisons.

He read about how even Mr Cameron’s brother had convinced a judge that the cuts had meant an important trial could not go ahead.

He read so much that was Not Right. And Mr Gove started to get angry. Very Angry.

Mr Gove Lays Down the Law closest

Mr Gove decided it was time to Lay Down The Law. There was so much that was wrong in the Department of Justice. All that he had read had convinced him of that. So much that was Not Right at all.

And Mr Gove knew exactly what to do. He knew what his priorities were. He knew what the real problems were, and what needed to be dealt with right away, as a matter of urgency. He knew. So he turned to his secretary.

“This is Not Right” Mr Gove shouted. “This is Not Right.”

“This civil servant began a sentence with ‘however’,” he shouted, jabbing his finger at a memo about access to justice. “This one used the passive voice when he could have used the active,” he cried, holding out a letter about the problems with the privatisation of the probation service. “And there are contractions all over this report,” he went on, pointing out the ‘don’ts, doesn’ts, and can’ts in an analysis of the proposed restrictions to judicial review.

“Someone has even used ‘impact’ as a verb here,” he said in that soft, low voice that his secretary knew was the most menacing of all, as he pushed a report of the problems encountered in drawing up the new British Bill of Rights across the table.

And then he smiled, a grim, serious smile. “Come on,” he said. “We have work to do. Take a memo.”

And Mr Gove laid down the law.

Mr Gove Lays Down the Law cover

Words by me, art by @kaiserofcrisps and me.

For the other episodes of Mr Gove and his friends, click here

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