Reforming the House of Lords: Balancing Efficiency and Legitimacy

In a speech delivered at Demos this week, Nick Clegg sought to defend the precepts of the ‘Open Society’.  Aiming to reinvigorate the drive towards greater political pluralism and democratic involvement, while promoting such values as openness and equality that define his political perspective, the deputy prime minister placed reform of the House of Lords back into the spotlight.

Reform of the Second Chamber is undoubtedly a central issue, both within and beyond liberal reformist circles.  However, the matter is dominated by talk of increasing legitimacy, overshadowing the opportunity, if not the responsibility, to enhance the efficiency of the House.  Strengthening the democratic functioning of the Lords requires a broadening of their ability to act rather than solely focussing on the conviction with which they act.

Chief amongst Parliament’s many activities is the passage of effective legislation.  The bi-cameral nature of Parliament provides for an upper House to review proposed legislation, holding the government to account through deliberation and reassessment.  The incorporation of experts is therefore vastly beneficial to the process of scrutiny.  Unfortunately, the price of such expertise is democratic legitimacy, undermining any authority attached to amendments emerging from the Lords.  While the case for electing the Lords, or at least a significant majority, is therefore a strong one, insufficient attention has been paid to considering how functions could be better performed through concurrent structural and procedural reforms.

Currently, the House of Lords is chamber-oriented, relying on individuals who are both unelected and part-time.  Such working practices under-utilise the wealth of experience and knowledge of the Lords; with much time in the House being dedicated to detailed scrutiny of bills at the committee stage of the legislative process, many central issues fail to be debated by Peers.  This shortcoming adds to the case supporting reform of the House of Lords.  However, responses to questions concerning heightening efficiency and legitimacy need not be mutually exclusive.  

A reformed Chamber should complement the work of the Commons, providing an alternative perspective to legislative scrutiny.  An overriding fear of duplicating the work of the Commons has prevented the emergence of a strong committee system within the House of Lords.  Given the nature of the Lords’ remit, such a development path is peculiar; parallel departmental committees would greatly enhance opportunities for effective scrutiny, potentially producing stronger legislation, while allowing committee chairs in both Houses to coordinate workloads and avoid unnecessary duplication.  

A further advantage of allowing for a stronger committee system in the Lords comes in the shape of a solution to the trade-off between democratic legitimacy and expert input.  Rather than being permanently sitting members of the Lords, experts would continue to be integrated into the legislative process as Special Advisers or, alternatively, being called by committees considering specific legislation.  Expertise would thus remain eminent, while experts would not expected to choose between providing legislative advice and an existing career.  Similarly, the quality and relevance of legislative scrutiny would be improved, while democratic legitimacy would be revived by ensuring that the final say falls to elected representatives, suitably informed.

A revised House of Lords would, despite anticipated reductions in size, likely become more assertive in challenging government proposals as a result of Members’ knowledge that they represent the wishes of voters.  While this will ultimately improve governance through enhanced accountability, formal mechanisms above and beyond the Salisbury Convention and Parliament Acts would need to be established to confirm the continued primacy of the Commons, and to safeguard against legislative deadlock.  The House of Commons, as the driver of reform, could feasibly specify in legislation the powers of a revised Upper Chamber, for example by restricting the selection of ministers to the House of Commons.  However, the establishing of joint legislative committees to reconcile competing drafts of bills, as used in the United States, would further enhance the democratic functionality of Parliament.

With Clegg’s speech serving as a reminder that reform of the House of Lords remains a primary liberal concern, the opportunity for streamlining the structure of the Chamber as well as its composition, is one that should not be passed up.  Making such modifications simultaneously would maximise the efficiency of reform, fulfilling the desire for both democratic legitimacy and expert input into legislation.

Nuclear Fallout: Iran’s Worsening Relations with the West

When European foreign ministers met in Brussels last week, the agenda was dominated by discussion of measures to be taken against Iran.  Such considerations were primarily a response to an IAEA report, released in early November, suggesting that activities in the Republic indicate the conducting of tests necessary for the ‘development of a nuclear device’.  However, the magnitude of such discussions was undoubtedly elevated by the recent assault on the British embassy in Tehran, which has been asserted by senior figures to have been state-supported and has accordingly been interpreted as a direct attack on Western interests.    

Despite continued protestations from Tehran that its nuclear programme is for peaceful purposes only, Britain has been particularly keen to impose further sanctions.  The storming of Britain’s embassy has done little to remedy an already delicate situation: Iranian diplomats were expelled from London on 2 December in response to the attack, with British diplomats from Tehran being similarly evacuated, while an announcement was made on 22 November that Britain was severing ‘all financial ties with Iran’.  As a result, Iran became the first country to have its entire banking sector cut off from UK financial institutions, being denigrated from all sides in the process amidst growing concern regarding Tehran’s increasingly secretive behaviour and political infighting.

The Iranian parliament (majlis) responded by voting, with a large majority, to downgrade diplomatic relations with the UK, effectively expelling Britain’s newly appointed ambassador, Dominick Chilcott.  In so doing, Tehran is teetering towards the diplomatic wilderness.  While sustaining diplomatic relations would arguably not be enough to avert mounting tensions, let alone definitively resolve the nuclear impasse, such outcomes appear markedly less likely in their absence.  

This situation has potential diplomatic implications beyond Iranian borders.  Prior to the recent restructuring of relations, Britain had played a frontline role in efforts to manoeuvre Iran into conforming with internationally agreed nuclear protocols.  While foreign minister William Hague insists that British-Iranian relations have not been cut completely, with the possibility remaining of dialogue at international meetings as occurs between Iran and the US, former minister Mark Malloch-Brown observes that London’s role in negotiations will, in all probability, shrink significantly.  By necessity, being less well-informed than previously, Britain will cease to be the primary point of contact for other nations; Britain, without an embassy to remain in the loop, will become a ‘bystander’, and a check on Iranian actions will be lost.

Elsewhere, confirming widespread objection, France, Germany and the Netherlands all recalled their respective ambassadors from Tehran for consultations on the developing situation.  Italy and Sweden both summoned Iranian ambassadors, while Norway temporarily closed its embassy in Tehran, citing security concerns.  Hillary Clinton declared that the US ‘condemns this attack in the strongest possible terms’, describing the events in Tehran as ‘an affront not only to the British people but also the international community’.  Thus, while the storming of the British embassy was a response to the decision to impose further sanctions over Iran’s nuclear programme, the move could have boomeranged: many Western countries may now be persuaded that more rigorous measures are required.

Bernard Valero, a spokesman for the French foreign ministry, announced that President Sarkozy  had taken the initial step of proposing a freezing of the Iranian Central Bank’s assets and banning oil imports from the Republic – a notion that has Hague’s support as part of a package prescribing further punitive measures and an intensification of existing sanctions.  Such measures are an obvious extension of current restrictions placed on Tehran, aiming to introduce further obstacles in an economic climate that is already difficult for Iran to operate in.  However, with the developing eurozone debt crisis and parts of Europe on the verge of another recession, the potential for increased crude oil prices as the result of an EU oil embargo render such a strategy highly contentious.

The latest IAEA report reaffirms suspicions surrounding the potential for hostile ambitions to be underpinning nuclear developments in the Republic, providing greater detail than previously available.  Alarmingly, the report states that Tehran has undertaken activities ‘relevant to the development of a nuclear explosive device’.  Indeed, some such undertakings, notably experiments on detonating a nuclear weapon and techniques with which to adapt a device to fit into the nose-section of a missile, are condemned as useful only in the pursuit of such an end.  While this is not conclusive proof that Iran has made progress towards successfully weaponising these technologies, such signs cast an ominous shadow over the underlying intent.  Regardless of persistent assurances to the contrary, Tehran’s prior record of concealing the enrichment programme continues to drive suspicion.  As long as such ambiguity exists, relations with the West will remain hesitant.

Nonetheless, the IAEA report failed to convince officials in Beijing, while Moscow dismissed the sanctions as ‘seriously [complicating] efforts for constructive dialogue with Tehran’.  With China and Russia remaining unwilling to allow deeper UN sanctions to be imposed, the inconsistency with which the sanctions regime is applied is gradually deepening.  Indeed, Iran’s strengthening ties with Beijing, primarily based around energy, encourage sanctions to be sidestepped.  In this regard, the direction and pace of development depends on political factors as much as on technological constraints.

Mehdi Ghazanfari, Iran’s trade minister, described sanctions as ‘a lose-lose game’ with all concerned making a loss, with the West standing to ‘lose an appealing market‘ through failing to invest in Iranian oil projects.  Rostam Qasemi, Iran’s oil minister, further suggested that Iran was willing to use oil as a political tool.  However, such concealed threats will likely be difficult to act upon.  Primarily, Iran is not capable of slowing production without OPEC co-operation – other OPEC members would willingly pick up any slack to maintain output levels.  Similarly, despite Mehdi Mehdizadeh, a majlis member, claiming that oil price rises would result if Iran closed the Strait of Hormuz, it is important to recognise that Oman, not Iran, is responsible for controlling the Strait.  Ultimately, Tehran does not have the authority to carry through this threat unilaterally, and lacks the necessary support for a collective effort at disrupting supply.  Equally, to do so would represent an ill-targeted response, impacting upon non-Western consumers and severely constraining oil income, particularly in emerging Asian markets.

The measures emerging from the meeting of EU foreign ministers were relatively weak, continuing with a sanctions regime that has thus far failed to entice Tehran back to the negotiating table while failing to agree an oil embargo.  This will do little to resolve tensions and restore diplomatic relations.  However, with the Iranian issue firmly back on the agenda,  and rumours of pre-emptive invasion led by Tel Aviv or Washington gaining ground since the IAEA report was released, this is unlikely to be the final scenario.  Accordingly, the need to push for a diplomatic solution has increased – a failure to do so could result in yet further turmoil in the Middle East, be it in the shape of direct conflict or the reincarnation of nuclear arms racing in response to a nuclear armed Iran.

A Million Man Problem: Reforming Welfare to Work

The labour market statistics released this week indicate that headline unemployment jumped from 2.57 million to 2.62 million.  Such growth is worrying: the increase of 0.2 points from the figures released in October is only the fourth time unemployment has hit 8% since the three months to November 1996.

Below the surface, two even more troubling trends emerge.  Firstly, youth unemployment continues to grow, with the number of unemployed 16 to 24-year-olds breaking the one million barrier for the first time (albeit with 286,000 in full-time education, with many seeking part-time employment to supplement student loans).  Secondly, with over 633,000 claimants having been unemployed for in excess of six months, the tendency is towards long-term unemployment.

The detrimental effects of prolonged periods of unemployment are increasingly being recognised.  This is particularly true of the impact on young people, vulnerable not only to having their confidence rocked but also to future wage scarring.  That the government is increasingly focussing attention on such groups as the long-term workless and the unemployed youth is therefore unsurprising.

Implemented this summer, it remains too early to offer a valid evaluation of the coalition’s Work Programme.  However, there are three reasons to believe that the government’s plan of action will prove fruitful in easing the growing problems.  First, the Work Programme has been devised with the benefit of prior experience, learning both from past efforts and similar ventures elsewhere.  Thus, second, contracts are constructed to encourage providers to target vulnerable groups.  Third, the Work Programme is designed in such a way that the government is able reward those providers who perform to the highest standards, while penalising those who function poorly.

Aiming to deliver sustained employment opportunities to hard to reach groups, the Work Programme uses a payment-by-results model that has become familiar in the welfare to work market.  Several of these previous strategies have been condemned as inefficient, with the Pathways to Work initiative producing results worse than would have been expected had no intervention taken place, while the Flexible New Deal resulted in average costs exceeding £31,000 per job provided.  The coalition’s strategy, however, is able to benefit from DWP’s prior experience, adopting a more targeted approach in keeping with Institute for Government recommendations.  This responsiveness to labour market trends and previous shortcomings in service provision may be the key to future successes, delivering results while achieving value for money.

The most fundamental adaptation to address these failings concerns financing which, rather than coming from the Departmental Expenditure Limit set every three years by the Treasury, will come from DWP’s Annually Managed Expenditure budget – the source of back-to-work benefits.  In effect, anticipated savings in future benefits payments will fund the Programme, with the government banking on future savings outstripping current expenditure.  This is a considerable gamble, though provides a strong incentive to make the Programme work.

The Work Programme does share common characteristics with the earlier Flexible New Deal, in particular a focus on hard to reach groups while enabling private and third sector organisations to provide employment services.  Principally targeting those claiming back-to-work benefits for a sustained period, the Work Programme operates a “black box” contracting model.  Built on the premise that local providers are best placed to identify the particular requirements of each Contract Package Area, the engagement of local organisations is encouraged, customising provision to accommodate individual needs.

DWP have paid much attention to policy design – an aspect of the policy process that is often neglected.  In the past, providers have often been guilty of “gaming” the system, focussing attention on those clients with the greatest employment potential to maximise results-based revenues.  In response, under the Work Programme, DWP will use a carrot and stick approach to incentivise specific outcomes.

For instance, a differential payments schedule will reward providers with higher premiums for obtaining results for those deemed hardest to help.  Thus, prime contractors will receive £1,200 at the 13 week stage for placing a Jobseekers’ Allowance claimant in work.  For Employment Support Allowance claimants formerly on Incapacity Benefit, the corresponding payment is £3,500, thereby incentivising against helping only the easiest and most accessible.

Similarly, to encourage competition, DWP will be able to alter the proportion of clients attributed to prime contractors after two years.  More clients will be assigned to the most successful providers, with further ‘incentive’ bonuses being payable to those surpassing set performance levels.  To promote swift action, client attachment fees paid annually by DWP to prime contractors will decrease incrementally, reaching zero after three years on the Work Programme.

The steps taken by the coalition to address the problems of youth unemployment and sustained worklessness appear to be grounded in sound logic.  A look towards Australia reinforces this positive appraisal, with analysis of an early manifestation of the Job Network programme indicating that the cost of placing a client into work fell by as much as 69% (albeit undertaken prior to modifications to prevent gaming).  Furthermore, both employers and jobseekers gave favourable feedback, indicating a potential for success.

The coming months will be critical for the future shape both of the labour market and welfare-to-work services  The Work Programme is an example of the sort of adaptive policy making which has worked well in the past.  As such, it may be able to deliver the hoped for outcomes. 

The Dawn of an Arab Summer?

Little over ten months since Mohamed Bouazizi, a former Tunisian market trader, self-immolated and sparked regional uprisings, the Arab Spring is showing its most positive signs yet of blossoming into a late Arab Summer.

On 23 October, voters across Tunisia proudly paraded their pigmented fingers as they emerged from polling stations nationwide, verification that they had exercised their democratic rights and the newfound political implications this signifies: this was the first time in generations that the outcome of such a ballot has not been pre-ordained, and is the first election to be held in the region since protests got underway.  That the vote is taking place three months later than originally scheduled owing to problems with voter registration is of itself an indication of the reverence with which democratic rights and freedoms are increasingly being held.  Accordingly, in keeping with the spirit underlying the Jasmine revolution, turnout is anticipated to be high, following enhanced campaigning and freedom of political discussion facilitated by the dismantling of the secret police.  As many in their fifties and sixties reported voting for the first time, engagement is reaching impressive peaks.

The ballot in Tunisia will elect an assembly consisting of 217 representatives, who will in turn appoint a transitional government.  Rather than a permanent governing body, the assembly’s mandate will be limited to a single year; just enough time to construct a new constitution on democratic foundations (and possibly put proposals to a national referendum).  Only then will the future shape of Tunisian democracy become apparent, with the new document detailing future political configurations and mechanisms.

With strong competition from various parties and no one faction expected to produce an overwhelming majority, coupled with a proportionally representative voting system (albeit of the closed list variety), the election holds huge democratic potential.  Furthermore, Ennahdha’s inclusion in the process could further invalidate long-held assertions concerning an ideological incompatibility between Islam and democracy, blazing a trail for other transitional states to follow, and perhaps even swaying opinion within Saudi Arabia in light of the emerging succession crisis.  Fascinating times lie ahead, and the outside world will await the outcome with bated breath; Tunisia is once again in a position to influence the future of the entire region.

No doubt members of Libya’s National Transitional Council will be paying particularly close attention: following the death of Muammar Gaddafi days earlier, the transitional government declared liberation from Benghazi on the same day that polls were held in Tunisia.  Elections for a similar assembly, also tasked with drafting a new constitution and forming a transitional government, are due in Libya within eight months.  Similarly, the drawn-out process of parliamentary elections in Egypt is due to get underway in late-November following delays caused by military foot-dragging and breakdowns in political coalition-building.  Lessons from Tunis would be welcomed in both as green shoots of democracy begin to emerge across the region.

While the vast pockets of pro-Gaddafi support encountered in Libya will complicate the process and cause potential delays, the complete eradication of the regime will likely be advantageous in the longer term; unlike Tunisia, where elements of Ben Ali’s Democratic Constitutional Rally remain, and Egypt where traces of Mubarak’s National Democratic Party persist, embodied by the military’s continued presence and political involvement, Libyans will have the opportunity to build a political infrastructure afresh.  Western nations need to be prepared to offer assistance and advice where needed, but should seek to cultivate a regionally organic arrangement rather than export and impose specific models; room for flexibility is essential if the Arab summer is to reach full bloom and democracy is to persist.

e-Petitions: Power to the People?

News emerged in the past week that MPs will debate the two e-petitions to have successfully amassed 100,000 online signatures.  On 13 October, in the first such debate to materialise from the government’s latest e-democracy experiment, the House will debate controversial calls to remove benefits from those found guilty of involvement in recent riots that swept the country, while on 17 October the topic of discussion will be the somewhat less contentious issue of releasing documents relating to the 1989 Hillsborough disaster.  High speed rail, however, will not feature on the agenda after the petition presented by campaigners against the £34bn project, despite accruing more than the requisite number of signatures, was deemed to be void as only half were gathered online.

In the previous meeting of the Commons Backbench Business Committee, the first since the e-petitions website went live a mere two days prior to the summer recess, no Member broached either of the issues dominating online activity.  Accordingly, the Committee, tasked with discussing the merits of e-petitions surpassing the 100,000 signature mark and deciding whether or not to assign a Parliamentary slot, did not allocate any time on 15 September to their discussion.  Despite far exceeding the levels of online support deemed necessary to trigger a Commons debate, discussion by MPs in the Chamber was effectively postponed until after the Autumn Party Conference season at the earliest.

This failure to act was broadly criticised; claims that omitting to allocate time to debating issues raised through official channels confirm that e-petitions are a light-touch gained momentum.  Furthermore, following the HS2 ruling, others viewed e-petitions as failing in their quest to produce a richer democratic framework, being detached from other forms of participation rather than promoting a joined-up system of participation.  How much truth there is in these assertions will only become clear once the procedures and infrastructure mature, though if history is to be our guide, such allegations may prove correct.  Contrary to contentions that the entire notion cheapens democracy, relegating Parliamentary tradition to ‘X Factor style politics’, such a failure would be a missed opportunity for broadening democratic engagement.

The notion of petitioning Parliament dates back centuries and, in its purer paper form, has long been an accepted means through which to convey opinion to the government of the day.  Digitising the process arguably overcomes logistical barriers posed by narrow localism, encouraging participation in the political realm across a wider geographical area and reinvigorating a little-understood and neglected mechanism through the application of twenty-first century technology.  Indeed, with paper petitions being deposited behind the Speaker’s chair in a plastic bag upon receipt, John Bercow has suggested that placing petitions online will enhance legitimacy and the seriousness with which they are taken, in turn enriching democracy by encouraging participation in the political process.

To be sure, online petitions are not an innovation of the Tory-led coalition; Hollyrood began experimenting with cyber suffrage as early as the turn of the new millennium, while localities such as Bristol and the Royal Borough of Kingston upon Thames joined the progressive e-democrats in 2004.  This is not to mention the Number 10 e-petitions website that was suspended immediately prior to the general election in 2010.  Significantly, according to Fergus Cochrane, clerk to the Public Petitions Committee at the Scottish Parliament, e-petitions now outnumber their paper counterparts, confirming the benefits to be had from providing greater participatory opportunities.  

It is important to recognise that any debate emerging from an online petition is not intended to coerce the government into action: the popularly held belief, propagated by the e-petitions homepage, that e-petitions are a simple means to ‘influence government policy’ is misguided.  This is a reality that the government needs to address in order to avoid disengaging those it seeks to galvanise, having been a primary failing of the previous Number 10 petitions website.

Instead, as noted by Peter Riddell, the underlying objective is to enhance public engagement and facilitate debate on issues of popular importance.  In this respect, e-petitions do not bestow upon the public the direct ability to force the government’s hand, and rightly so.  They do, however, allow a degree of influence over the political agenda and provide an additional channel of involvement.  Such is the nature of representative democracy.  Consequently, given the tight limits on Parliamentary time and the deficiency in the number of days allocated to Backbench Business Committee matters, not every petition achieving the 100,000 signature target will be deemed worthy of a full-length debate; some may be adequately dealt with by a ministerial statement on the issue in the House, while others may not warrant any action.  With this being a logistical necessity rather than a broader indictment of e-petitions, it is unfortunate that this reality brings the e-petitions website dangerously close to the failings of its predecessor.

In an interesting contrast to the Westminster model, the Public Petitions Committee in Scotland offers advice and feedback on issues such as wording and topicality, promoting relevance to government business and maximising the potential for success.  With the Committee reacting to petitions covering issues within the Scottish Parliament's remit rather than relying on the court of public opinion to gauge suitability as per the Westminster interpretation, the Hollyrood model provides greater scope for intelligent and inclusive agenda setting, albeit in a less than democratic fashion.  However, this brings the benefit of avoiding strictly populist issues that often verge on the absurd – the petition on the Number 10 petitions website to install Jeremy Clarkson as PM, receiving almost 50,000 votes, is a prime example.

With e-petitions not handing the electorate the unqualified power to determine the legislative process that many thought the process promised, opining that the entire notion is failing to empower citizens has become an attractive proposition.  Democratic arrangements in Britain,  however, coupled with the already-manic Parliamentary timetable, preclude such an aim.  Nevertheless, in excess of a million digital signatures have thus far been collected, and debates have been scheduled in the Chamber on issues arising directly from e-petitions.  Broadening the scope for participation in such a way undoubtedly strengthens democratic credentials, with the ability to shape the political agenda, and potentially legislative discourse, empowering citizens with greater leverage.  While the system may not be perfect (the arbitrary 100,000 signature requirement, for example, may require future adjustments), any means that promotes participatory potential can only be good for the health of democracy.

Freedom Of Speech In Post-Riot London

Announcing a 30-day blanket ban on marches across five London boroughs (Tower Hamlets, Newham, Waltham Forest, Islington and Hackney), Home Secretary Theresa May yesterday derailed plans for English Defence League (EDL) demonstrations on 3 September.  Following a request from Scotland Yard Acting Commissioner Tim Godwin, May took the decision to ban ‘all marches’ after having ‘carefully considered the legal tests in the Public Order Act and balanced rights to protest against the need to ensure local communities and property are protected’.  Is this a step too far, illegitimately restricting free speech, or is there a genuine call for pre-emptive action on grounds of preventing public disorder?

Adding another dimension to the already thorny trade-off between liberty and security is the similar ban that May sanctioned in Telford on 13 August amidst similar fears of disorder.  The Met, citing receipt of ‘specific intelligence’ which led it to believe that ‘serious public disorder, violence and damage could be caused by the presence of marches in these areas’, suggested that a ban was the most effective avoidance strategy and cemented a dangerous precedent.  With many such demonstrations resulting in some degree of violence, both with opposition demonstrators and amongst EDL sympathisers, the argument that all future EDL demonstrations should be outlawed on similar grounds will gain momentum.  This would be a clear violation of free speech principles; while the outlook being championed may be abhorrent, such a reaction, flying in the face of liberal democratic values, would prove equally objectionable.  Furthermore, drawing attention to the ban not only allows the EDL to portray an image of a subjugated group, but also retracts some of the rope, through prevention of negative press coverage, afforded to the group with which to hang itself.  In this respect, an outright ban appears counterintuitive.

With Stephen Lennon, the EDL's founder (also known by the name Tommy Robinson), proclaiming that the EDL would ‘still show up’ in Tower Hamlets, vowing to hold a static demonstration and ‘have our voices heard’, the potential exists for any disorder to be amplified by the ban.  While a statement on the EDL website claimed that ‘[n]owadays, the anti-extremism aims of our organisation are clear, and there is no reason to think that an EDL demonstration would contain any dangerous elements’, such contentions are easily refuted by Lennon recently being charged with common assault following an altercation at a demonstration.  Similarly, the assertion is fundamentally flawed insofar as the EDL was formed with the specific objective of protesting against the alleged spread of Islamic extremism; with Tower Hamlets playing home to the sizeable East London Mosque and a large Muslim population, any such action is destined to stoke tensions unless it is starved of the oxygen of publicity.  Indeed, Lennon has already acknowledged that ‘the police have told us that it will be the most hostile environment they have seen. … They say marching through there will be absolute suicide’.  The question then arises as to whether a static meeting similar to that which eventually took place in Telford would pose a greater threat of public disorder than the initial demonstration, with the latter at least having the strategic benefit of wayfaring brevity.

It is indisputably true that disorder in London, in the wake of recent events, would be even more unwelcome than usual.  Nonetheless, rumours that budget constraints limiting further police overtime played a part in deliberations, coupled with favourable consideration for a police force under immense strain, would be detestable if proven.  Indeed, with the threat of a static demonstration, about which the Met are powerless to act, a visible police presence will likely be required regardless.   Equally, spurious links between Anders Behring Breivik and the EDL should not be allowed to carry any weight: many a convicted criminal will undoubtedly have (proven) sympathies to legitimate political groupings.

It would appear, then, that Peter Tatchell was accurate in labelling the blanket ban a ‘complete overreaction’, suggesting that such action has the potential to be vastly counter-productive and correctly asserting that anti-democratic groups can only be defeated through ‘exposing… bigoted and violent views’.  (However, his favouring of ‘mass counter protests’ would perhaps be undesirable in this instance, given the history of EDL disorder and the ethnic composition of the area in question.)  Indeed, the key to overcoming such divisive views in the long run is a policy of engagement and education, promoting tolerance of all views and allowing those based on prejudice and intolerance to be shown as such.  As Thomas Jefferson famously declared, ‘error of opinion may be tolerated where reason is left free to combat it’.

Criminal Justice: The Use Of Reasonable Force

Just before midnight on 22 June, four masked men attempted to break into the rear of a house on a quiet cul-de-sac in Salford.  One of the would-be burglars, 27-year-old John Leonard Bennell, was fatally stabbed, dying shortly after having been discovered nearby, abandoned by his accomplices fleeing from the approaching authorities.  The householder, Peter Flanagan, 59, was arrested on suspicion of murder (his son and son’s girlfriend were also initially arrested, though were both released without charge), having telephoned police to alert them to the crime.  Flanagan was later bailed until 25 July.

Chief Superintendent Kevin Mulligan stated that Bennell suffered ‘at least one stab wound’ during an altercation in the house, which involving at least one person from the address and four people breaking in, though Mulligan refused to be drawn on whether the weapon was taken into the property by the intruder or belonged to the householder.  The cause of death was later confirmed to have been a stab wound to the chest.  News of the disturbance has again stimulated discussion regarding the balance of rights between intruder and householder.

The incident in Salford occurred mere hours after David Cameron confirmed families should ‘feel safe in their homes’, promising that homeowners would not be punished for using ‘reasonable force’ to protect themselves and their property.  Seeking to appease public opinion as he announced that controversial proposals concerning plea bargaining are to be scrapped, Cameron said that the new Justice Bill would ‘put beyond doubt that homeowners and small shopkeepers who use reasonable force to defend themselves or their properties will not be prosecuted’.  This pledge will now be put to an immediate test, with the problem of quantifying what is ‘reasonable’ once more being brought to the fore by an encounter that evokes memories of the case of Norfolk farmer Tony Martin.

Current CPS guidelines dictate that anyone in England and Wales can use ‘reasonable force’ to protect themselves, or others, as well as to make a citizen’s arrest or prevent crime.  Similarly, homeowners are safeguarded so long as they act ‘honestly and instinctively’; according to the guidelines, ‘fine judgements’ pertaining to the force employed cannot be expected in the heat of the moment.

To simplify, employing force in self-defence is legally justifiable so long as there is a genuine perceived threat, irrespective of whether this estimation proves to be accurate.  Rightly, homeowners are not required to wait for the smoking gun in defending themselves or their property; to do so would render the homeowner powerless to defend his right to quiet enjoyment of property and potentially produce fatal consequences.  Applying this rule, Flanagan’s arrest is not indicative that he will be charged with an offence.  Instead, this provides an opportunity for law enforcement and prosecution services to establish precisely the chain of events that led to Bennell’s death.

By extrapolation, self-defence can remain reasonable in instances where the intruder dies as a result.  This raises an interesting point alluded to by Mulligan: can a weapon be justifiably used in self-defence only if the attacker is in possession a similar instrument (or if it is the attacker’s weapon that is used against him)?  Morally, such a directive would appear attractive.  However, with no way of confirming whether an intruder is armed, such a precautionary measure is overly prudent: given that an intruder’s presence is necessarily unsolicited and impinges a homeowner’s right to freedom, a default assumption of intent to cause harm or damage is not unreasonable.

Importantly, CPS guidelines require an element of proportionality, warning that prosecution could result from ‘very excessive and gratuitous force’; the 2009 case of Munir and Salem Hussain, for instance, demonstrates that should a homeowner give chase to a fleeing intruder, the reasonableness assessment needs to be recalculated to accommodate the reduced threat posed to the householder.  Equally, the perceived threat emanating from multiple intruders is undoubtedly greater than that posed by a single burglar, thereby vindicating greater force.  This was a factor in the Martin case and will unquestionably be a central consideration in determining whether to prosecute Flanagan.

Clearly, the legal framework concerning reasonable force is inherently subjective, leaving an element of circumstantial consideration for jurors; as no two cases are identical, the principles of the law must be applied to the facts of each case individually.  However, contrary to Cameron’s assertion that protection from prosecution needs to be clearer, the current legal stance evidently favours the householder, permitting the application of force, fatal if necessary, to protect oneself and one’s property.  Correctly so.  While not providing license for unremitting aggression, this is consistent with Cameron’s suggestion, in 2010 when leader of the opposition, that ‘[t]he moment a burglar steps over your threshold and invades your property, with all the threat that gives to you, your family and your livelihood, … they leave their human rights outside’.

Given current knowledge of the facts of the case, to prosecute Flanagan would not appear to be in keeping with precedent or in the public interest.  In November 2001, a jury took only fifteen minutes to clear a householder who fatally stabbed an armed intruder in his home.  With Flanagan telephoning police to alert them to the developing situation, a reasonable person would suggest that Flanagan took appropriate steps to prevent a violent situation developing.   Moreover, with multiple intruders being involved in the incident, the use of force in self-defence within his property does not appear to be disproportionate; heavily outnumbered, whether the intruders were armed is a seemingly moot point.

The coincidence of the altercation with Cameron’s speech may prove to be a win-win situation for the Conservative Party.  While CPS guidance concerning reasonable force was issued under a Labour government, a decision not to prosecute will be remembered as having been taken under a Conservative-led coalition.  Alternatively, should the case go to trial, Cameron’s assertions will be proved correct, potentially restoring faith in the Conservatives as a stalwart of law and order following the debacle surrounding proposed sentence reductions.

*UPDATE*

• Ken Clarke, the Justice Secretary, seeking to address the ‘constant doubt’ surrounding the current legal position and in a seeming reference to the Flanagan case, confirmed on 29 June that a householder who knifes a burglar will not be adjudged to have committed a criminal offence.  Individuals should, Clarke opined, be afforded the right to use ‘whatever force necessary’ in protecting themselves and their home, though this does not extend to shooting a fleeing intruder in the back.  This proclamation is wholly in kilter with the spirit of the current legal stance, though replacing direct use of the problematic term “reasonable force” with more assertive phraseology will doubtlessly be portrayed as a deepening of the policy by a Conservative-led government attempting to reinforce their traditional image.