New comedy act opens in Brighton

In a welcome return, the Labour Conference hit the boards in Brighton, with stunning comic performances all round.. ‘This is a real boost to our party’ said a Conservative spokesman.

See people you wouldn’t trust to run a tea room trying to chair a debate on macro-economic policy! Marvel at the 1950s tribute acts, as they “move composite 13” and call each other “comrade”.

After last week’s rather tame warm-up act, LibDem ’19, this a shaping up to be a corker.

The show started with a show reviewing allegations anti-Semitism, successfully kept Judenrein by holding it on the Sabbath.

John McDonnell’s magic show was back on display, with his four-day week trick: not a minute on the day, not a penny off the pay, and not a business left open.

A highlight has been Emily Thornberry: after her passionate plea to keep up the massive funding for her project, “the EU”, she turned to a hilarious story about being run down by a car: it’s the way you tell ’em Emily. She then doubled the gain, pledging to use every breath to stay in the EU to avoid an economic shock, while supporting Jeremy Corbyn to close the whole economy – an unbeatale tour de farce.

There’ll be fireworks later in the week as the leadership invite a party who blew the gaff in 1984. All eyes on the van in the car park.

Critics are hopeful of even better comedy sets as the week goes on, leading to the grand Corbyn finale. A former columnist on the Telegraph was delighted with the Labour Conference Show, and hoped it would go on: journalist Boris Johnson said it is he best boost he has had since his own prorogation performance.

Caliban the wild man

Man in the state of nature is the commonplace of Enlightenment thought, and the man who makes the chasm dividing philosophies to this day.  He is the starting point for building Leviathan.  When writing about the noble savage myth, I invoked this man in the state of nature.

The problem: there may be no man in the world who is strictly in that state.  He is a philosophical construct, a possibility.

Hobbes used the native of America as an example, and his opponents did too:  those with a benevolent view of human nature portrayed the Indians as living in harmony with their fellow man and with nature, while Hobbes observed that:

It may peradventure be thought there was never such a time nor condition of war as this; and I believe it was never generally so, over all the world: but there are many places where they live so now. For the savage people in many places of America, except the government of small families, the concord whereof dependeth on natural lust, have no government at all, and live at this day in that brutish manner, as I said before.

The American Indians in the days of Hobbes did not quite live in a state of nature but were bound in tribes and clans, and these were constantly at war with one another.  The Iroquois had a vast territorial federation, which warred with its neighbours, specifically in order to keep peace between the tribes: this is far from the ‘state of nature’.  Even the smaller tribes had chiefs, by all sorts of title, as cazique, sachem or others lost to us.

The most primitive of peoples in the world today are those uncontacted tribes of inner New Guinea, or some in the Amazon Basin, but even those half-naked forest hunters blowing darts at aeroplanes live in tribes, and could not live were they expelled to live alone.  They have a common power to keep them in thrall, which is a form of Commonwealth, however small.

On occasion, history records, a feral child has emerged from the woods, abandoned or orphaned in youth and living apart, as an animal. Those remarkable accidents may be the only people truly ‘in the state of nature’. Once they have been brought into society, they are forced within the common power, out of nature.

A tale is told of a small village in the Caucasus in the 19th century when a creature of strange appearance emerged from the forest: naked and unable to speak, the villagers took her to be an alma, the local version of the yeti myth, and captured this wild beast to work as a slave. She was however not a yeti, but a woman; a grown, adult woman who had, apparently, been living in a state of nature.  She never learned to speak and refused to wear clothes even when brought not the village, from which life she was excluded, like a beast. (Professor Bryan Sykes, in his book Nature of the Beast looks at this story, finds it genuine, and finds through genetic study of the alma’s descendants – she was used as a sex-slave – that she was African; possibly an abandoned child of an Ottoman slave.)

In a sophisticated, urban society we can have no wild men, but then we see feral children to all intents and purposes abandoned by their mother running like wolves, at war with all men, as in the Hobbesian nightmare, and when they come together they may form tribes, which are a little commonwealth, and one in no way in harmony with its surrounding society. It is not the state of nature, but a hint at what this would be like.

The radical wants to break the bondage of those ties in the hope that something new will emerge, while the learned conservative, seeing these examples, has a good idea of what that will be, and shudders.

The idea of a wild man, or woman, living long outside all society, never having been part of society, seems inconceivable, and the few recorded examples we have are saddening and tragic, and end either in death or forced assimilation to society, or slavery within it. There is not a single example of a wild man living the way the Enlightenment philosophers liked to hope, in gladsome harmony with nature, nor of numbers of them living known to each other without forming or being forced into a social and political bond. For the state of nature of the wild man is, in the most famous passage of Hobbes:

wherein men live without other security than what their own strength and their own invention shall furnish them withal. In such condition there is no place for industry, because the fruit thereof is uncertain: and consequently no culture of the earth; no navigation, nor use of the commodities that may be imported by sea; no commodious building; no instruments of moving and removing such things as require much force; no knowledge of the face of the earth; no account of time; no arts; no letters; no society; and which is worst of all, continual fear, and danger of violent death; and the life of man, solitary, poor, nasty, brutish, and short.

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Top people are people too

There is nothing I can write to better Sarah Vine’s heartfelt piece in the Mail this morning on the sundering of personal friendships by the iniquitous workings of politics:

It is a reminder (if ever we need a reminder) that the faces we see on the screen are the faces or real, flesh and blood people, doing a job, well or badly, but behind it all real people who may prefer to go home and sit with their families, go out on picnics in the summer, meet friends, with dimensions, senses, affections, passions; fed with the same food, hurt with the same weapons, subject to the same diseases, healed by the same means, warmed and cooled by the same winter and summer.

Then came the Brexit campaign.

I wrote yesterday about the sundering of society, and that it is not about the European Union. The breach is deeper. The incomprehension between two fellows otherwise fast friends can be an inherent difference and the incomprehension needs effort to comprehend and tolerate. Without both sides of the classical split, the nation falls apart, and there cannot be a single thriving society which does not have both working within it. Then come these sundering moments, and the differences appear a yawning chasm.

These are not caricatures but people, subject to the same frailties as are we all and broken-hearted at loss as anyone is.

It’s not about Europe

To the European readers of this blog. you will have been puzzled over the last three and a half years about what is going on in the political turmoil of the United Kingdom of Great Britain and Northern Ireland, and how a simple question about membership of a trading bloc can have caused so much rancour. The answer is that it is not really about the European Union.

We talk about ‘the two sides’, however there are not two sides but several sides.  There are some who do believe wholeheartedly in the grand European Project, but these are a minority of eccentrics, mostly found in the Liberal Democrats (and that party’s membership is far from united on that point: several campaigned for ‘Leave’).  For their opposite, look at some of the wild men of UKIP, but they caused that party to fall from a leading political force into obscurity.  The majority are in the middle, pushing their own subtle interpretations upon ‘Go’ or ‘Go back’, with their own degrees of vacillation, force or aggressive timidity.

Even so, the sundering argument is not about the European Union at all.

I trod the streets, I knocked on the doors, I heard what was said and what was not, and I have heard all that has been said afterwards. Much of what I heard was not about the actuality of the European Union but ad hominem arguments that could have stood for either side in the nominal subject of the debate. On the Leave-leaning side most of what was said was about the follies and iniquities of the European Union, but also the follies and iniquities of the know-all urban élites pushing their project in order to extinguish the particular genius of this nation. From the Remain-leaning side there was economic argument, largely the surmises of ‘Project Fear’, but mostly attacks on the leaders of the Leave campaigns – against Nigel Farage; against Boris Johnson; against the sort of people who join UKIP.

This is the key to it: the split in the nation is not about Europe, but about what we think the other side are like. To desperate Remainers, the other side are incomprehensible unless they can be portrayed as idiots or deceivers, and that is why those accusations have poured continually from the Remainiacs. To Leavers, the Remoaners can only be traitors and those with no allegiance but to themselves.

The split there is deeper than Europe: it is a split between the liberal and the conservative reactions, and even within them: for older conservative-minded characters, reclaiming the nation is a top priority before it is too late and the upcoming generation snuff it out, while younger conservative-minded characters may cling conservatively to the familiar of Europe, and to naïve political ideologies picked up in idealism and not yet grown out of. For natural liberals in contrast, the European Project is a power to be harnessed to enforce the liberal vision of the world, and breaking from it is to break their dreams, which is a very deep wound. The priority though is the dream and the liberal ideal, not the European Union.

The incomprehension between the two or three sides is the same as the liberal-conservative incomprehension analysed by Jordan Peterson, and occasionally referred to and described on this blog.

Listen to the way the debate is expressed: in discussing Europe, all sides discuss only Britain and our context, because Britons are fundamentally unable to place ourselves in the continental context. The argument is not a Leave-Remain argument: the European Union is only a ball to play with, a McGuffin. The argument is a Conservative-Liberal one.

The very nature of the nation is in play and the values on which it is to be built. This explains the ferocity and incomprehension, and it will continue with this or other nominal subjects for many years yet.


Challenging the challenges

Judicial review is not meant to happen: officials make decisions because the law says they can, so the law only has a place in enforcing those decisions. Judicial review is there to restrain an official from acting outside his authority. The problem is how to determine the ends of authority, and with judges adding their own conditions on that authority as an excuse to interfere.

The judicial review procedure is not there to second-guess an administrative decision and it is not an appeal against a decision., but in the popular imagination judicial review is becoming just that, and the popular imagination has a tendency to coalesce into expectation, and expectation presses upon the law and affects a judge’s willingness to concede. A corrective is needed.

I like the old forms of writ for their exotic names; the Writ of Certiorari, to quash an action, a Mandamus to compel action, a Prohibition (less exotic) and the one we lost at some point, the Quo Warranto, asking “By what authority…?” They come from the days of petty courts and corporations that needed restraint when they exceeded their rights. Now renamed, those writs hover over the shoulder of every public body trying to get on with its job.

The principle is meant to be that decision-makers make decisions and judges only keep them within their authority – the judge does not rule on the wisdom or benevolence of a decision. I have since this post was first published contributed to a guide for this site, but it is a moving scene: every so often one judge will reassert firmly the principle of non-interference, then another judge will ignore that and blatantly step into the decision-maker’s chair.

When given an excuse to interfere, some judges will grasp that power for all it is worth, and through use and abuse, the precedent grows up for more intervention.

A big leap was taken in the GCHQ union case in 1986: here for the first time the House of Lords was willing to apply judicial review to an exercise of the Royal Prerogative, which is astounding: it would be quite within the purpose of judicial review to define the limits of the Royal Prerogative and to restrain an act that goes outside it (the Court of King’s Bench was doing that from King James’s time at least) but the Royal Prerogative is not a delegated power with defined purposes and preconditions – it is the remaining sovereign, arbitrary authority of the Crown – and so it cannot be judged on Wednesbury principles like some local council’s licensing function. The review in the CCHQ case failed, but it opened the door and blew a wide hole in the principles that are meant to justify the power of judicial review. We are seeing this in the Supreme Court this week.

The Supreme Court was created to be the final arbitrator on the applicable law at the highest level of commercial contract disputes and grave criminal appeals. At least half its workload at any given time though is wasted in challenges to administrative decisions. The number of asylum and immigration cases alone is staggering – these should never be judicial matters in the first place, let alone take up the time of the highest court in the land. It brings the judicial arm into a place it should not be and poisons expectations and the court’s approach.

To correct this drift? Parliament in principally to blame, from badly worded statutes, and so when there is a parliament again, not this pointless, zombie, parliament we have at present, then it could take a hand. All those Acts of Parliament which grant powers subject to worried conditions, provisos and procedures must be straightened out, which will be a long task. Better education of civil servants which draft the daft Bills would help too. The biggest impact could come from changing the laws on immigration and asylum, to grant absolute authority to the Home Secretary so that her decisions cannot be challenged: it would free the courts up at a stroke.

More pointedly, perhaps it needs a new Act of Parliament, as a sort of act of settlement in the question, to codify what Parliament means when powers are granted, and to codify the meaning of the Wednesbury rules (if they are to remain). It can put in writing the limits of the judge’s role, to match the austere limitation that judges have pronounced, and other have hitherto disregarded in the absence of black-and-white authority. Finally, it can set down what did not need to be said before; that the Royal Prerogative is the prerogative of The Queen and her ministers, not of the judges, and not something to which judges can add their own conditions and imagined purposes.

Parliament stands mercifully prorogued at present, as long as the Supreme Court does not interfere. It will be useless when it returns. A dissolution is the only hope for reform; as long as the courts do not try to interfere with a decision to dissolve too.

Interest rei publicae ut sit finis litium.

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