Half a cheer for vaccine passports

I could write to curse the idea as discriminatory and a shackle of servitude; or I could praise vaccine passports as a route to freedom. I could instead say both, but do not let the government machine anywhere near them. There is a better way.

It has been said by many commentators that a vaccine passport scheme would be divisive and discriminatory. It would indeed treat people who have not had the jab differently from those who have, but that is not much of an objection: if it liberates millions, let them be liberated. Some people have eyesight too bad to let them drive, but we do not ban cars for everyone in the name of equality. If a scheme reopens businesses on the brink of bankruptcy, let us do everything to let them reopen.

Those who are immune are at no risk and are no danger to anyone. At the beginning of this epidemic, I pleaded for those who had been through the disease to be given their freedom back – and not just for themselves but to let the economy come back on line. Those ‘immunity passports’ were discussed but it came to naught. Now the epidemic is practically over in the United Kingdom, because of the immunisation programme, and new infections from Europe and America will hit that wall of herd immunity. We should be fully opening soon.

Even so, the fear is still there, of crowded venues, hot with breath in our faces, the few yet diseased spreading to those still vulnerable, who cannot escape. The trains into London are still emptied by fear and no one will sit next to anyone else – they stand, in half-empty carriages. What will they be like in pubs and cinemas?

If customers are to have confidence to return and spend money in pubs, clubs and theatres, they want assurance. These are the vaccine passports.

The pubs and venues are the ones who need a scheme to keep their customers safe; not the government. Nothing the government does depends on it. However in this emergency the government has taken control of every aspect of life, and death. They feel responsible and the legion of advisers (if they were more honest) enjoy the power. The politicians, bureaucrats and newly empowered doctors now need to step back. It is not their fight. The government’s job in this is to take their hands off and open us up as fast as possible. If they demand that pubs be closed to those still at risk, let the pubs determine the question. They will do it better.

If the Civil Service get hold of a vaccine passport system, they will mire it in bureaucracy, and give a lucrative monopoly to a company with the slickest PR department. That company then has a financial interest in making it as complicated and expensive as possible and of staving off the end of lockdown, without actually achieving the objective. The lockdown has been manna from heaven for leech companies. The American government, remember, spent an eye-watering $1 billion on a probe, and it got to Mars; the British government spent eleven times the amount on Track and Trace and it didn’t get off the ground.

The pubs however know what they need to get customers through the door. It does not need a nationwide, intrusive database, it does not need to follow you round the country and it does not need a heavy, laminated and bound document set to last years: the longest it would ever be needed is a couple of months until the last of the lockdown is sloughed off. It just needs a simple card with a bar code or QR code for the user’s name and likeness and confirmation that they have had the jab, certified by the existing database. A single, spotty geek fresh out of an IT course could programme that, and for barely more than the cost of a pint. Breweries and theatres and airlines could do their own or join together for one they can all accept. All there is to say to Matt Hancock is ‘get away and stay away’.

Some dangers with vaccination passports have been well rehearsed. For me, the worst are twofold. The first is that the government will take ownership of the scheme and effectively persecute those who (for whatever reason) will not have the vaccination. The second is more sinister: that if the scheme is successful, allowing the vaccinated to crowd into sports grounds, pubs and theatres, that may be an excuse to prolong the lockdown for the rest. Indeed if a really expensive, bureaucratic scheme were adopted, the lockdown would have to be extended just to justify the expense and effort.

Overall – no – Matt Hancock’s Department must not even contemplate a vaccine passport scheme. However if the venues want one, as well they might, they will do it far better than a bureaucracy ever could.

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Character imbues the endeavour

Behind every successful enterprise is the character of its founder, without which it can only fade into mediocrity. History is but the biography of great men, Carlyle assures us: we prefer now to see systems and processes, but he was right: that initial spark of genius puts life into words and forms it into success or failure. The departure of that founder may often be its end.

Rome required Augustus. There could have been no Napoleonic Empire without Napoleon. As in the macrocosm, so in the microcosm.

A successful institution cannot be created just by one who knows that something must be done, but who knows what must be done, and how. It is not enough to determine objectives and pay hired men to pursue them: they do not have the vision nor motivation. Real objectives cannot be rendered in words but must be lived. It was the genius of the late Duke of Edinburgh that he could see the destination and the route, he could find those who shared his vision and he made them enthusiastic. He also made sure they got on with it. He was a consummate naval officer.

He did not see ideas in a one-dimensional nor black-and-white manner. His enthusiasm for science and engineering saw no contradiction in his love of nature and drive for conservation. The two do not conflict and have come to complement each other. Nature conservation is very much of our time, but before the Duke of Edinburgh took a hand it barely registered beyond the confines of the National Trust and faintly embarrassing feelings of nostalgia – but while the National Trust were content to buy to preserve and leave otherwise alone, the charities established by Prince Philip took on active research, education, engagement of local bodies, and creating a ‘conservation community’. That cannot be done without vision and a clear objective, and these cannot be achieved without the mind to direct them. The Worldwide Fund for Nature, the Wildfowl Trust (‘We formed it over dinner – duck I think it was.’); these are the product of a focussed mind.

The most popular legacy is the Duke of Edinburgh’s Award Scheme, which was quickly established all over the Commonwealth, and it above all bears the stamp of the Prince’s character and drive. It breeds drive, independence and resilience: I cannot imagine any committee coming up with it. Those of us who have been through it up to Gold, carry its legacy with us, which is a piece of the character of the Scheme’s founder. It has gone beyond the Commonwealth too and had imitators. (The Duke of Bragança, the man who should be King of Portugal, formed his own scheme in his homeland, but follows the template and the drive laid down by the Duke of Edinburgh.)

The challenge for a founder is to keep the foundation going beyond his time.  It is not easy.  The state built by Cromwell could be built only by Oliver, and when he died, his son Richard was unable to hold it even for a year, as Hobbes recounts:

Thus was Richard Cromwell seated on the imperial throne of England, Ireland, and Scotland, successor to his father; lifted up to it by the officers of the army then in town, and congratulated by all the parts of the army throughout the three nations; scarce any garrison omitting their particular flattering addresses to him.

….The army was inconstant; he himself irresolute, and without any military glory. And though the two principal officers had a near relation to him; yet neither of them, but Lambert, was the great favourite of the army; and by courting Fleetwood to take upon him the Protectorship, and by tampering with the soldiers, he had gotten again to be a colonel. He and the rest of the officers had a council at Wallingford House, where Fleetwood dwelt, for the dispossessing of Richard; though they had not yet considered how the nations should he governed afterwards. For from the beginning of the rebellion, the method of ambition was constantly this, first to destroy, and then to consider what they should set up.

Systems are attractive, but systems are dead hands: it needs men and women of vision. Systems without new growth are restraints against the very creativity which was required for the foundation they bind. The founder must therefore not just create a system but create successors who have the life of the idea within them. Robert Baden-Powell achieved it, with a good deal of the cult of personality to follow him – each troop runs as if B-P were looking over their shoulder even today.

I think of the sudden enthusiasm for free schools, which had great success, when there was for each a directing mind. As long as that mind has remained to guide and to chide, they continue to thrive. Some were established by parents wanting a better school for their children, but they have seen their sons and daughters grow up, leave the school, and they themselves need no longer be involved: those schools can flourish only if the enthusiasm is renewed with each upcoming generation.

Now, to be fair, vision is not enough for continuance: Jordan Peterson observed that two characters are needed: it takes a liberal, creative mind to create a new endeavour, and a diligent, conservative mind to run it. The great men are those who can be both.

Some foundations of our age have fallen into dotage by following good but dead rules, the fire having gone out. Many have been captured by political activists lusting after their funds and the prestige of their name, but with no care for the original drive.

For those foundations created by the Duke of Edinburgh there is hope, because much of his drive was in creating in his successors the same vision. The Award Scheme has alumni ready to take on the world, knowing what the scheme is for. The conservation charities found a new dynamic, beyond mere preservation. He has gone, but his spirit imbues them all. Long may it last.

Going back to Carlyle, he explained his theme at greater length than an line:

Universal History, the history of what man has accomplished in this world, is at bottom the History of the Great Men who have worked here. They were the leaders of men, these great ones; the modellers, patterns, and in a wide sense creators, of whatsoever the general mass of men contrived to do or to attain; all things that we see standing accomplished in the world are properly the outer material result, the practical realization and embodiment, of Thoughts that dwelt in the Great Men sent into the world: the soul of the whole world’s history, it may justly be considered, were the history of these

The imperial system of Augustus went into decline the moment he breathed his last. Napoleon’s too as he boarded the Bellerophon to exile. Their achievements were “the practical realization and embodiment, of Thoughts that dwelt in the Great Men” and nothing without them. We may hope for better from the foundations left to us where the spirit of the founder still fills them.

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Good night, sweet prince

In many fields, the Duke of Edinburgh’s service to the Commonwealth and the world was immeasurable. His passing leaves a hole it would take legions to fill.

I met him but once, many years ago, while he was engaged in his keenest endeavour: encouraging the development of youth through his Award Scheme.

He alone could create such a scheme with credibility, as he represented its highest values. He served with distinction in war and peace; those humourless souls who in later years jibed at his great heart had never fought with a cool head in a ship under heavy enemy fire, deep in the heart of a war for civilisation itself and earning in his own right, high praise of his fellows; nor have they, as he did, created in peacetime so many schemes and charities whose good work we may take for granted.

His first duty, he often said, was to support Her Majesty, and that he did, over a reign of some seventy years by her side, troubled and bewildering times as they often were, ensuring that our Queen, whose own sense of duty is unwavering, could perform her role without being worn down by life which would flatten most of us in a moment, with a smile and an ever-kindled heart.

Many, like myself, may have had most influence from Prince Philip through the Duke of Edinburgh Award Scheme. Unfashionably, but with immense success across the world, it reproduced something of those lessons drummed in at Gordonstoun, character-building, resilience-building, providing in each new generation those who can stand against the storm. Had it not been for the founder’s own character, wrought in peace and war, it could not have succeeded as it has.

he was indeed the glass
Wherein the noble youth did dress themselves:
He had no legs that practised not his gait;
And speaking thick, which nature made his blemish,
Became the accents of the valiant;
For those that could speak low and tardily
Would turn their own perfection to abuse,
To seem like him: so that in speech, in gait,
In diet, in affections of delight,
In military rules, humours of blood,
He was the mark and glass, copy and book,
That fashion’d others.

This was just one aspect of the man. Many more have been touched by him whether they know it or not, whether from endeavours like the World Wildlife Fund, the Wildfowl Trust, the Work Foundation or many others: he might have said that “constitutionally I don’t exist”, but wherever he trod he made the world that bit better.

Our thought now are with Her Majesty in her grief. I will pray for her comfort, as will we all, for this is first and foremost a time of sadness for our Queen. I will also give thanks for a life of service beside her.

Now cracks a noble heart. Good night sweet prince:
And flights of angels sing thee to thy rest.

Unreasonable Judicial Review

The government’s response to a paper on judicial review, which was my last post here, is good as far as it goes. It holds back from necessary reform though: the first such reform is a restatement of the Wednesbury rules, and specifically the ‘reasonableness’ element.

The Wednesbury rules are set out in a page on this site (Judicial Review: a guide). In essence, a decision must take account of all relevant purposes, take account of no irrelevant purpose, and must not be unreasonable. All these are hostage to fortune: the last is a bear-trap, misused to side-step the rule of law.

The paper does not refer to Wednesbury directly but does give a firm background for it: any power granted by Parliament has explicit limits, but may also have implied limits. The Wednesbury rules are implied, unspoken limits. For example, Parliament may grant councils an explicit power to licence certain businesses, but it must not use the power to favour councillors’ family businesses and suppress competitors: that will not be set out in the Act but is implied. The paper contains a stern reminder that these limits are only implied, and not a universal truth, and Parliament could disapply them, and has done.

‘Reasonableness’ is a problem though. In Wednesbury and later cases it has been explained: unreasonableness is insanity: a decision made by someone who has lost his power of reason.

Decision-makers are rarely clinically mad though, so impliedly it is an evidential question: ‘Was the decision so devoid of reason that no sane man could have made it? If so, and assuming the decision-maker was not mad, it must have been made without regard to the genuine factors or for an improper purpose.

The word ‘reasonableness’ has other meanings though in everyday life, and these have been used by some judges to widen their remit. It can be used by a judge to usurp the decision-making process so that the judge substitutes his own reasoning a the mete-rod of ‘reasonableness’. That, negating powers and discretions given by law, subverts the rule of law.

The Government paper is sound on all these points as a restatement of the strict law. However, it is only a government paper – it is not an Act of Parliament nor a legal judgment: it has no force of law whatsoever. The Ministry of Justice may feel they have done will in preparing this paper, but no judge could take it into account. It needs an Act of Parliament to give direction.

A lurking instability are that the Wednesbury Rules themselves are found in no Act of Parliament. They were deduced by the Court of Appeal in 1948, in Associated Provincial Picture Houses, Ltd v Wednesbury Corporation. That in itself may tempt an judge with a sense of a good cause to determine that some other implications are yet to be found by a judge with his own perspicacity.

The idea of reasonableness in Wednesbury is strictly limited though, and Lord Greene knew it could be abused:

It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word “unreasonable” in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting “unreasonably.” Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington L.J. in Short v. Poole Corporation   [1926]  Ch  66, 90, 91 gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another.

…….

I have ventured to express, that the task of the court is not to decide what it thinks is reasonable, but to decide whether what is prima facie within the power of the local authority is a condition which no reasonable authority, acting within the four corners of their jurisdiction, could have decided to impose.

To set this strict definition out in black-and-white law may be a challenge to the sesquipedalian legal draftsmen of our day, but it is quite simply when boiled down.

To retain the requirement of ‘reasonableness’ is consistent with what Parliament must have intended and so supports the rule of law. To extend it to allow a judge to strike a decision down by applying his own standards of reason and preference would discard the rule of law entirely, in favour of the rule of lawyers.

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Of the Office of our Blessed Saviour

We find in Holy Scripture three parts of the Office of the Messiah: the first of a Redeemer, or Saviour: The second of a Pastor, Counsellour, or Teacher, that is, of a Prophet sent from God, to convert such as God hath elected to Salvation; The third of a King, and Eternall King, but under his Father, as Moses and the High Priests were in their severall times. And to these three parts are corespondent three times.

For our Redemption he wrought at his first coming, by the Sacrifice, wherein he offered up himself for our sinnes upon the Crosse: our conversion he wrought partly then in his own Person; and partly worketh now by his Ministers; and will continue to work till his coming again. And after his coming again, shall begin that his glorious Reign over his elect, which is to last eternally.

 His Office As A Redeemer

To the Office of a Redeemer, that is, of one that payeth the Ransome of Sin, (which Ransome is Death,) it appertaineth, that he was Sacrificed, and thereby bare upon his own head, and carryed away from us our iniquities, in such sort as God had required. Not that the death of one man, though without sinne, can satisfie for the offences of all men, in the rigour of Justice, but in the Mercy of God, that ordained such Sacrifices for sin, as he was pleased in his mercy to accept.

In the old Law (as we may read, Leviticus the 16.) the Lord required, that there should every year once, bee made an Atonement for the Sins of all Israel, both Priests, and others; for the doing whereof, Aaron alone was to sacrifice for himself and the Priests a young Bullock; and for the rest of the people, he was to receive from them two young Goates, of which he was to Sacrifice one; but as for the other, which was the Scape Goat, he was to lay his hands on the head thereof, and by a confession of the iniquities of the people, to lay them all on that head, and then by some opportune man, to cause the Goat to be led into the wildernesse, and there to Escape, and carry away with him the iniquities of the people. As the Sacrifice of the one Goat was a sufficient (because an acceptable) price for the Ransome of all Israel; so the death of the Messiah, is a sufficient price, for the Sins of all mankind, because there was no more required. Our Saviour Christs sufferings seem to be here figured, as cleerly, as in the oblation of Isaac, or in any other type of him in the Old Testament: He was both the sacrificed Goat, and the Scape Goat; “Hee was oppressed, and he was afflicted (Isa. 53.7.); he opened not his mouth; he brought as a lamb to the slaughter, and as a sheep is dumbe before the shearer, so opened he not his mouth:” Here he is the Sacrificed Goat. “He hath born our Griefs, (ver.4.) and carried our sorrows;” And again, (ver. 6.) “the Lord hath laid upon him the iniquities of us all:” And so he is the Scape Goat. “He was cut off from the land of the living (ver. 8.) for the transgression of my People:” There again he is the Sacrificed Goat. And again (ver. 11.) “he shall bear their sins:” Hee is the Scape Goat.

Thus is the Lamb of God equivalent to both those Goates; sacrificed, in that he dyed; and escaping, in his Resurrection; being raised opportunely by his Father, and removed from the habitation of men in his Ascension.

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