Will Due Process Be The Final Casualty Of Westminster’s Sexgate?

Sir Michael Fallon - Secretary of Defence - resignation sexual harassment allegations

Facing up to historical injustice while protecting due process rights for today’s accused – the irreconcilable conflict at the heart of #BelieveTheVictim and Westminster’s escalating sexual harassment and assault scandal

Scottish Tory leader Ruth Davidson was quite correct when she likened the torrent of sexual harassment and assault claim now roiling Westminster to a dam having suddenly burst. Just as the Harvey Weinstein scandal led to allegations against numerous other Hollywood A-listers and power players, so the cracks are now spreading across Westminster’s thin ice.

But unfortunately, the release of floodwaters caused by a burst dam has the power to sweep away everything in its path – both those shoddy buildings on weak foundations which deserved to be condemned, but also many structurally strong houses which were up to code, but which the tidal wave refused to spare.

The media (who really ought to be a bit more introspective about the tawdry behaviour and abuse within their own ranks, as is already being uncovered in America) love a simple narrative, and presently even the most serious allegations of rape and sexual abuse by prominent political officials are being reported in the same breath and often under the same headline as relatively minor infractions of the kind which astonishingly brought down former Defence Secretary Sir Michael Fallon, forcing his resignation yesterday.

Naturally, the social justice warriors of Westminster see mandatory re-education as the obvious solution, and now want elected MPs to go through the same condescending “consent workshops” that the NUS likes to inflict on freshmen students.

Charlotte England of Left Foot Forward writes:

Far from accusing all men of being rapists, consent training aims to clarify what consent means and tackle pervasive myths that contribute to rape culture, which is defined as an environment in which prevailing social attitudes normalise or trivialise sexual assault.

According to Green Party deputy leader Amelia Womack there is little understanding in Westminster of the power dynamics at play between male MPs, senior political party figures and other staff like assistants and researchers. Teaching men what is and isn’t appropriate behaviour is therefore imperative.

No, it is not imperative. At this point, even the most sociopathic MP understands the dangerous ambiguity around consent, for reasons of self-preservation if nothing else. Those politicians who continue to step over the line in 2017 do so deliberately, either because they don’t care or simply have no impulse control. And all the consent training in the world won’t fix that. Meanwhile, perfectly decent and law-abiding people will feel ever-more surveilled and curtailed in their behaviour while too many of the real guilty parties continue just as before.

But then this is always the effect of corrosive identity politics – serious social problems and even crimes are too often drowned out because of the disproportionate reaction to lesser behaviour which does not even fall on the same spectrum. If you go to Defcon 1 over some clumsy and ill-advised flirtation at a Westminster Christmas party then you have nowhere left to go when serious allegations involving rape or abuse of power come into play. Each incident becomes just another indistinguishable piece in the “rape culture” jigsaw puzzle and it becomes that much harder to focus on the real victims and perpetrators.

The difficulty with the more minor allegations which are now emerging in Westminster politics and elsewhere is that the outrage at (and de facto punishment of) the alleged offender (public shaming, terminating of careers, ending of livelihoods) is more a reaction to the general trend or cumulative scandal than the individual sin.

If a town finds itself in the grip of a serious crime wave then public anger and demands for something to be done are quite understandable, but is it right for the same ire and punishment to come raining down on the one-time teenage petty shoplifter as befits the man who makes a career of kicking down front doors and making off with the family jewels? Surely not. But our justified anger at decades of genuine sexual harassment and abuses of power is threatening to bleed over into other realms – types of behaviour which range from inappropriate to pitiable – which could have grave implications for how we live and work together (and even court one another) in future.

Grazing a colleague’s knee while making an ambiguous comment over dinner isn’t great (and in fact becomes absolutely wrong when a professional power imbalance exists), but the reason that such low-level behaviour can now prompt the resignation of people such as former Michael Fallon is because of a wider, understandable revulsion at far more serious offences such as those allegedly committed by Harvey Weinstein and other prominent people. The delusional middle-aged, middle-ranking male politico who wrongly mistakes the professional attention of a female journalist for a romantic interest is to be slapped down and probably also pitied, absolutely. But do we really need to turn every such incident into the Dreyfus affair in terms of notoriety?

The pendulum has swung from legitimately bad people getting away with patterns of tawdry behaviour and abuse of power for decades while their victims suffered grievous harm toward fundamentally decent people now being at risk of having their lives destroyed over ambiguous, misinterpreted behaviour or even unfounded malicious allegations. If there was a middle ground anywhere here, it has certainly been skipped over in our reaction to this post-Weinstein torrent of accusations.

While we are right to be disgusted at the world of overt sexism, sexual harassment and abuse which is slowly, painfully being consigned to history, we also have a duty to consider what kind of world we want to create in its place. If we truly want to go down a road where every alleged victim is believed and punishment meted out without due process or any threshold for evidence then we will midwife a brave new world where any public career and reputation can be ruined by a single malicious or disputed allegation. This may soon prompt concerned individuals to hedge against the risk of being brought down by false charges, meaning that every single personal interaction must be witnessed, every woman or vulnerable man permanently chaperoned and everybody permanently surveilled for their own safety, perhaps in the same manner that many American police forces are now outfitting their officers with body cameras.

But this immediately raises privacy concerns. People were sufficiently unhappy at the potential privacy issues presented by Google glasses that this promising prototype product had to be discontinued before making it to mass market. But the kind of constant surveillance required to provide sufficient personal insurance against a formalised “believe the accuser” culture – where the concept of “innocent until proven guilty” is abandoned – makes Google glasses seem tame by comparison.

If we are to avoid going down this extreme road then we at least need to set clearer rules about workplace interactions, so as to remove the ambiguities which lead to the “grey area” where many disputed events currently fall. We will need draconian rules prohibiting any romantic or sexual relations with coworkers that might seem more appropriate to the military than office-based professional work environments. There will need to be a blanket ban on any such relations, with the penalty for any transgression being instant termination regardless of whether or not the the encounter or relationship in question is consensual. Human Resources departments of firms large and small will need to staff up in order to carry out the inquisitorial new role assigned to them. If your parents met while working together, they must become the last generation which ever does so.

And if this seems excessive them we must step back from the brink and think again about whether casually discarding the time-honoured principle of “innocent until proven guilty” is a step that we are willing to take, particularly given the grave ramifications and precedent that doing so may set. Do these new rules apply only to accusations where there is a power imbalance (such as in the workplace) or will we apply them to purely social interactions between equals, too? How do we define “equals”? Will there be any statute of limitations on historic allegations? Will there be any evidentiary standard whatsoever? How will this new reality dovetail with existing laws governing libel and defamation, or to one’s ability to bring civil suit against an accuser for loss of future career earnings?

We must also ask ourselves how much collateral damage we are willing to accept in our effort to make right past wrongs. There are many valid and totally understandable reasons why a victim of abuse or harassment twenty years ago may have kept quiet to this day, but it is also plainly the case that any form of proof in terms of DNA, CCTV footage or retained correspondence is much less likely to exist, in which case it becomes one person’s word against another’s. We then have to decide to what extent we are willing to atone for historical societal sins by lowering the evidentiary standard and always believing the victim when every further move in that direction increases the likelihood of present-day injustices.

Do two wrongs make a right? Or is there a point where we will have to admit that justice for some historical alleged incidents will simply never be possible? We cannot escape this choice. We may wish that it did not exist, and we may pretend that some mythical alternative exists, a solution where proof for past allegations can always be found, victims always believed and offenders always correctly identified and punished. No such magic solution exists; it is a chimera.

At present we are in danger from swinging from one extreme to another, from victims being outrageously shamed and silenced to being unquestioningly believed without even cursory verification; from no consequences for serial perpetrators to draconian summary justice regardless of guilt. The danger is particularly acute as we suffer under a weak government with the weakest of leaders, a prime minister with non-existent decision-making abilities, who can’t afford any more missteps and is therefore prone to making up policy on the stop to appease whoever happens to be shouting the loudest.

#BelieveTheVictim? There is a valid debate to be had here, with serious arguments on both sides – the “always believe” side putting the emphasis on compensating for a history of past injustices and the “proof, please” side placing its emphasis on the importance of traditional due process. Ultimately, some kind of fudged compromise is all but guaranteed, pleasing nobody even as it acknowledges a messy reality.

Personally, while I lean more towards the “proof, please” side I acknowledge that simply telling accusers that nothing can be done to pursue their historic complaints without documentary evidence is often untenable, and that the rights and presumption of innocence which should always accompany a private citizen do not always fully carry over when the accused is in elected office or otherwise occupies a position of public trust.

But my goodness, we ought to stop and think a little more carefully before attempting a quick fix to a month’s worth of disturbing headlines by overturning centuries of precedent.


UPDATE – 3 November:

For what it’s worth, I think Ayesha Hazarika does a good job of explaining the kind of non-draconian, common sense solutions which we should be looking at here, for the Spectator:

But the silver bullet is behaviour. You can have all the Human Resources and complaints systems you like, but until MPs, and senior staffers, understand that their basic behaviour to junior women and men has got to change then I’m afraid the needle will not move. And it’s not actually that difficult. I would hope most people could work it out without the need for a cringey manual but here’s a few helpful tips. When you’re the boss, don’t fondle, grope, cup or lunge at anyone and as a general rule don’t harass people for sex via the oh so clever ruse of late night drinks to ‘help them with their career’. And give yourself a reality check: they’re not inviting it and they’re really not into you. At all. Especially if you’re a 58-year-old man who’s seen better days and they’re someone thirty years your junior who either works for you, needs a job or an interview. Ask yourself this critical question: are you abusing your position to get in someone’s pants? And if all that fails, ask yourself how you would feel if you get caught.

Politicians love lording it over the rest of society about how we behave and how we should conduct ourselves in the workplace. It’s time they cleaned up their act – and it’s really not that hard.

Absolutely. A cultural change which ends this “come out with me for late night drinks to discuss your career (wink, wink)” practice should be encouraged, because it is where professional power imbalances exist that the worst serial offenders always lurk.


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Granting G4S And Serco The Power To Arrest Is Tory Madness

G4S HMP Oakwood

Granting private security firms the power to arrest people shows that this grasping, constitutionally illiterate Tory government does not understand what the state should and should not be outsourcing

The next step in the Tory Party’s slow suicide and abnegation of any remaining conservative principle: a leaked proposal to grant private security companies the power to arrest people, granting their employees the full suite of powers currently held by Civilian Enforcement Officers.

The Daily Mail reports on the latest thoughtless privatisation scheme to be cooked up by the government:

The proposals would allow, for the first time, staff from companies such as G4S to arrest members of the public for failing to pay fines imposed by the courts.

The plans would see HM Courts and Tribunals Service (HMCTS) privatising part of its compliance and enforcement operations in a deal worth £290million.

The measures were slipped out as a tender by the Ministry of Justice during the summer.

Under the proposals, the Government could transfer all services carried out by Civilian Enforcement Officers, who are civil servants employed by HMCTS, to the private sector.

This would include the arrest and detention of individuals who fail to pay off their debts and haul[ing] them to court.

The courts can already allow authorised agencies, including private firms, to send bailiffs to a person’s home to seize possessions to encourage them to pay debts.

But this would potentially be a sweeping expansion of the powers – covering so-called warrants of arrest, which are issued by JPs to compel an individual to attend court.

A separate justice-related proposal bubbled from the Left this week, published in the Daily Mirror, demanding the unification and centralisation all of the police forces in England, because that same creepy exercise in big government authoritarianism worked such wonders in Scotland under the SNP. But now the Tories have gone one better.

First re-opening the divisive fox hunting debate for no good reason on the eve of a general election, and now this. It’s like the Tories are actually trying to self-destruct by living up to every hysterical stereotype about conservatives ever levelled by the Left.

This is a Tory party that claims to be so concerned about fiscal responsibility that it is willing to outsource the arrest and detention of British citizens to poorly managed private companies with appalling records and an ability to screw up and commit fraud even under close oversight, all to save a paltry few million pounds, while shamefully failing to tackle the real drivers of the deficit such as welfare, healthcare and pensions.

Depriving somebody of their liberty – even only briefly, as a means to compel their attendance at court – is one of the most sacred and serious powers that we the people invest in the state. Arresting or imprisoning a citizen, depriving them of their liberty or (in extremis) compelling their draft into the armed forces are powers that could and should never be vested in private hands, outside direct control of local or national government which is directly accountable to the people. No exceptions, no excuses. This is the red line.

And it is a red line which David Lidington and the Ministry of Justice have just nonchalantly stepped on, whistling, hands in pockets, as though the Tories did not already have grave reputational issues and stand on the brink of giving power to hard Left Corbynite socialism.

The arrogance and incompetence that would motivate the Tories to even whisper this proposal are quite simply off the charts. It’s as though Theresa May’s government is effectively shouting to its critics “Fascist? Call us fascist, will ye? I’ll give ye some real fascism to worry about!”

If this proposal goes ahead, the Tory party and I are through. Not an extension of the current temporary breakup, but a permanent schism. I will work to get it cast from power and thrown into the electoral wilderness forever, and agitate for a new right-wing party take its place, one which is not stuffed full of grasping proto-fascists with pound signs in their eyes, one actually worthy of bearing the name “conservative”.


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Bernie Sanders Is Right To Seek To Ban Private Prisons

Bernie Sanders - Abolish Private Prisons

Free market and small government arguments are immaterial: privately run jails and prisons are morally repugnant and should be banned

As yet more evidence that the world is rapidly going insane, I find myself in agreement with Bernie Sanders on a matter of domestic policy.

The Washington Post reports:

Sen. Bernie Sanders (I-Vt.) will unveil a plan Thursday to ban privately run jails and prisons, which he says have a “perverse incentive” to increase the number of incarcerated people in the country.

Under the proposal by the Democratic presidential hopeful, the federal government would have three years to end its practice of using private companies to keep people behind bars. The ban would also apply to state and local governments, which have increasingly turned to private contractors in a bid to save money.

“It runs counter to the best interests of our country,” Sanders said in an interview Wednesday. “You should not be making a profit off of putting people in prison.”

Sanders’s “Justice Is Not For Sale Act,” which he plans to introduce as legislation in Congress, also includes several provisions intended to dramatically reduce the number of immigrants who are held in detention facilities while awaiting court hearings on their legal status.

Good. This blog is all for privatisation of state-owned industries and competitive free markets, but there is a limit to how far small government absolutism should go.

The most sacred and fundamental powers of any democratic government are the power to wage war and the power to imprison (or in America’s case, even execute) a citizen found guilty of committing a crime. Both matters are far too serious to be left to the private sector, especially for so tawdry a reason as cost reduction.

Just as Western democracies now rely on volunteer armies for defence and (generally – again, with some regrettable exceptions) eschew using paid mercenaries to do their dirty work, so the state, at whatever level of government is best applicable, should be directly responsible for the welfare and rehabilitation of offenders. Contracting the job out to private firms, ostensibly in order to save taxpayer money, is wrong and often counterproductive, producing the kind of perverse incentives correctly identified by Bernie Sanders. Besides which, the idea of private companies incarcerating citizens under government contract is morally repugnant, whether it is done in Britain, America or elsewhere.

There are plenty of things ripe for privatisation in America, including Amtrak (a giant taxpayer subsidy for wealthy elites living in the Acela corridor) and the United States Postal Service. In this day and age, there is less and less argument for the government having an active hand in transporting people, goods or items of correspondence. So by all means, let’s privatise what government has no business doing in the first place.

But when it comes to the most essential functions of government, some things ought never to have been handed over to the private sector in the first place. And the awesome power and responsibility which comes with incarcerating one’s fellow citizens is a case in point.


Corrections Corporation of America

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From The Annals of Bad Lawmaking

Sometimes they can’t help themselves. Politicians latch on to a word or a concept that is (often rightly) repugnant to almost everyone, and then, with great fanfare, roll out a new law supposedly desired to prevent said thing, or at least to impose tougher penalties on those people who do the Bad Thing.

He's had another idea.
He’s had another idea.

The Bad Thing in this case is training to be a terrorist (or undertaking “terrorism training” as the Guardian reports), the penalty for which is due to increase from a current maximum sentence of 14 years to a life sentence under the new proposals.

The Telegraph, who broke the story, note:

The maximum sentence for a range of terrorist offences, including weapons training, will be increased, under plans being drawn up by security officials.

Current laws allow such offenders to be jailed for 14 years. The new regime will allow judges to impose life terms.

Significantly, that would also mean extremists would be subject to additional monitoring when they are eventually released.

And as with most tinkerings to existing laws in Britain, this one is so riddled with generalisations, non sequiturs and loopholes that there is more daylight than content in the proposals. As we have also come to expect, we see the additional empowering of the police and security services to monitor and meddle in a person’s life for evermore, long after they have completed their punishment and served their time. Here are a few of the more obvious flaws, off the top of my head:

1. In the marginal case, how do you tell the difference between someone who has gone to another country and undertaken weapons training of some kind with no real intent to cause carnage back home in Britain or elsewhere, and one who has attended a bona fide “terrorism training camp”? The last time I checked, there was no formal accreditation of terrorist training institutions against which MI6 can cross-check, or formal evidence of graduation given to successful students. Certainly, we can all picture in our minds the images of masked men with guns and suicide vests running through obstacle courses, but the reality is probably somewhat less clear-cut. Who will be the final arbiter of these too-close-to-call decisions?

2. How will anyone accused of this crime ever receive a fair trial? If it is alleged by the prosecution that they have attended a terrorist training camp, it is highly likely that the evidence required to convict them will be of a secret nature, which if made public would jeopardise the foreign intelligence that Britain is collecting. Scenarios such as these tend to lead to secret trials without juries, where the life and liberty of the accused is decided by a solitary judge behind closed doors, with no public scrutiny.

3. Someone who has acquired skills which could – and only could – be used to harm the general population has yet to really commit any offence against British society or soil. Yes, the fact that a person has gone to a “dangerous” country and spent time in the company of other people holding “extremist” views may greatly increase the probability that they plan to turn knowledge into action (and so, perhaps, warrant greater monitoring of their actions by the security services), but until they actually make concrete plans to do so, arresting and imprisoning them for any length of time sits far too squarely in the category of punishing thought-crime for my liking.

4. It is entirely possible (as has been proven multiple times) to inflict massive damage and loss of life in a terrorist act without ever actually having left Britain to receive training elsewhere. It may seem remarkable that British laws and public policy are still being drafted in 2014 which do not account for the reality of the internet, but here we have just such a case. What is the real difference between a person downloading instructions to make and place a bomb from a source on the internet, and going to another country to receive that same tuition face-to-face? Why does the government seek to punish one more than the other? And how do we distinguish between someone who idly (or accidentally) downloads instructions for making a bomb with no malicious intent, and one who intends to put the knowledge to immediate use?

Why, indeed, does the government seek to do any of the things that these new measures will allow it to do?

Very little of it truly has to do with improving public safety. That is done (rightly or wrongly) mostly behind the scenes, in terms of adequately funding the security services and giving them sufficient remit to do their work. What this is about is not protecting the public, but rather being seen to be doing something. Chris Grayling, the Justice Secretary, is able to look busy and important, and taking firm action at just the time when many of what the Telegraph describes as “radicals jailed after the September 11, 2001, attacks” are approaching the end of their custodial sentences.

That is not to dismiss the real problem facing the government, which the Telegraph rightly lays out:

Security sources estimate that more than 100 British nationals have fought in Syria, backing rebel groups linked to al-Qaeda.

British nationals are also said to be involved in extremist activity in countries including Somalia and Yemen.

These are thorny problems with grave implications if they are not properly met. And in some cases, changes to the laws and sentencing guidelines may well be valid. But the current package being put forward by the government, as outlined so far in the press, appears to be fundamentally unserious. Why is the focus on criminalising the acquisition of the knowledge of terrorism rather than its practice, as manifested either by helping terrorist groups in other countries or conspiring to commit terrorism at home in Britain? These offences would not only be much easier to recognise and prove in court, but also take us away from the path toward thought-crime down which legislation such as that proposed inevitably leads us.

Last-minute lawmaking on the fly. Draconian new powers that are justified using unassailably valid examples, but which could equally be applied to much less clear-cut cases. Government desperate to be seen to be taking bold, decisive action rather than calmly contemplating the best course of action.

This is becoming very familiar.

Want To Change Religion? Get Permission From A Judge First

Royal Courts of Justice

Want to change religion? Then you’d better get permission from a judge first, if you happen to be under the age of eighteen and your parents can’t don’t give you their blessing.

That is apparently the law of the land in Britain today, or at least the precedent set by a recent ruling in which a a County Court judge ruled that a ten-year-old girl would be allowed to follow her wish to convert from Judaism to Christianity and be baptised, denying a request from the girl’s mother to grant an injunction forbidding the father from allowing her to proceed.

The Telegraph reports:

The court heard that the girl, who cannot be named for legal reasons, was born in late 2001 to Jewish parents and grandparents. But her mother and father divorced in 2010 and she, and her younger brother, now live for a week at a time with each under a shared parenting agreement.

Her father converted to Christianity after the breakdown of his marriage.

In November the girl’s mother, without telling anyone, applied for a court order forbidding the father from baptising or confirming her into the Christian faith. The judge heard evidence before deciding how to respond to the application.

I happen to think that the judge in this case ruled very wisely and sensitively on the case – you can read the full decision here. He also wrote and made public a letter to the girl in question, explaining his decision. I believe that he did a good job in a difficult situation.

But to my mind, this isn’t the type of matter that should ever come up for judicial review at all, or be subject to the whims of a random judge. Family law is a complicated area in which I have absolutely no expertise, but the crucial principle at hand in this case is liberty. There mere fact that the mother and father of this girl were arguing in court about the worthiness of an injunction preventing a person from changing their religion is highly inappropriate.

Religion and faith are matters of personal conviction and are private to that individual. No conceivable harm could befall this girl as a result of converting from one religion to another, and therefore this matter should be well beyond the remit of what a court injunction can be used for. The girl, and she alone, should be free to believe whatever she wants to believe, and to be received into the faith of her choosing in a manner consistent with their customary rites and practices. There is no welfare issue at stake for the child – indeed, the only conceivable harm that could occur would be to the hurt feelings of one or other parent.

In this case, the girl’s freedom of thought and speech were ultimately protected by an empathetic and restrained judge. However, a future court might rule differently, and issue an edict forbidding the person concerned from following their own will and their beliefs. In order to preserve freedom for the individual, and religious liberty, it must be made clear to the courts that they have no business arbitrating parental disputes such as this, or making religious choices for any British citizen.

Whether this is done through bespoke legislation, or my preferred route of a full-scale UK constitutional convention to once and for all settle the limits of crown, government and judicial power, rests – depressingly – in the hands of those who hold power today.

I would hope that they will see this case as a warning sign, and take meaningful action in defence of liberty.