Salt, happiness and Jocky Wilson

The magnificent Mr Puddlecote has posted with his usual perspicacity on the latest scare from the health Nazis (here). The topic is salt. It is a topic that has heated my urine for many years so I'd like to chip in. Since I've been quiet for a while it seems sensible to add another current topic, the Happiness Index, although, being the cunning old boy I am, I include it because it is directly relevant to salt.

First things first. Forget any notion that science can tell us a single thing about the consequences on our health of the ingestion of a given amount of salt. There is no universal maximum or minimum daily amount, there is no way of measuring the amount which is either needed or excessive for any individual, there is no accurate way of measuring how much is being ingested, there is no accurate way of measuring how much is being expelled from the body and there is no way of measuring whether a physical condition that might be caused by excessive salt consumption has in fact been caused by that. All they can ever do it seek to evaluate average needs - no doubt this (if done properly) is a difficult exercise and takes considerable knowledge and skill, but once it's been done it is of absolutely no use to anyone because there is no way of measuring whether any given person is average, below average or above average in their need for salt or in their susceptibility to harm from salt.

For decades it has been peddled that excessive salt consumption can cause high blood pressure and other medical nasties. That might or might not be true, I am sure I once came across a blog dedicated to exposing salt scares that challenged the hypothesis but I can't find it now. Let's assume it is true. We have to be very careful about exactly what we are assuming. Because we all need different amounts of salt in our diet for our bodies to perform efficiently, only consumption above the level we require can be excessive. That is not necessarily the same amount of salt all year round because we sweat more in summer (or in the presence of Joanna Lumley) and will secrete more salt than in winter (or in the presence of Harriet Harman), to maintain a working balance we must take more in summer (Lumley) than in winter (Harman) - unless some other factor interferes to require us to take more in winter. Some claim that we simply pass excessive salt when we dispose of used beverages and they might be correct but that doesn't mean that regular consumption of more than we need cannot have adverse consequences because harm could, in principle, result from that excess quantity being in the body prior to joining gallons of second-hand beer on the floor of the gentlemen's facility at the Dog and Duck.

And then, merely physical need tells only part of the story of human life. The human body is a machine. It takes in fuel and gives out waste products, just like a motor car. The difference between the human body and the motor car is that it is far more than a machine. It has feelings, senses and emotions that are essential parts of life and not things to be left to one side while we deal with the machine only. Food and drink are part of the feelings, senses and emotions aspect of life just as much as they are fuel for the machine. If old Auntie Enid likes a whole shaker of salt on her roast potatoes and would have a miserable Sunday lunch without it, how are we to assess the salt content in her diet? Excessive - because her body didn't need that much to function - or just enough because it gave her a happy time when otherwise she would have felt excluded from the family jollity going on around her?

When thinking of this subject my mind often goes to Jocky Wilson's lager. No, I'm not joking, the point is absolutely serious. Jocky Wilson was one of the great darts players from the late 1970s until the early 1990s. In order to play well he needed to be relaxed and, for him, that required lager. Quite a lot of lager. Once he reached a certain level of intoxication he was almost unbeatable, he had the necessary level of relaxation and concentration to allow him to play as well as anyone in the world. It wasn't something that could be measured. Some days it might be just a few pints, on other days it was measured in gallons but however much was required on the day he strove to continue his consumption in order to keep the level just right. As alcohol was burnt off it had to be replaced and failure to replace it would cause him to be unable to continue playing so well. Other players could perform well without a drink or with less drink but that was irrelevant he wasn't them and he wasn't playing for them. He needed a lot of booze in order to ply his trade at the highest imaginable level - did he drink too much? It depends what you mean by "too much". In each tournament he played his consumption was too little, the right amount or too much, depending on how it affected his throwing arm on the day. In the context of his long-term health it could well have been too much but any less and he would not have been World Champion twice and revered as one of the finest exponents the game has ever known. He is now entirely out of the public eye and is reputed to be living in poor circumstances at least in part because of his fondness for the sight of an empty barrel. One could isolate the booze and say he shouldn't have drunk so much, but that would ignore his achievements which would have been unobtainable without a liver quiverring quantity of drink.

When I was at primary school lunch sometimes included mashed swede. I absolutely hated the taste and I hate it still but the addition of enough salt would allow me to shovel it down and avoid the wrath of the scary dinner lady. Was that "excess" salt (and believe me, it took a lot of salt to mask the taste) bad for me or was it good for me because it allowed my little body to enjoy the benefits of mashed swede? Was the benefit of not being harried by a harridan outweighed by the taking of more salt than was good for my young blood pressure? There's no way of knowing, it cannot be measured.

Mr Puddlecote points out that the great Delia recommends using salt in the preparation of a number of ingredients of a Sunday Lunch. She is, of course, absolutely correct. Vegetables other than legumes, particularly root vegetables, boiled in unsalted water do not develop their best flavour because the temperature is not high enough whereas salted water boils at a higher temperature and that little difference in boiling point makes all the difference to flavour. We are all happier to have flavoursome food than bland food. If the trace of salt in vegetables prepared in this way has adverse health conseqeuences, how are they to be compared to the additional pleasure given by eating a tasty dinner rather than a less tasty dinner? It goes without saying that it cannot be measured. Even the amount of salt in vegetables prepared in that way cannot be measured because some will absorb more than others.

Our Prime Minister believes it wise to spend taxpayers' money on surveys of happiness. It goes without saying that it will be a complete waste of every penny involved for two reasons. Surveys can never measure anything accurately because they only give a snap-shot of opinion on the day the questions are asked. Not only can opinion change the next day but the questions have to be vague to avoid 90% of respondents saying either "not applicable" or "don't know". Secondly, and more importantly, you cannot measure happiness by reference to factors over which politicians have any control.

In relation to salt-consumption scares, try these two questions. "Are you happy that old Auntie Enid enjoyed her day out from her care home, The Coffin Dodgers' Lodge?" Of course the answer is yes. "Are you happy that old Auntie Enid had three times her maximum total daily allowance of salt on her roast potatoes?" The answer might well be "it doesn't matter at her age" but underlying that answer will be acknowledgment of the scare; the full answer would be "yes but she'll probably die before it kicks-in." How does that rate on the happiness meter? Ten out of ten for the first answer and maybe seven for the second. The second question is completely irrelevant to anything other than government statistics. All that matters is the first question because old Auntie Enid only has one life and if that involved an ounce of salt to make a meal just as she likes it she will smile her gummy grin until her final gasp. And the second question need never be asked.

What matters is the quality of life. It is an ephermeral thing, different for everyone at any given time and different for everyone from one moment to the next. Is a longer life more desireable than a second helping of pudding or a good shake of salt on Sunday roasties? That's up to the individual to decide. Time might prove their decision to be right or wrong or it might provide no answer. One thing that is certain is that their happiness will be increased by letting them decide for themselves.

The inevitable dictatorship of causes

Perhaps the biggest difference between conservatives (with a small "c") and socialists is that conservatives do not pursue a cause. They do not seek to impose anything on anyone, preferring to just leave people alone and trust them to live as they see best with a fall-back of penalties for causing harm to others. In contrast, socialists must of necessity take a fight to the people. They do not trust us to live responsibly because they have a vision of the perfect world and are compelled to mould us, by force if necessary, to comply with their vision.

One problem with the socialist approach is that the vision can never be complete. There are always new situations for which no blueprint exists and new opportunities to extend the existing plan into areas previously immune from interference. Most tellingly, when the stubborn little people refuse to comply with the vision it is necessary for new ways to be found to enforce compliance. In the more brutal regimes that means physical assaults and even state murder, in a relatively civilised country like the UK it takes a different form.

What should not be presumed is that socialist politicians bully and coerce for the sake of being unpleasant. Of course there will always be some who do, but they do not reflect the real theme of their cause. The real theme is that life for everyone can be improved with careful guidance by the machinery of the State. Once you believe that, especially if you believe it passionately, no bullying or coercion are involved there is only the perceived need to take whatever steps are necessary to open the eyes of the little people to the benefits of the ideal society.

To a socialist there is only one acceptable way for people to live, which is according to his current view of the ideal State. When he changes his mind about something the new ideal becomes mandatory. Dissent, debate and variance are inconsistent with the attainment of the ideal State, so means must be found to ensure compliance. The single most important factor is the need for the little people to believe that the path set by the State machine is correct. If they are persuaded that this is so, they will follow that path without rebellion. But how do you persuade them? Conventionally three methods are used.

First comes genuine persuasion using words. That will attract a certain number to the cause.

Secondly come rewards for those who toe the line. No adverse consequences follow from not being on board, but those who have adopted the cause get benefits; these days that includes jobs sitting on Quangos and career advancement by showing dedication to the pet project of the day whether it be "climate change" or "diversity". Some will sign-up because they want to receive those benefits.

The third method is both inevitable and sinister. It is punishments for those who dissent. The punishments need not be particularly painful because they are more about setting the atmosphere than about causing people pain. After all, the first purpose of the exercise is to persuade people to board the train to utopia, only secondarily is the punishment intended to coerce. The atmosphere they need to set is one of agreement that the State knows best. Without the people agreeing that the State knows best, socialism can only be maintained by violent repression.

It is inevitable that the line between persuasion and coercion is easily blurred when your mind it fixed on the result rather than the method of achieving it. "We must persuade people that we are right" rests on the presumption that "we are right". When you hold that attitude no one can be surprised that you will use every avenue you can, including unlimited amounts of taxpayers' money and the criminal law, to assert your correctness and, necessarily, the incorrectness of those who do not agree with you.

And that is where "causes" become so useful for socialists. Causes are all about enforcing a particular pet interest by force of law. If you believe passionately that something, anything, must be done the most effective way to satisfy your urge is to get the law behind you. So socialist governments love to adopt causes because they add to the weight of the State. The longer the list of "thou shalt nots" the more power the State has over the little people. In order to make this a palatable approach it is important to concentrate on causes that already have a degree of assent so that the dissenters are maginalised not only by their chosen activity becoming illegal but also by being a numerical minority. The State strengthens the message that it has the best judgment by putting into law the suppression of activities that a majority either actively disapprove of or, at least, do not like to engage in.

What is more, the State benefits from a double-whammy. The majority, unaffected by the new prohibition, sees the law as reflecting their way of life and the minority turn from being a minority acting within the law to a minority acting against the law. If they do indeed act against the law they might face prosecution. If all they do is argue for the prohibition to be removed they are faced with a fight against the majority. And the authority of the State is strengthened by the knowledge that the majority accepts the position it has taken, even though the majority might have been wholly unaffected by the minority activity when it took place.

In a country of 60 million people there are countless causes to be added to the statute books. Every time one is added a new minority faces the choice of complying with the law or risking prosecution. "Live and let live" does nothing to aid the socialist cause whereas banning one previously lawful activity after another emphasises the authority of the State. It is a slow, creeping process and the nature of the British is to obey the law. But what about those whose previously lawful activity is now a crime?

Their dissent might fade away because they believe that complying with the law is more important than their personal interest. Not everyone will fade away even if they do comply with the new law, they might still argue for repeal. Not everyone will comply with the new law. Not everyone who disapproved of or was indifferent to the newly banned activity will believe it should be prohibited. Every ban breeds dissent, some passive and some active.

More importantly every new ban is, almost by definition, more petty than the last. Outlawing murder and theft is not difficult. You would be hard pressed to find anyone who would argue against those prohibitions. The more marginal the harm done by a newly-banned activity the more likely it is that people will respond by asking why it was necessary for the law to step in at all. Sadly for the socialist, the correctness of the State in all things never has been and never will be accepted by human beings. They can pander to any number of single issue fanatics by passing prohibitionist legislation but still there will be dissent.

The more petty the ban, the greater the risk of it being defied in deed as well as in word. The State machine has only one course open to it once it has imposed a prohibition, namely to enforce the prohibition. In principle it could undo the ban, but that would be to admit that the State was in error, something that is anathema to the socialist brain. The only course it can follow is to impose greater and greater force against those who continue to dissent. But there is a problem because the more petty the ban the less the majority is likely to look on it with favour. "It doesn't affect me or people I know so I don't care" is overtaken by "I don't do it but my uncle and brother do, and they are decent people". Then questions are asked about the justification for earlier prohibitions. The socialist State has only one answer "we are right, it is for your own good, you must comply". That position is unsustainable in the long term. Sometimes the very long term. Eventually Ceausescu's Christmas Day arrives.

Luck prevents equality

It's not easy to know whether some people are lucky and some unlucky. I can point to examples of people I have met who seem always to land on their feet and others who get the rough end of the deal more than half the time. In fact I once met someone who had won both the jackpot and the second prize on the national lottery, albeit not on the same day. One might be inclined to think that person extraordinarily lucky. On the other hand an old friend of mine bought his first flat just before the massive property price crash of 1989-1992 and managed to lock himself into a fixed-rate mortgage just as variable rates started to plummet. One might be inclined to think him blighted.

If truth be told, these things are bound to happen some time so these people are statistical proof rather than statistical freaks. Good luck and bad luck happen to us all at different times of our lives and I am sure it is a matter of pure chance whether our overall score in the luck casino is positive or negative. That is not to say that you cannot affect your chance of good things happening. For example, working hard and being polite both bring rewards that are not received by the indolent and rude, but that is nothing to do with luck it is a matter of cause and effect. Luck is a very different thing. It is all about factors that are beyond your control.

I am sure I have been very lucky in my life. Three examples spring to mind.

When I was first called to the Bar I couldn't afford to go into pupillage (the year-long apprenticeship you have to undertake in order to be able to practice as a barrister) because it was unpaid in those days and I had no money. I was taking a medicinal beverage one evening and overheard someone say that a particular private law college regularly recruited new lecturers at that time of year. I applied and was given a chance to prove myself. Had I not been at that particular watering hole on that particular evening and had I not been within earshot of that particular conversation, it doubt that I would have even thought of applying for the job.

After three years teaching full-time I went into pupillage and, after serving my year, applied for a place at the same set of chambers. I had one serious competitor whose support was much diminished by his strongest supporter dying just a few weeks before the decision was made whether he or I should become the junior practitioner. Had that man not died I suppose I might have been chosen anyway but my passage was eased by an event entirely outside my control.

In 1993 the London property market was at rock bottom. Two of my best friends owned the property that is now FatBigot Towers and needed something larger. They found the perfect place not far away so I helped them by buying their old shack. Since then the market has shot up to a level that is, to my mind, utterly absurd. Nonetheless, by being in the right place at the right time I have a capital asset with a current market value far above what it would otherwise be. And, to add a further twist, the government's desperate desire to chase the homeowner vote means policies have been targeted at maintaining artificially high prices. Were I to scale-down now, as I might, I would make a nice profit. Not so had I bought, say, twenty years earlier and faced the 1989 recession rather than the 2009 recession.

These three examples of personal good fortune highlight three different aspects of luck. The first was entirely a matter of being in the right place at the right time - the opportunity I enjoyed would simply never have appeared otherwise. The second was a matter of enjoying an advantage due to an external event that disadvantaged someone else. The third is a matter of government policy happening to benefit someone in my position whilst causing problems for others (particularly younger people who cannot afford to buy their own home). The common theme is that the events from which I benefited were outside my control.

One of the most serious flaws in egalitarian political theories is that they can only work if they negate luck. How can they do that? One or two obvious steps can be taken such as abolishing the national lottery, the football pools and all other forms of gaming and gambling. It doesn't take a genius to work out that betting will just go underground if that were done. But that covers only one aspect of the effect of luck, namely businesses that trade on people seeking luck.

Nothing can be done to prevent someone being in the right place at the right time such that he enjoys a benefit that others might be better qualified for but never hear about. Nothing can be done to combat the good fortune of a competitor suffering a blow through an external event that is no fault of his.

Everything can be done about government policies that provide a benefit to some but not others, however nothing will be done about them for so long as there are votes in that benefit. Current policies to maintain house prices at artificially high levels suit me to a tee despite being implemented without the intention to deliver any benefit to me at all. Maintaining house prices is not aimed at me, it is aimed at the potential Labour voter who bought at the height of the market and will be very angry and disillusioned to find himself with a home worth less than the amount he borrowed to buy it. Nonetheless it is not the man who borrowed £125,000 to buy a house now valued at £125,000 who gains, it is a crusty old fart like me who bought many years before, saw the nominal value of his home rocket because of the false credit boom and now sits on lots of equity because the government is scared of losing the vote of the other chap.

Policies aimed at combatting luck will always have consequences. They might prevent the chap with the £125,000 house suffering a capital loss today. That's fair enough, I wish him no ill-will. But they will maintain my windfall profit and will make no difference to the youngsters for whom a £125,000 house is a fanciful dream. Would it be fairer for Mr £125,000 to face a 25% fall in capital value while he has 20 years to pay it off or hope for an up-turn, me to face a 25% fall in capital value and the youngsters have a sporting chance to own their own home? I don't know. Maybe it would, maybe it wouldn't, I'm inclined to think it would.

Very much the same point applies to other policy areas. Combatting discrimination on the grounds of pigmentation or gender is one thing. That seeks to achieve equality of opportunity. True equality of opportunity can never be achieved because there will always be someone who overhears a job opportunity while someone better qualified does not. And there will always be someone who cannot put forward their most important reference because the referee fell under a number 23 bus just before putting pen to paper. What can be done is to level the playing field in other ways.

When you go one step further and seek to achieve equality of outcome you are doomed to failure. Not only can it never happen because different people have different abilities, but you simply cannot legislate against good or bad luck. Some idealists think you can. They think decisions should be taken by an elite group of the super-wise or be delegated to a body charged with applying the criteria laid down by the super-wise. The problem? It's obvious, those who propose the plan appoint themselves to be the super-wise - it can't be anyone else because it was their idea. They might start out with the very best of intentions but they do not and cannot have minds unimpeded by personal preferences and consciences unable too resist temptations wrapped in flattery.

Far better to face reality and accept that some people win the lottery and some don't, some make good bargains and some don't, some are in the right place at the right time and some never are. That's life.

A true charity

Last week we received a sad reminder of what real charities do. The former footballer and football manager Sir Bobby Robson died at the age of 76 after having suffered from one type of cancer or another for more than fifteen years. During that period he set up the Sir Bobby Robson Foundation to fund research related to cancer and, in particular, to assist in clinical trials of new anti-cancer drugs and treatments.

The Sir Bobby Robson Foundation is funded by private and corporate donations, using Sir Bobby's name and reputation and those of many other figures from the world of football to persuade people and companies to part with their cash. This type of charity is the very epitome of what a charity should be. The work it funds could be funded out of taxation if someone in government chose to do so, as it is Sir Bobby decided he wanted to see more spent in the field so he went about raising money specifically for that purpose. Could other aspects of cancer research make a case for additional funding? Could other areas of medicine make a case? Of course the answer to both questions is that they could, but that is nothing to do with it because it was Sir Bobby's decision what should happen to the money raised in his name.

It is reasonable to infer that those who have given to this charity would not have volunteered to pay additional tax in the same amount. Even if they had paid voluntary additional tax they would have had no say over where it went once it was in the hands of the Treasury. Instead they chose to delve into their post-tax income to fund a specific area of work regardless of whether the government considers it of sufficient priority to warrant additional money.

That is at the heart of true charities. They are about individual priorities rather than priorities laid down from on high. This reflects the position that has been taken consistently through time, until very recently. The law has not asked the question "is this organisation a charity"? Rather it has asked "is the purpose for which this organisation exists a charitable purpose"? The distinction is extremely important because it places the emphasis on the general purpose for which an organisation exists not on the specifics of how that organisation seeks to attain that purpose. The reason for this is that different people have different views of the benefit of certain types of activity which are considered by law to be charitable. Because charitable donation is an individual thing, reflecting the values of individual donors, the law does not claim to have better judgment than the individuals who make voluntary donations. Provided the general purpose of the donee falls within the established categories of charitable purposes, the wishes of individual donors are respected.

For example, preventing suffering to animals is a charitable purpose, both under the old law and under the Charities Act 2006. Those of us with the good sense to despise cats can recognise that others take a different view and an organisation dedicated to preventing suffering to cats is, on the face of it, fulfilling a charitable purpose. Of course there are certain formal requirements to ensure that such an organisation is indeed concerned with its stated charitable purpose before it can be registered as a charity, but all of that is secondary; if its stated purpose is not charitable it doesn't get off the starting blocks.

As with so many things, the current government considers charitable status to be a political matter and has placed one of its most loyal Labour Party puppets in charge of the Charity Commission so that only those organisations that further Labour Party policy will be afforded the tax and other privileges that go with being a registered charity. Recently they decided that education is only a charitable purpose if it accords with the Labour Party's view of what schools should do. This was never an issue before because government recognised that all educational facilities are beneficial to some children and that was sufficient in itself for bona fide educational establishments to be afforded charitable status.

The danger with this new approach (which is almost certainly unlawful) is that it introduces narrow political considerations into a field which, for more than four hundred years, has stood outside factional politics and has respected the values and judgments of the little people whether or not they accorded with the views of the government of the day. Part of the process of politicising charities has been to refer to them as "the third sector", the other two being government and private business. Instead of charities being numerous separate organisations dedicated to specific charitable purposes they are lumped together and even have their own Minister of State. Once they have been classified in this way the government can seek to justify ever greater regulation and control, citing the amount of money charitable organisations administer as justification for any amount of interference. Once that is accomplished it is inevitable that the "third sector" is treated as something for government to control in ever increasing detail; in effect making it a tool of government policy rather than a diverse collection of individual organisations each with its own priorities, procedures and aims.

Where does the Sir Bobby Robson Foundation stand in this brave new order? At the moment it can operate as Sir Bobby wished it to - adding research facilities which did not otherwise exist and concentrating its work in the north east of England. But for how long? When will it be required to merge its work with other cancer research conducted within the NHS? When will it be required to limit its research into only those matters government considers a priority? Who knows, but I'm not holding my breath.

Others write about the misuse of charitable status by overtly political campaigns, details of many of which can be found at fakecharities.org. That is bad enough. To subvert the very essence of charitable work by seeking to impose value judgments based on political considerations over and above the values and judgments of individual donors is to deny the very basis of charity.

Health and education, think fruit and veg

All enterprises operate according to the pressures they face. If you have a market stall selling fruit and veg you have to buy produce and sell it for a profit or you pack up and find something else to do. The pressures on such a business are almost all about profit. What are the overheads? How much does stock cost? How must wastage is involved? At what price can the stock be sold? Wastage involves a number of factors some of which are imposed by law. If you sell produce of unsatisfactory quality your customer can claim redress and your reputation might suffer. If you sell produce that is unfit for human consumption you might face prosecution. The law imposes a quality threshold and it dictates the minimum you should pay any staff you employ, but apart from that everything is about making a margin between buying price and selling price. The position is essentially the same for every business in the private sector. There are certain legal constraints on what you can do but apart from that you either create a sufficient profit to make it worthwhile or you close.

Privately-funded education thrived for generations without government targets and league tables. Not all schools in the private sector survived. Those who couldn't make the grade had to close and others arose in their place where there was perceived to be unfulfilled demand that could be met at an affordable price. So also with privately-funded hospitals. If they were not delivering a service people were prepared to pay for they would go to the wall.

One freedom the private sector has is to reject potential customers who cannot afford the fees or who would cause trouble. That does not apply in the public sector for so long as there is a legal right to medical treatment and a legal obligation on parents to send their children to school. But leaving these special factors to one side there is a particular pressure on state schools and medical services that the private sector does not have, and that is political interference.

If the government is running schools and hospitals it knows that problems can cost votes, so it feels the need to be seen to be acting to anticipate difficulties that might arise and correct those that have arisen. This is why we have countless initiatives being forced on teachers and medical staff, often before the previous initiative in the same area has taken full effect. The emphasis is on what's good for the politicians rather than on delivering the best possible service at ground level. And with every change comes a stream of paper going through numerous layers of bureaucracy, it flows down from the top and then another stream of paper heads in the opposite direction in order to report back on how the initiative has operated.

Contrast this to the position in the private sector in which the overriding need is to keep administrative costs to a minimum so that the best possible service can be provided for the lowest possible price. Of course they have quality controls but these are the responsibility of the hospital general manager and the head teacher who knows that failure means the possible loss of his job and collapse of the whole business.

A further contrast is that there is no pressure for uniformity in the private sector. To my mind this is one of the most costly, damaging and misguided aspects of state provision. There is no more a single correct way to provide medical care or to teach than there is a single correct way to bowl a cricket ball or butter a slice of bread. Seeking uniformity of practice stifles the sort of initiative that leads to improved practices. Seeking uniformity of outcome is simply absurd. There is no logical basis for saying that, for example, lung cancer recovery rates should be roughly the same all over the country or that resources in every hospital should be allocated so as to ensure that no patient has to wait longer than an arbitrary target time before being seen by a consultant. The former ignores inevitable regional differences in lifestyle and the latter is both administratively expensive and hugely wasteful as other work is put on ice in order to meet the target.

What is often overlooked when state provision of services is discussed is that the political pressure to fiddle with everything is both inevitable and entirely reasonable. No government can afford to sit back and say "we are not seeking to improve things" without risking its political future. Part of the reason for this is an apparently widespread belief that the government can effect improvements. I have grave doubts about this but then it really depends on how you define improvement. Can they change things to create an impression that an identified problem has been alleviated in the short-term? Yes, of course they can. But at what cost to other aspects of the service? Take a few million out of the budget to pay for a new gimmick and you might buy a good headline but that money has to be taken from another part of the system; there is no way of knowing whether the perceived solution to one problem is a price worth paying unless you can measure and compare the detriment suffered elsewhere.

I do not see how political interference can be avoided for so long as the government has direct responsibility for running things. This applies not just to schools and hospitals but to every other service it provides, but it is seen most keenly in the electoral battleground of the three Rs - reading writing and rheumatism. Remove direct political control and you remove the massively expensive need (for, in reality, it is a need) to fiddle with the system and monitor every aspect of it from on high.

Are health and education too important to be left to local decision-making by individual schools and hospitals? It is often asserted that they are, but I cannot see them as more important than providing food. Yet no one seems to be suggesting that Tesco should be nationalised because making sure we have affordable food is too important to be left to the private sector. And who would trust the government to run supermarkets? Stand for election on a platform of establishing the National Grocery Service and see where it gets you. Education and medical services are no more natural monopolies than are the sale of food and drink. Of course it is unrealistic to seek to run so many competing hospitals that there is not enough custom to allow any of them to receive the income it needs, but the same can be said of theatres, professional football clubs, hairdressers, solicitors, accountants, plumbers, architects and every other service business.

The best services are those providing good quality for an affordable price. Quality is maintained in the private sector by the need to be good in order to attract custom. The customer is a far better judge of quality than a government minister or any number of civil servants. Of course there are lapses in the private sector and failure to maintain proper quality can cause great harm before the customer base learns about it and votes with its wallet, yet state control does not prevent mistakes being made. Indeed we hear a lot about "superbug" infections and expensive lawsuits over negligent medical practice in the state-run system but few if any such stories about privately-funded medicine.

Bureaucracy is kept to a minimum in the private sector by the need to control costs in order to be affordable. Quality does not require bureaucracy but political control does, political control requires vast bureaucracy. And that costs a lot of money. To my mind, it is wasted money because there is no need for the state to run these services. That money could be used better in other ways and the services themselves will be subjected to far more telling and relevant quality controls if they are localised. Parents know if their children's state school is providing a poor service but can do nothing about it at present. Patients and their families know when a state hospital is not clean or is not providing a reasonable level of care but can do nothing about it at present. The inability of the customers to affect the service they pay for with their taxes tells us all we really need to know about the central failure of state services. When have you ever heard of a BUPA hospital not being clean or not keeping dependent patients clean and properly fed? When have you ever heard of a fee-charging school having no one the parents can turn to when their child reports on the inadequacy of Mr Quelch's pedagogic abilities? Maybe you have heard of such things, I know I haven't, yet they are the daily fare of reports about state services.

The whole thing is upside-down at present. Demand for private healthcare and private education has never been higher. How can that be if state control is a workable and effective system? Morale in both the HNS and state education is said to be at a low ebb. How can that be if state control is a workable and effective system? Politicians must be removed from day-to-day involvement in both fields except in two respects. For most people both education and healthcare are only affordable if paid for out of taxation; just as replacing their car if it is stolen is only affordable if paid for out of insurance premiums. Government must still fund the services but it must do so by passing the money directly to the most local possible level and trusting those who run schools and hospitals to use their allotted funds to best advantage. The other part government has to play is, in truth, a responsibility for Parliament rather than government. It is to set the legal framework within which services must be provided. Just as it sets the legal framework for a fruit and veg stallholder. Except in these two respects, politicians should leave things alone because they do far more harm than good.

This, That and The Other: a recipe for cutting state spending

We are seeing some very interesting suggestions about how government spending can be reduced but far too many of them fail to address what I consider to be the central point. The position appears to be that three main factors must be catered for. First there are substantial additional costs to the Exchequer caused by increased benefit payments to those who lose their jobs. Secondly, the money the government has borrowed, is borrowing now and intends to borrow over the next few years must be repaid with interest. And, thirdly, tax revenues are being squeezed by reduced payments in income and corporation taxes as well as Stamp Duty. The other day we read that Treasury officials are preparing briefing papers in which reductions of up to 20% in government spending will be examined. The current government is slowly abandoning its absurd suggestion that spending can be maintained or even expanded beyond current, unaffordable, levels and the opposition are trying to find ways of cutting up to 10% from departmental budgets other than health, education and (I know not why) overseas aid.

This week appears to be Quango week, with both main parties suggesting how they will reduce the cost of committees that undertake tasks delegated by government. So far the approach adopted appears to have been to find cheaper ways of doing what Quangoes do now. There is the same chance of this delivering serious savings as I have of becoming the next Chief Rabbi, and I'd fail the medical. In the next few weeks and months we can expect the debate to move on to other administrative issues with all eyes being focussed on finding better ways to procure paperclips and increasing staff contributions to the tea, coffee and biscuit fund from 25p a day to 27p.

There is no escaping the fact that, if a job is to be done, it must be paid for. Anyone brave enough to take on the public sector unions might try to reduce costs by imposing the sort of wages freezes / wage cuts that many in the private sector must endure if their job is to have any long-term prospect of survival. Such measures could undoubtedly save a nice chunk of cash but it will be a drop in the bucket of overall expenditure. The size of the problem needs something far more radical. The real question is not how government can undertake its present tasks more cheaply, it is whether the country can afford to have the government undertaking all its present tasks. I think there is an easy way to answer this question, which is to see what the current government considered affordable in previous years.

At every budget since Gordon Brown departed from the previous government's spending targets, he announced that things were going jolly well and the country could now afford to spend money on things it could not afford before. Previously it could not afford an extra £X million for This, £Y million for That and £Z million for The Other. Because, and only because, the Treasury was receiving more cash could these sums be spent. Prior to receipt of the additional tax revenues This, That and The Other were not essential they were optional extras. For so long as the money was there (or, to be more exact, appeared to be there) This, That and The Other were affordable luxuries, now that the money isn't there they are non-affordable luxuries. All we have to do is go back through past budgets to see the items Gordon Brown himself identified as being newly affordable. Had they been essential all along they would have been paid for all along and other matters would not have been funded, as it is they were known not to be essential. They remain non-essential today.

It is not enough to look at budgets alone because they don't define exhaustively what government does, they concentrate on how much will be allocated to each area. It is also necessary to ask whether tasks undertaken by government now (a great many of which were not undertaken ten, twenty or fifty years ago) need to be undertaken at all. My hobby horse in this regard is the army of people employed to tell us what not to eat, drink and smoke but there are many more. Why are taxpayers subsidising the cost of staging ballets, playing music to paying audiences and making motion pictures? Why are they paying artists to ply their trade? Why does the government contribute to charities? Why does the government pay for expensive television advertisements for its policies? Why is the government involved in domestic marketing of milk, meat and potatoes? Why is the government spending our money subsidising trade associations rather than leaving it to those who seek to make a profit from trading in a particular product to pay for their own "professional" body? The list can go on and on.

Would ballet disappear from the UK in the absence of taxpayer subsidy? You can bet your pointe shoes it wouldn't. It would go out and find additional sponsors like any other branch of entertainment. Maybe fewer ballets would be staged, maybe more, no one knows, but the number staged would be the number that can be afforded without Mr & Mrs Ordinary who struggle to fund their weekly evening in the pub having to pay for them.

These are all activities which cost not just the money they hand out to third parties but also the on-going expense of the bureaucratic infrastructure necessary to decide who should be the lucky recipients. Inevitably there are also costs involved in following-up to see how the money has been spent. One consequence of deciding that all of these areas of expenditure, and many more, are unaffordable luxuries is that the Quangoes involved will go; but if we just look at the Quango without also addressing the involvement of government in the field at all we can never achieve more than a gentle trim of costs at the edges.

Some Quangoes are capable of being beneficial, such as those that advise on how to address special problems like the current spread of swine flu and those that advise on prospective changes in the civil or criminal law. In relation to these there is one very obvious way to reduce the cost; albeit one that is mere trimming. I have never understood why their members are paid out of taxes to attend meetings. Membership of an ostensibly authoritative national advisory body is a feather in the cap of every person invited to form the panel. They can (and often do) use their membership to further their own careers and/or to secure private-sector consultancy positions. I doubt that many, if any, of them would decline membership if fees for attending were discontinued, not least because the world of academe is highly competitive and Professor Previously-Snubbed would readily step in to fill the breach when Professor Superannuated throws a hissy fit. Cover their out of pocket expenses (receipts required for every penny please), bung them an OBE after five years' service, a CBE for a decade, a chance to kneel at Buckingham Palace in return for chairing the thing for two or more years and Robert is your parent's sibling. It would also reintroduce the concept of public service to membership of these bodies. If no one is prepared to serve without being paid a fee the response should be to ask why, not to offer money. The answer will, I suspect, be that membership carries no prestige because the committee is pointless; all the proof you need that it should simply be scrapped.

On the more general point, reducing the scope of governmental activity will require politicians to give-up powers they currently have. This will require a public mood for getting government out of various aspects of our lives. With any luck the combination of the increasingly unacceptable surveillance state, excessive pointless nannying and the need to cut costs severely will provide that atmosphere. Oh well, you can't stop a fat boy dreaming.

Licensed to fill in forms

The recent announcement that teachers are to be required to be officially licensed seems to me to be yet another initiative which creates more problems than it could ever solve. On this week's Question Time simple Harriet Harman asserted that doctors and lawyers have had a system of continuing professional development (CPD) for years and that the purpose of this initiative is to ensure the standard of teachers is universally high.

I can't talk of doctors, but I certainly can say something about lawyers. It is important to start from the correct position. All lawyers are either self-employed free-lancers or they are employed by a firm or company. If free-lancers are no good they will get little if any work. If employed lawyers are no good they will be sacked. In both fields there will be exceptions - some incompetent free-lancers will get referrals from chums and some hopeless employed lawyers will remain in post; but as a general rule lawyers are like anyone else, if you're no good you need to find another job or a lower level of the same job.

In the real world there are relatively few qualified lawyers who cannot find some position to which they are suited. Plenty of administrative jobs within solicitors' firms, business and the Court Service require a little legal knowledge and are filled very well by those who could never make a go of practice as a solicitor or barrister. And those in practice find their own level over time. Some deal perfectly competently with small cases but struggle with the juicy stuff so they stick to what they can do, do it decently and earn a living. Those who take a position requiring particular skills cannot expect to last long if they lack those skills. After all, that is what happens in business all the time. Someone appears to be competent, is given a job, turns out not to be up to it and is either offered something more suitable or off-loaded before they have been employed long enough to qualify for statutory redundancy pay.

Whether they are comfortable in their current position or struggling, all but the dangerously negligent do their best to keep up to date with recent developments in the law and the procedural rules of the courts. In fact I can take that further, you simply cannot give competent advice without researching the law to see if anything relevant to the case you are working on has changed since you last dealt with that field of law. Practitioners do not keep up to date for fear of professional disciplinary proceedings, they do so because they want to provide a proper service.

Continuing professional education has almost nothing to do with competence in your everyday work. At the time I retired I had to undertake twelve hours of CPD each year in order to get my practicing certificate for the following year. Numerous companies provide lectures, seminars, courses and DVDs through which it is possible to clock-up the necessary hours. It is a requirement to gather the prescribed number of "points" in fields connected to your main areas of work but there is no requirement to do so at any particular time provided you do it by the 31st of December. It was my practice to use the period between Christmas and New Year to watch some DVDs of lectures in areas I found interesting. I won't deny that I learned something from each presentation but I will deny that it made any difference to how I did my work because I had to do individual research for each case even if the subject had been covered by one of the DVDs. A judge asking "has there been any new law on this recently Mr Bigot?" would not be satisfied with the answer "oh yes, My Lord, and I have a very interesting DVD here in which someone talks about it".

I doubt that the introduction of CPD for lawyers has had any significant benefit at all. The extremely good are still extremely good, the good are still good, the competent are still competent and the duffers are still duffers. Frankly, if you don't check for developments in the law each time you give advice you are too dangerous to be let out in public and you are unlikely to be any less dangerous because you attended a half-day seminar six months earlier. It's all a box-ticking exercise, there is no substance to it. Whether you are able to make a living depends on whether you have clients or an employer willing to pay you, not on being able to satisfy a pen-pusher that you have garnered enough "points" to be allowed through for another year.

I fail to see how five-yearly licences for teachers will make much difference to anything. They could provide a way for schools to sack the incompetent, but in such a highly-unionised and state-funded field many a headteacher and board of governors would not want the hassle. If they cannot or do not sack the incompetent now why should it be any different later? The same test will apply and the same obstructions will be in place. Indeed, it could make it even worse because the grant of a licence will, I suspect, make someone unsackable for five years in the absence of gross misconduct. I have no reason to believe it will be anything other than another box-ticking exercise with a vast army of assessors and inspectors being employed to pore over the forms. And what will the system provide for those rare cases when the headteacher says "sorry, Mr Quelch is past it, I don't recommend renewal of his licence"? Being a government scheme I can imagine a body being created to hear appeals which will be a rich fighting ground for the unions.

It shows every sign of being a bureaucrat's delight.

And when will teachers be required to undertake any CPD courses that might be included in this scheme? Let me guess. At the moment children get a day-off from time to time for teachers' "study days", something unheard of just twenty years ago. They won't be giving those up, their unions won't let them. Maybe they will undertake their CPD hours during their ten or more weeks of annual leave. I'm sorry, I have just read that sentence, how foolish of me to write something so fanciful.

A lesson for the government

An interesting proposal has been made by the Conservative Party to release primary schools from central and local governmental control. It is one of those truly inspired policies that comes along from time to time. What makes it so interesting is its acknowledges that teachers, headteachers and school governors might actually know better than politicians what is best for the pupils they have to educate. I have never understood where politicians get the magical powers that make them all-knowing and all-wise, this policy seems to accept that there are no such magical powers.

The proposal links two themes dear to my heart. One is that services paid for out of taxes do not have to be provided from the centre. The second is that government ministers cannot possibly know how best to deliver any service at ground level.

I am perpetually intrigued by the very concept of central government directing the provision of anything to the public across the whole country. Take food as a most obvious example. We all need to shop for food every week or so. Making food available at affordable prices is an essential service, arguably no service is more essential. Yet we don't hear many calling for the production and supply of food to be nationalised and run by the government. The point can be taken further. Is there anyone who would argue that the government, through a National Food Service, could provide the range and quality of food provided by the existing supermarket chains? It's completely untenable, utterly laughable. Of course the cost of setting up a scheme would be prohibitive but it is not that that makes it untenable, it is the idea that centralised direction of a monopoly provider could even begin to approach the efficiency and flexibility of Tesco, Sainsburys, Morrisons, Waitrose, Lidl and the rest. So why should it be that the provision of good quality education requires direct management from Whitehall?

I read various figures for the average annual cost of school education ranging from £6,000 per pupil to about £9,000. The actual figure really doesn't matter very much, what does matter is delivering an appropriate education for every child. This requires schools to be able to cater to a wide range of abilities and to be flexible enough to vary their approach year-by-year as the new intake varies in ability. Only those at the metaphorical coalface can do this. They can be, and are, told by government that a certain level of test must be passed by a certain percentage of pupils at a certain age but that doesn't make it happen. Nor does it make it possible where the pupils of the relevant age group do not have the ability to pass the prescribed test in sufficient numbers.

To my mind the biggest problem with government-directed education is that doing the best for the pupils comes second to doing the best for the government's chances of reelection. Every year we hear ludicrous claims being made about increased performance when what is measured is the ability of schools to squeeze pupils through arbitrary tests. The government boasts "look how well we are doing" when they are doing nothing other than forcing schools to follow a particular path that will result in statistics the government hopes to use for its political advantage. Indeed, I find the very concept of government claiming it has achieved anything in education to be deeply offensive. Teachers and parents combine to elicit the best from children, government ministers add nothing of value. Getting government out of schools will be a good start, it will allow teachers to educate in a manner appropriate to their little charges rather than in a manner appropriate to the opinion polls.

That is not to say that there is no legitimate role for government in school education. In fact it has two extremely important roles. The first is to fund schools from taxation. There is no other way of paying for universal school education than through taxes. The second is to supervise standards. This second point is where, in my opinion, they have got it completely wrong. Let me explain why.

I'll go back to food to explain the point, because I am a fat boy and I like food. The supermarket chains I mentioned above, and all other sellers of food, could try to foist unfit meat and fish on their customers. They would probably get away with it most times because any illness suffered is as likely to be attributed to the cook as to the ingredients. They cannot and do not do so because the law requires certain standards to be met. Those standards are imposed by government through laws passed in Parliament. They are basic quality standards that set the culture for the industry. Supermarkets know that any breach of the quality standards could damage their business through adverse publicity far more than any fine imposed by a court could ever do. But without a legal standard setting the benchmark for adverse publicity it is impossible to know whether they would keep the quality of their products as high as it is. And the same principle extends across the whole range of what they sell, the law requires a minimum standard to be met and that pervades the very culture of retail food sales.

Schools don't sell products in the way supermarkets do, they provide a service, but that is a distinction without a difference. The provision of services is subject to legal quality controls just like the sale of goods. Failure to maintain a satisfactory standard of service leaves you open to legal action by your customers and to damaging adverse publicity. I have never heard of any such claim being made against an independent school. Perhaps such claims could have been made but instead the parents chose to take their child out of the school and send him or her elsewhere rather than wasting time reopening old wounds through the courts. The role of government is to keep the law under review and to propose changes to Parliament if a deficiency is found. In that way, and that way only, does government have a legitimate supervisory role over the quality of education provided in schools. With parents as direct customers and schools competing to attract their money normal commercial pressures will operate to keep standards as high as can be afforded, just as happens in the private education sector.

Not only does government have no magical powers to deliver good quality education but education itself is not a magical business, it is just another service. It is an important one but so is selling food. What we know for certain is that central direction and interference have not resulted in universally high standards in state schools. The system has had long enough to prove itself and it has been found wanting. The Conservative's idea is a radical change from the status quo. The government says it would be expensive to implement, I doubt that very much because it will (or should) involve the removal of vast amounts of bureaucracy through which current meddling is effected every year. The unions are against it lock stock and barrel. No higher praise can ever be bestowed on a new policy.

Perhaps the most important aspect of this proposal is that it marks a shift of primary responsibility for education from government to parents, thereby putting it firmly where it should be. Education will then be funded from the centre but run by the schools themselves. There lies the heart of the matter ... state-funded. State-funded does not need to mean state-run. We know that from the simple fact that some children are funded by the state to attend independent schools. We know it also from state funding of medical procedures at private hospitals when NHS hospitals cannot provide surgery without undue delay. We know it again from state funding of legal advice and representation. The quality of the service is determined by the people providing the service not by the source of funding. And the quality of the service they provide is driven by the need to keep the quality high or lose business to a competitor. It is always possible that a particular school will fail miserably to provide a satisfactory standard of education for its pupils ... or is it? Does that happen in the private sector? I don't know the answer to that question but I do know what will happen in that situation, the school will have to change its ways pretty sharpish or it will have no pupils.

Trust local judgment

One of the most useful pieces of advice I was given at the start of my career was never to assume I knew more than my opponent. It was not an easy piece of advice for an arrogant young Turk to take. I always prepared thoroughly (at least for the first few years) and believed I went to court armed with an excellent knowledge of the evidence and as good a knowledge of the law as was required. How, I asked myself, could I not know more than my opponent because he couldn't possibly be as thorough or as clever as me. Of course it didn't take long for me to realise the value of the advice. That value lay in recognising that "knowledge" is not all about reading bits of paper and absorbing information, it is also concerned with understanding the possible ramifications of what you have learned and the various ways it could all be interpreted.

From time to time barristers take over cases previously in the hands of another member of the Bar, perhaps he is double-booked or the client didn't like him or whatever, cases sometimes have to be passed to others; it is known as "returning" - the original barrister must return the papers and someone else picks up the "return". I don't think I received a single return in which I agreed with every aspect of the advice given by my predecessor or every aspect of the way he had prepared documents for court. That didn't mean I was right and he was wrong or vice versa, it merely meant that he was doing the case his way and I did it my way. Not everyone gives the same advice because not everyone interprets the law in the same way; not everyone drafts documents the same way because not everyone agrees on the most effective way to present the case to the client's best interest. There is nothing special to the law in this, ask a dozen gardeners when, into what type of soil and how deep they plant seed potatoes and you can expect at least ten different answers. It's not a matter of one being right and the others being idiots, they all form different views based on their own experience and their own judgment.

Of course there were times when I would pick up a return and find a fatal flaw in the case or a killer point not yet taken. It didn't happen often, only twice that I can recall, but it is bound to happen sometimes. For all I know people taking returns from me found the same even more often. Usually the reason I would want to alter something about how the case was presented was because my particular experience (or lack thereof) persuaded me that a change of tack would be in the client's interest. Not uncommonly I would make a change after learning the identity of the judge who was to hear the case. There were some judges before whom a particular approach was a suicide note, so that had to be abandoned and something else found otherwise disaster would be likely to strike. Local knowledge was important.

You see, wisdom and judgment are not absolute qualities. The most reliable judgment generally comes from a combination of technical knowledge, experience and strong powers of analysis, but nobody knows everything, nobody has perfect judgment and nobody is on top form all the time. Nonetheless, if you want the highest chance of a job being done well you entrust decisions to people with these three qualities. And where there is a local element to the issue you would be well advised to look for local knowledge too.

A couple of weeks ago I burbled on about the inability of central government to provide services efficiently because of excess bureaucracy and political interference. It seems to me that a vital aspect of providing services, whether in the private or the public sector, is effective local management. Only local management by properly experienced people can combine the qualities needed for good decision-making and an efficient use of resources at the point of use. That does not mean that the same decisions will be made in the same circumstances everywhere in the country. Indeed, it must not mean that. Uniformity of decision-making means that decisions are not being made, it means boxes are being ticked for administrative convenience.

A particular problem caused by services being provided by government, rather than just funded by government, is the pressure for uniformity. Heart-rending stories appear from time to time about someone with a particular serious medical condition who cannot get the treatment he needs in his area or cannot get it as quickly as it could be provided if he lived elsewhere. Calls go up for new central guidelines to guarantee uniformity of treatment for all sufferers of that ailment. Ministers condemn inequality, promise a review then issue ever more detailed guidance. In a few months' time another example arises, then another a little while after that. The problem, I believe, arises because of too much central guidance not too little.

Good local management makes exceptions where it can for individual exceptional cases. This happens in individual branches of nationwide supermarkets, car hire companies, carpet shops and the rest. It happens because in the real world, where the delivery of good service is crucial to survival in a competitive marketplace, sensible local management is seen to be an asset not a cost. Not every hardluck story has a happy ending in the private sector, but the system allows greater flexibility than where day-to-day decisions are dictated from the centre rather than being entrusted to the front line. Too often the explanation for expensive treatment being denied in one area when it is available in another is that targets could not be met if money were diverted from, say, ingrown toenails to face cancer. Rather than make an exception and risk penalties for failing to meet targets, local managers pass the buck upwards.

Swathes of guidelines from the centre carry two risks. First, they rely on the judgment of too few people. An inner circle of advisors, some medical (whether or not hand-picked to be poodles for the government) and some political, give their views and a minister decides. The combined power of judgment is a tiny fraction of that available at local level, yet what they say holds sway over the whole country. This risks stifling the very skills that good local managers should be employed to utilise. Secondly, the edicts they issue can have no effect on the ground unless they are too specific to be generally useful. Waffle has no effect so they descend into micro-management without having detailed knowledge of local conditions. The reason micro-management from the centre cannot work is that it approaches problems from entirely the wrong perspective. All the best central guidelines in any field set out prohibitions not prescriptions, they define what should not be done rather than trying to second-guess every possible scenario and defining what should be done. Take professional conduct rules as an example, they are all about types of conduct which are not acceptable, provided they are complied with professional people are trusted to use their own judgment.

Whether it be in the NHS, state schools, refuse collection or any other service provided by central or local government, no one has a monopoly of the best way of doing things. Ministers in central government are, I would suggest, worst placed of anyone in the chain to say what must happen on the front line. Failure to realise that variations in practice are a strength not a weakness and that variations in practice lead to improvements through experimentation, leads to stagnation at ground level for fear of stepping out of line with the one true path. A strong government understands how little it knows and trusts people to do a better job than the minister ever could, a weak government seeks to establish strength by pretending to know things it doesn't.

Rights and irresponsibilities

A couple of days ago the government launched a discussion about what it calls "rights and responsibilities". The Green Paper in which the scope of the discussion is contained sets out the government's position clearly. They seek to establish a new Bill of Rights. There is no special magic in the words "Bill of Rights" because there is no universal legal or linguistic limitation on what a state or government can include in something it calls a Bill of Rights. It could include fundamental constitutional principles only, or it could add specific laws of a non-constitutional nature. Following the latter course merely stores up problems for later.

Constitutional principles are all about the powers of the institutions known collectively as the State. In the UK those institutions grew up in various ways over time and many of the limitations on their powers are defined solely by convention. In recent times many of the ancient conventions (some of which are not actually particularly ancient) have been ignored by governments of both parties in favour of the unsupportable "I'm in office, therefore I'll do it how I want". Margaret Thatcher was noted for riding roughshod over her cabinet when she felt their collective view was wrong and that attitude has been taken further in the Blair and Brown years by the virtual abolition of cabinet government, with decisions being taken by a small cabal of the Prime Minister's trusted advisors (not all of whom are members of the government let alone the cabinet). The relationship between the executive and the legislature has also changed beyond recognition with policy announcements being leaked to the press and then announced to the press long before they are put to Parliament. Debate of important new legislation is curtailed like never before and some very serious issues are not allowed to be debated at all.

These changes of approach could not have occurred if the powers of the Prime Minister, the cabinet, the executive as a whole and the legislature were enshrined with specificity in an overriding constitutional document. I can see a case for such a document being produced provided it is limited to defining the powers of the main institutions of the State and contains a method of enforcement. The exercise is far more easily said than done, but that does not make it impossible.

What makes me shiver in anticipation of something truly ghastly is the present government's notion of a constitutional document setting out the responsibilities of the little people to each other and to the State. At the moment we owe one duty to both each other and to the institutions of the State. We must comply with the law. Nothing else is needed and nothing else is appropriate. If I breach my neighbour's legal rights he can seek a remedy against me through the courts. If I breach the criminal law the State can prosecute me through the criminal courts. In either event I will have done the same thing, I will have failed to comply with the law.

That is not to say that we are not subject to all sorts of forces that compel us to act in particular ways even though the law does not require us to do so. Most of us try to be polite and to treat people with respect, others aren't particularly bothered and others again are rude and insensitive. How we behave in ordinary everyday situations is a product of our upbringing and our own values of what is right and wrong. It is impossible to legislate for politeness, for helping little old ladies across the road, for community bulb-planting sessions and all the other nicenesses we do to make our lives less shallow and empty than they would otherwise be. Actually, that isn't right. Legislation can be passed and we can have Community Politeness Officers stationed at every supermarket check-out to hand a fixed penalty notice to those who fails to utter a please or a thank you. In the real world, however, legislation of such a nature would swiftly bring the law into even greater disrepute than the 3,000-odd new offences created over the last decade.

Against that background we have this Green Paper discussing rights and responsibilities. Most of it is concerned with enshrining the responsibilities of the little people into some sort of advisory code. The Green Paper specifically says that the government does not propose for such a code to have the force of law, yet there are lots of lines in the document and one does not even need to read between them to see that that is exactly what they have in mind. Time and again they mention specific responsibilities, such as attending court to give evidence and reporting activity consistent with money-laundering, and assert that they are not responsibilities compelled by law, whereas they are compelled by law. They suggest the code might contain a responsibility to treat NHS staff and other public sector employees with respect. Why just public sector, why not the lady behind the bacon counter at the supermarket and the waiter who serves your bowel-burning curry? If the public sector deserves special treatment those working in it will want to receive that special treatment not just hear that people are being invited to treat them particularly well. They suggest it should contain a statement of our responsibility to protect the environment, yet different people view environmental issues in different ways - paper bag or plastic bag, which is more "green"? You might be surprised by the answer, or you might not, it rather depends how you define "green".

And then the vital question arises. What possible use is any such code unless it can be enforced? In truth there is an answer to that rhetorical question because one can look at the Highway Code and find a set of guidance about how to drive with safety and consideration that has served the country well for many years and does not, directly, have the force of law. Some of the guidance in the Highway Code reflects the law but it is failure to comply with the law that is an offence not failure to comply with the Code itself. However, failure to comply with advisory aspects of the Code can be taken into account by a court when considering whether someone was driving without due care and attention. What started out as a guide to help those who might not understand the risks involved in driving has morphed over the years into a piece of quasi-legislation.

There might seem no harm in legislation saying, in effect, "please be nice to each other" but it's hard to believe it will stop there. It must be considered against the current background of law including the catch-all law against "anti-social behaviour". At present being rude to a hospital receptionist is probably not caught by that law (although it runs the risk of you having to wait longer to be seen by a nurse or doctor). But for how long will that be the case if there is a new Responsibilities Code?

Another theme running through the Green Paper is Human Rights. It is said over and again that we now have a Human Rights Act that defines our rights but not our responsibilities. It is pointed out, correctly, that one person's right is another person's responsibility. It is then asserted, incorrectly, that because our rights are now defined so our responsibilities should be codified. That is, to my mind, an illogical leap. If I have the right to privacy it follows automatically that you do not have the right to interfere with my privacy; the responsibility is implicit in the right it is not a separate thing, they are two sides of the same coin. Create a code of responsibilities and you risk creating free-standing responsibilities without correlative rights. The more detailed the code, the greater the chance of this happening.

We have seen a worrying trend over the last decade to create broad catch-all offences that are enforceable by fixed penalty notice and are far too open to interpretation by the day-glo jacketed minor functionary with power to issue such notices. The penalties cost but the additional cost and trouble of appealing against them is far greater. It contributes to a sense of the little people being put-upon by the State, where the easy targets are made to pay while real criminals escape with a warning. A Responsibilities Code is ripe with opportunities for this pattern to be widened.

At heart I am troubled by the very concept that the responsibilities of the little people to the State are constitutional matters. They are not, they are matters for the law. True constitutional issues are concerned with the power of the State not with how the little people comply with the manifestations of that power. They operate at a different level from the laws made pursuant to those constitutional powers. The State should exercise its powers through clearly defined laws so that the little people know that engaging in those defined activities risks incurring a penalty. The laws by which the State criminalises certain activities are not constitutional laws, they are laws made using powers the constitution gives the State. Our obligation to comply with those laws is also not a constitutional matter, it is merely the necessary consequence of the laws themselves.

The greatest danger is that a supposedly constitutional document will be used to promote party-political policies for which there is not universal support. Calling them constitutional matters will seek to lift those policies out of the realm of debate and make them immutable. The most obvious example in the Green Paper is the right to medical care free at the point of delivery. That is not a constitutional issue, it is a purely political issue. It seems to be an attempt to lock us into a State-run NHS until the end of time. Maybe that is wise, but there are arguments against it which should not be shut-out from debate and, indeed, which might become more persuasive to the little people in the future than they are today.

One thing which is fairly clear is that this exercise is looking to the next general election rather than looking to make good law. The government wants to present itself as the little people's friend and will pretend that this Green Paper and any resulting legislation have that effect. It seems to me that it is a confused and potentially dangerous move which, if recent history is anything to go by, will be riddled with provisions allowing for new law by Ministerial fiat.

From simple to sinister

It is now Sunday evening and many have already written about a most extraordinary explosion of brainless vitriol from the deputy leader of the Labour Party, simple Harriet Harman, nonetheless I will not be able to bring my blood pressure under control without saying my piece, so here it is.

This morning the Leader of the House of Commons and deputy leader of the Labour Party was interviewed on BBC television. Her interviewer was a tame poodle of the Labour Party, a man whose wife is not only the daughter of a former minister under the previous Labour government but also a close friend of the woman he was interviewing. This was undoubtedly a good thing. Some have bemoaned the lack of criticism in the questioning and the failure to follow-up daft answers with any sort of penetrative analysis of the weakness of those answers. They have a point, but they miss the real value of allowing someone like simple Harriet Harman to be interviewed by a receptive sponge. It allows her to say what she really thinks, safe in the knowledge that she will not be contradicted or challenged. And that allows us the chance to see how very dangerous she is.

She was asked about the pension arrangements of Sir Fred Goodwin, about which I bleated a couple of days ago (here). Her response (see BBC article here) was in three parts. First she said Sir Fred should not count on drawing his pension "because it is not going to happen", then "the Prime Minister has said that it is not acceptable and therefore it will not be accepted" and finally "it might be enforceable in a court of law, this contract, but it is not enforceable in the court of public opinion and that is where the government steps in". I doubt that she has any idea of the meaning of these three statements, so I'll see if I can help the poor cow.

Her first assertion, "it is not going to happen", a standard form of words used by mobsters. When I dealt with criminal work at the Bar I occasionally acted for people suspected of involvement in organised crime. Some of them had long criminal records and were very likely far more than merely suspected, a couple were later convicted of Mafia-like activities and all suspicion was removed. They operated their business by deciding in advance what the result should be and using any means at their disposal to achieve that result. A brothel is for sale and Robbie the Rasta wants to take it over, Big Terry the mobster says "that is not going to happen". The next day Robbie the Rasta is found to have sustained injuries to his knees and testicles from a number of baseball bats and Big Terry ends up in charge of the brothel. Well well, what a surprise. If you decree the result in advance you are placing yourself in the same camp as Big Terry because you are applying the same standards he applies.

Her second argument is even more worrying: "the Prime Minister has said that it is not acceptable and therefore it will not be accepted". Have we really descended to a state in which the Prime Minister can dictate whether individual transactions will be honoured? Have we really descended to a state in which a senior government minister can boast that we are subject to Prime Ministerial fiat? The sad thing is that we have been in that position for some time. So many laws now give ministers discretion to make major decisions without having to seek specific approval from Parliament that it is hardly surprising to find the government thinking the default position is for more and more matters to be subject to ad hoc exercises of ministerial discretion. None of the major recent decisions taken about the economy have been subject to Parliamentary scrutiny, or, if it comes to that, even of cabinet discussion. The Prime Minister and Chancellor of the Exchequer have decided between them to borrow and spend billions of pounds without anyone else having a say at all. Simple Harriet is merely taking that position one step further. Of necessity she has to be seen to support poor Gordon as he lurches from misjudgment to misjudgment. Her hero has within his power the right to hand over billions of pounds to RBS, so why shouldn't he be presumed to have the power to decide how £693,000 a year of that money is spent?

Her third proposition is the one which identifies just how deranged she now is. Remember that the basis of her point is that Sir Fred Goodwin has a legally enforceable contractual right to receive his pension; she is accepting for these purposes that he has a legal right to the money. Then she seeks to suggest that legal rights are subject to "the court of public opinion". Although she is pretty thick, it is hard to imagine she really believes this to be the case. But let's take her at her word, and assume she does believe it. What is "the court of public opinion"? Well, first it is not a court. In a court you have to argue a case against a background of laws. The law trumps everything. Public opinion is just that, the current state of opinion as measured by ... ah, there's the problem. Public opinion cannot be measured except by asking a sample of the public and extrapolating the balance of views held by that sample to find the general public opinion. It is not a reliable way to gauge anything because so much depends on the chosen sample and the framing of the question. And it can change tomorrow and the next day.

Let's put these two questions: (i) do you think Sir Fred Goodwin should receive a pension of £693,000 a year for life and (ii) do you think contracts should be upheld? And let's follow simple Harriet and assume the answer to the first question is in the negative. Public opinion can then be said to be in favour of preventing Sir Fred getting the dosh. It doesn't take a very prescient person to guess that the answer to the second question will be in the affirmative. So where does that leave "the court of public opinion"? It is giving contradictory rulings - that he should not receive the money and that he should receive the money. How do we resolve this conflict. That, it seems, is where the final part of her third proposition comes in. Not only did she say contracts are subject to "the court of public opinion" but went on to say "that is where the government steps in". But the government cannot step in to enforce the rulings of the "court of public opinion" because those rulings are contradictory. In other words she is not, in substance, arguing that public opinion should dictate whether a contract is enforced, she is saying the government should have this power. Seeking to justify her position by relying on public opinion is just a smokescreen.

The position she puts forward is deeply sinister, but it is also consistent with everything she has ever stood for and argued for. She is a dedicated Marxist for whom The State can do no wrong. The arbitrary exercise of power is an inevitable outcome of The State being more important than the people. Simple Harriet is far too stupid to think through what she says, she is in a blind panic to keep her career alive by appealing to the basest instincts of her core supporters. Her absurd comments will come back to haunt her. In the meantime I look forward to her making a bigger even arse of herself when she has to back-track, as she undoubtedly will.

European corruption of law

One of the worst aspects of both the Human Rights Act and European law generally is that they encourage disreputable behaviour. Much European law consists of vague statements of principle that are concerned with ideals rather than practicalities and in doing so leaves scope for spurious claims by those keen to bask in the bright sunshine of victimhood or who see the chance to enrich themselves with an unearned buck. It might just be that I am too deeply immersed in the English common law to understand the European way of doing things, but I am not so immersed as to be unable to see a style of law that is more concerned with political gestures than with freely agreed individual relationships.

In The Times today my eye was caught by the report of a claim based on an EU political diktat. It is not so much the particular law that interested me, but the fact that the claim was made by a retired part-time judge. There are lots of part-time judges in this country. Some are practising or retired barristers and solicitors who sit for a few weeks each year for a fixed fee per day and some do it as their job. This particular case concerned a practising barrister who sat part-time until he reached the compulsory age at which part-time judges must retire, 65. When he was appointed there was no scheme for part-time judges to be paid a judicial pension, unlike full-time judges who are paid an annual salary and are entitled to a pension calculated by reference to the number of years they served. Despite there being no scheme in place when he was appointed, and despite there being no scheme in place when he retired, and despite there being no scheme in place now, his claim was that he was entitled to benefit from a principle of European law that part-time workers should have the same rights as full-time workers. Because full-time judges have a right to a pension, he argued, so he should have a judicial pension calculated according to the time he served as a part-time judge. For reasons I need not go into his claim failed on both procedural and substantive grounds (the full judgment is reported here).

What I find utterly astonishing is that such a claim would be made at all. This was not a poor downtrodden serf being forced to take on a thankless menial task for peanuts to avoid starvation and being treated like dirt by a manipulative employer. The man was a barrister with many years of successful practice behind him who applied for a part-time judicial post because he wanted to, in full knowledge that he was being offered a daily fee and not a bean more. As the Court of Appeal's judgment discloses, he is not the only one who has made such a claim. I could, perhaps, understand a test case being brought by the barristers' and solicitors' professional organisations so that the law could be clarified, but for an individual to make a claim strikes me as thoroughly dishonourable. If you enter into an arrangement with full knowledge of what it involves and voluntarily accept the limits to the financial benefit you will receive it would require a lot to persuade me that it can be right for you to turn around later and claim more.

There have been many examples under the Human Rights Act of people seeking to escape from obligations voluntarily entered into. I find it a very troubling consequence of so many laws emanating from Europe that old-fashioned straight-dealing can be undermined in this way. Perhaps I am influenced by my great interest in contract law which puts emphasis on people sticking to the bargain they have made even if it turns out to be a bad bargain. However, to me that is not just at the core of the law of contract, it is at the core of civilised behaviour. People we deal with rely on us to be true to our word and we rely on them. It allows us all to organise our lives in reasonable expectation that we will be treated in a predictable way.

Much of the debate about the EU revolves around the inability of the democratic process to affect decisions taken in Brussels. That is something about which I write rarely, although it is a matter of huge importance. But it is not only in the democratic deficit that I find the EU a dangerous entity. Once it has spewed forth its latest broad statement of political ideal coupled to a requirement to apply it throughout the EU countries, we find existing arrangements which have operated well and fairly for decades being challenged by (and sometimes overturned in favour of) those who knew exactly what they bargained for when they entered into those arrangements. The mere fact that EU law operates in a way that allows such challenges undermines reliance between people, it requires us always to look up to the almighty power in Brussels for approval of what we have agreed is a good and fair deal for us.

As someone who believes the most stable and civilised society is one reliant on trust and cooperation between individuals, I have a dislike and a distrust for unanswerable and over-powerful government. The case I have discussed here is a good illustration of how untested ideals dictated by an unanswerable government can undermine trust between people by giving an opportunity to break agreements in the name of that ideal. When ideals trump deals we are only a short step from dictatorship.

Don't take this, it will do you good

My attention has been brought by Mr Englishman to a most frightening individual by the name of Dr Alan Maryon-Davis. In an article on the BBC website this double-barrelled poltroon urges greater and greater intrusion by the law into what we may put into our bodies and where we may do it. His pompous, authoritarian attitude has been addressed by several commentators already including (do not read these if you are offended by strong language) Mr Smoker (here) and Mr Kitchen (here).

I have a good friend who is a doctor, a senior and well-respected consultant. He wants to ban anything that is potentially bad for people unless he enjoys doing it himself. To him, restrictions on booze are an oppressive and unnecessary interference with personal freedom and ancient social habits, whereas hunting and boxing should be banned forever and infringement punished with heavy sentences. Smoking should be permitted in the home, because he sometimes takes a ciggy, but it should be banned in pubs and restaurants because he prefers a smoke free atmosphere in such places. There is nothing fair, balanced or objective in the position he takes and he couldn't care less whether others would find their enjoyment of life restricted or lose their jobs.

It is not for me to say whether Dr Double-Barrelled is as shallow and irrationally selfish in his authoritarianism as my friend, so I will give him the benefit of the doubt and assume he really believes what he says. In order to assess the full horror of his attitude it is necessary to look at what he argues for and the reasons he gives. I have linked to the article above so I won't copy it, I think a fair summary is as follows: (1) the little people want government to manage their lives to protect them from themselves, (2) the little people are happy with the things government has already done to protect them from self-harm, (3) some of the harm the little people do to themselves it actually done by big business manipulating their feeble minds into thinking they want some thing they don't, (4) the government has done what it has done because the little people wanted them to and (5) the little people should suggest more and more ways in which the government can protect them from themselves. I have tried not to slant this summary, I think it is a fair synopsis of his article.

In this field, as in so many, blinkered thinking can have undesirable consequences. Underlying everything he says are two assumptions, both entirely without foundation. The first is that we little people are inherently self-destructive and must be protected from ourselves. The second is that the government has merely reflected public desire to be protected from themselves. Both propositions are so obviously and fundamentally absurd that one is forced to question why he has put them forward. I'll say a few things about the assumptions and then take a stab at his motivation.

Take the first assumption, that we are inherently self-destructive. That assumption is made clear in his argument that measures such as making the wearing of seat belts compulsory and banning smoking in places of work and entertainment were introduced to protect us from ourselves. By definition he is saying that without these measures we would happily keep running a merry path over the edge of a cliff. He implicitly rejects the notion that we know we are taking a risk and have voluntarily accepted that risk because we also perceive a benefit and, for us, the benefit outweighs the risk.

Every time I travel in a car, fly in an aeroplane, eat anything, drink anything, walk anywhere or, if it comes to it, do anything at all, there is a risk involved. If I travel in my car I know how it has been maintained, if I travel in someone else's I don't. If I fly with Virgin or Continental I take less of a risk than if I fly with an airline that has a less than impeccable safety record, but I might have to pay more. If I eat something I have cooked I know how it has been prepared, if I eat what someone else has cooked I don't. And so it goes on. We always balance the benefit we think we will receive against the risk we think we are taking.

The role of government is to protect us from dangers posed by others and over which we have no control ourselves and to inform us of risks we might not be able to assess for ourselves because we have insufficient knowledge. One aspect of this is legislation to seek to ensure that services provided to others are reasonably safe. For example we have stringent laws about food preparation by commercial caterers. One reason for these laws is, of course, to try to minimise the risk of food poisoning, but that is not the only reason. Hotels, restaurants and cafes are a significant part of our economy and they can only be a significant part of the economy if people have trust in their food being safe. Provided we trust them to play by the rules, we perceive little risk in giving them our custom. Some we don't trust because we have seen cockroaches nibbling at the salad bar and heard the scurrying sound of rats in the kitchen; we will give them a wide berth. Others we do not know whether to trust and the laws about food preparation help to give us reassurance.

Activities such as smoking cigarettes and drinking booze are not normally undertaken in order to shorten our lives. They are undertaken because, for those who like those things, they improve the quality of life. We can debate, until the cows stop mooing, whether there is any objective benefit from the inhalation of smoke created by burning dried tobacco leaves or from drinking alcohol, but that is not the issue. I do not smoke and drink as part of an objective exercise of living the perfect life. I do so because those activities give me pleasure. They might not give you pleasure, that's fine, you won't do them and will seek your pleasure in other ways. Like all smokers and drinkers (other than those who have been wholly isolated from newspapers, television and radio for the last thirty years) I am aware that smoking and drinking are activities with a potential downside. No doubt I have witnessed part of that downside already, having suffered a serious heart attack at an unusually early age. I continue to smoke and drink because I place the subjective benefit I receive above the potential peril I risk.

The crucial question is the extent to which government should decide what risks the little people should be allowed to take. There is a massive gulf between government advising us of risks we might not appreciate and government preventing us from taking those risks once we have been alerted to them. Advising us and leaving us to decide is the position of a government that trusts the people and knows its authority comes from the people. Preventing us from taking risks to which we have been alerted is the position of a government that does not trust the people and believes its authority exists independently of the people.

None of this has anything to do with activities which harm third parties to a sufficient degree that the law should step in to protect the innocent because that situation is outside Dr Double-Barrelled's first assumption. His first assumption is that we little people wish to harm ourselves. We don't. We weigh risks. I have described it as a balance between potential harm and potential benefit, but it can equally well be put as a balance between two types of harm. We balance our assessment of the risk of being caused harm by undertaking a particular activity against our assessment of the harm of forgoing that activity.

Take a simple example. Mr Ordinary has worked all week at the job he doesn't enjoy very much and wants to spend his small amount of "treat" money on something to give him pleasure. If he finds pleasure it balances his week, if he doesn't it adds to his overall tally of misery. His particular pleasure is eight pints of lager and a chicken vindaloo in the company of his friends. He knows that if he meets Fred, Bob and Charlie at the Stoat and Scrotum for five pints and they then visit Curry Heaven for a chicken vindaloo and three more pints, he will go home a very happy man. It will make his week and prepare him for the next. You can isolate the eight pints and say that is a harmful amount to drink in one night. Maybe it is, maybe it isn't, that doesn't matter one jot. You can isolate the burning hot curry and say it is bad for his digestive tract and bowel movement. Maybe it is, maybe it isn't, that doesn't matter one jot. What matters is that it is what he enjoys doing and, if you want it in quasi-medical terms, that will be better for him than drinking tap water with a meal of tofu nut-roast surprise. It will be better for him because life is about more than the body, it is also about the mind and emotion and happiness.

People like Dr Double-Barrelled seem to have no comprehension that dying at fifty as a result of the things that have given you a happy life is, for those who choose that life, better than dying at eighty-five after a lifetime of pious abstinence. He clearly believes that smoking and drinking a lot are harmful, but he only looks at one side of the equation. The other side of the equation is the subjective quality of life of the individual concerned. He cannot measure that, and no amount of self-righteous bleating by pompous prigs like him can change the fact that real people take decisions based on how they value the things he wants to ban.

This missive is already long, so I will deal with his second assumption quickly, it is that the government has legislated to reflect a public desire to be protected from themselves. I defy him, or anyone, to find me a single person in this country who holds the view "I'm glad they have banned smoking in pubs because I never wanted to smoke in the pub, I only did it because it wasn't a crime". It is utterly absurd.

You will have to read his article to see just how confused and contradictory his argument is. I am reasonably sure I know why he says what he says. Here, again, I give him the benefit of the doubt and do not suggest that he is just putting forward a case which, if accepted, will keep him employed on a fat salary at the taxpayers' expense until his diet of salt-free tofu, fat-free lentils, assorted vegetation and additive-free water takes its toll. Nor do I suggest that he would ever be so hypocritical as to eat a diet containing other than salt-free tofu, fat-free lentils, assorted vegetation and additive-free water. Nor do I suggest he is a simple-minded ego-maniac determined to build his own little empire based on gathering power over the little people. Nor do I suggest that he is so arrogant that he thinks he knows better than Mr Ordinary how Mr Ordinary should live his life. Nor do I suggest that he has the capacity to see the contradictions in his own article. I think he says what he says because he has absolutely no understanding that life is about more than longevity.

That, of itself, makes his opinion completely worthless. Whether it also renders him unfit to hold the position he does is for others to decide.