On us, and our not taking it

Janan Ganesh, the FT’s political columnist, was born in 1982. At 33 or 34, that makes him just young enough to count as a Millennial, if Strauss and Howe’s grand theory of eternal return is taken as read, or at least pretended to have read. Perhaps this is, in part, why Ganesh’s column on why Millennials don’t know they’re born has produced such a stir: a convert is always more influential than a mere priest.

Ganesh’s piece is, as always, beautifully written. He understands the economy of words better than any prominent political writer in the UK. And to give him his due he is, of course, right when he seizes the pulpit to denounce the eschatological heresy of looming intergenerational Armageddon:

The fracturing of public life along generational lines has felt imminent for some time. And it will continue to feel imminent. Generational politics will never take off because no normal person identifies with a collective as large and internally diverse as their age cohort. It is too tenuous a bond to spur concerted civic action.

Yet despite this bracing good sense, his argument – that Millennials should be grateful for our luck of having been born in (for instance) 1990 as opposed to 1960 due to the “dazzling consumer gains that come with technology and competition multiplied by the passage of time” – fails to convince. Ganesh supposes that these consumer gains are in some way a cosmic compensation for the relative abject asset poverty into which my generation has been born, but to do so misunderstands the nature of the injustice which has been done to us.

Ganesh’s argument would hold if generational injustice was necessary to lower crime rates, reduce the cost of flights and accelerate the development of the smartphone, the iPad and Skype. This might excuse the imbalance as a payment we (unwillingly) made for our living standards – but Ganesh never proves this, or even adduces any evidence to that effect. It is no good saying to someone whose house has been burnt down by arsonists to cheer up because it’s a sunny day outside: it was always going to be a sunny day, thank you, and I’d rather have lemonade on the front porch than rubble and a suntan.

Of course I (on balance) would rather be born in 1990 than 1960. I’m less likely to get beaten up or robbed; I’m less likely to die abroad; I have access to the sum of all human knowledge at my fingertips. But unless stagnant wages and low house prices were necessary for me to have these things (not, in fact, a ridiculous supposition given how capitalism and competition operated in the West), I’m more than entitled to be angry with my lot. So is my cohort. Until research can confirm this hypothesis, the last word should be Ganesh’s:

Beneath the pose, there is nothing there.

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The nEUclear option

A comrade for Leave argues that repeal of the European Communities (EC) Act 1972 instead of activation of Article 50 of the Lisbon Treaty is “not an option“, calling it “irresponsible”, “unthinkable”, “thoroughly un-British” and “a political and economic disaster”.

This is strong talk, and accurate too as far as it goes. There’s no doubt that an act as extreme as unilateral withdrawal from the EU outwith the provisions of the Treaty would be an internationally wrongful act earning us severe opprobrium and probably massive economic reprisals around the world. This is why it is not generally mentioned as the first resort for British disentanglement from Brussels. But it remains possible for the one reason Ben neglects to mention in his post.

The European Union rests on its processes and institutions making ongoing membership more attractive and (crucially, for democracies) less politically painful than reaping the potential benefits of flexibility outside is structures. Accordingly this requires the Member States to pressure each other not to give up on the project. It is comparable to unionisation: the many can only retain the benefits so long as individuals don’t break off and bargain on their own to undercut the others.

A unilateral British withdrawal, though painful in the short run, would remind other Member States that they retain their sovereignty, and accordingly the right in domestic law to quit the EU whenever they want. It operates, not as a thoughtful tool of public policy, but as a weapon, an earthshaker to disrupt the very foundations of the European project. In the aftermath of a British withdrawal, it seems likely that other countries with strongly Eurosceptic tendencies like Denmark and the Netherlands would start sabre-rattling over their own place in the EU, with government ministers perhaps issuing menacing innuendoes about leaving by fiat unless the EU gives them what they want. Doubtless the British government, sensing an opportunity, would be wooing these nations with promises of trade deals and alliance to counterbalance the ailing Union to the south.

It isn’t accurate to say that withdrawing without recourse to Article 50 is “not an option”. It is not a pleasant option, and it’s one we ought not to use without regard for the consequences. But it’s there like a hand grenade at a Mexican stand-off, and should be treated in the same way. The SALT treaties were only negotiated by accepting that the use of nuclear weapons was not just not unthinkable, but eminently thinkable. Only by doing so can we hope to avoid catastrophe.

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House rules

Tim Montgomerie posits that, if the US presidential election comes down to a four-way between Bernie Sanders (Dem), Marco Rubio (Rep), Donald Trump and Michael Bloomberg (Ind), Mr Sanders wins by a ten-point margin. This seems to be borne out by the YouGov panel which CapX consulted to come up with this answer, and I think there is fairly good evidence to suggest that Bernie Sanders would hold the Democratic vote against Bloomberg together better than Marco Rubio would against Donald Trump. It is important, however, not to confuse Mr Sanders winning in the popular vote with President Sanders being inaugurated in January 2017. This is because of the Electoral College.

In the United States, American citizens do not vote for President, they vote to send electors to the 538-strong Electoral College who vote (usually) for their respective candidate. Each state has a certain number of electors, one for each of their Representatives and Senators, plus three more from the District of Columbia. Forty-eight states give all their electors to whoever wins the statewide ballot; Maine and Nebraska give two each to the statewide winner, apportioning according to the winners in each congressional district to reflect their Representatives and Senators. If any candidate gets 270 votes (an absolute majority) in the Electoral College, he or she is elected President. The same process occurs for the election of the Vice-President.

Lashed screaming to the tracks in front of the clunking great anachronism train of the Electoral College, you may hear the obvious question rumbling obliviously toward you: what if no candidate wins enough states to get 270 electors? This seems eminently plausible with the four candidates running: Mr Rubio could easily take 29-elector Florida, for example, while Mr Bloomberg would present a strong challenge to seize the 29 electors from New York (and perhaps even the 55 from California). We must turn to the Twelfth Amendment to find out what happens in this scenario, and it’s more bizarre than one might first expect.

The Amendment reads:

…if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice.

In plain English, what the Amendment means is that the House of Representatives must choose the  President from the three top-scoring candidates in the Electoral College (not in the popular vote). However, in doing so, individual Representatives do not get a vote; rather, their whole state’s delegation does; the new President, meanwhile, would need the support of at least 26 of the 50 states in order to take the oath of office on 20th January.

I’ll illustrate with an example. Say Mr Sanders wins a swathe of the East Coast, Mr Rubio the Mid-West and lower East Coast, Mr Trump the South and the Mexican border, and Mr Bloomberg New York and (for argument) California. For simplicity’s sake, we’ll suppose that Maine and Nebraska’s electors all go to one candidate, notwithstanding their somewhat unusual system (see above).This is, of course, fanciful, as it’s hard to predict how this four-way race would go in each state, but these numbers will serve for the point.

Let’s assume our notional Electoral College looks like this:

Candidate Electors
Bernie Sanders 160
Marco Rubio 176
Donald Trump 118
Michael Bloomberg 84
Total 538

 

This would mean that the House of Representatives, still composed wholly of Democrats and Republicans, would have to choose between Bernie Sanders, Marco Rubio and Donald Trump, since the fourth-place Bloomberg would be eliminated. However, it would not be as simple as a standard party-line vote: rather, each state gets a vote, and each of the state delegations has its own internal majority. For example, the mighty state of Wisconsin sends eight Representatives to the House, of whom five are Republican. In a deadlock, Wisconsin would vote for a Republican President.

So how would they choose? Well, after the 2014 mid-terms, the congressional districts look like this, making somewhat discouraging viewing for the Democrats:

Yet more important than the raw congressional districts (246 Rep, 188 Dem) is the fact that Republicans hold a majority on 31 of the 50 state delegations (the Democrats have 16 majorities, and there is a tie in the delegations from Maine, New Hampshire and New Jersey). Assuming Marco Rubio manages to get into the top three in the Electoral College, then, he will almost certainly become President: no matter what happens to the House of Representatives in November, the new House won’t take office until 3rd January and the old, Republican-dominated, 114th House of Representatives will choose the President after the Electoral College meets on 21st December.

This is by far the most likely scenario: If the Electoral College looks likely to divide, Mr Rubio’s chances of becoming President skyrocket regardless of which candidate commands the allegiance of a plurality of the American people, because the Republicans hold a majority on a majority of the state delegations to the House of Representatives. (Whew.)*

A thought may occur to you: what if the 114th House of Representatives, balloted as prescribed in the Twelfth Amendment, fails to come to an absolute majority decision before the new, 115th House takes office on 4th January? Indeed, with the inspirational figure of Bernie Sanders at the front of their campaign, the Democrats might (maybe!) manage to replicate their 2008 results, giving the 115th House a Democratic majority. If this happens, we can see almost a mirror image of the 2014 House: the Obama wave delivered 34 Democrat-majority House delegations to 15 Republican, with Idaho as a perfect tie. In this case, against all odds, President Sanders is duly elected in the nick of time before Inauguration Day by an absolute majority of the states. (Double whew.)


 

Pause for a moment and take a breath. What if no decision is made by Inauguration Day on January 20th? Well, if this situation lasts until then, the Vice-President-elect will serve as acting President until one is chosen by the House. But how, in this state of deadlock, is the Vice-President chosen?

An aspirin might be helpful at this point.

…if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.

Unlike the House, the Senate is only entitled to choose between the two top-ranking candidates in the Electoral College, presumably the respective running mates of Bernie Sanders and Marco Rubio. As it stands, the 2014 Senate is majority-Republican, while it was Democrat-controlled in 2008, so if the vote follows the two scenarios already described there shouldn’t be too much administrative fuss and the victorious President would have the understudy of his choice. This would, on the analysis outlined above, probably be Marco Rubio’s (or Donald Trump’s!) running mate, who would be elected as Vice-President by a simple party-line vote in the Republican-majority Senate.

Yet since the Democrats might conceivably win back control of the House on an Sanders sweep, this gives us the intoxicating possibility that the two Houses of Congress could pick a socialist Democrat as President and a Republican (or Trumpist) Vice-President, depending on who comes in the top two in the Electoral College. This sounds like a hilarious quirk of fate or perhaps the setting for an excruciating political satire (like Veep meets Starsky & Hutch), until we remember that of the 43 individuals to have served as President, eight have died in office, giving the job a base mortality rate of 18.6%. Bernie Sanders, meanwhile, will be 75 on Inauguration Day 2017, the oldest President in history.

The final step, if the Senate is tied (50-50), is that the job of acting President falls to the next on the presidential line of succession after the President and Vice-President, until either branch of Congress gets its act together – which, given the Senate’s enthusiasm for the filibuster, could be rather a long time. As everyone knows, the second in line to the Presidency is the Speaker of the House, who is…

Paul_Ryan_by_Gage_Skidmore_3

Perhaps this was his plan all along!

So there you have it. On my analysis, the The Twelfth Amendment allows the House to elect a candidate who failed to win the popular vote, or gives us President Sanders and a Vice-President chosen either by Marco Rubio or Donald Trump, either of whom could become President at the drop of a geriatric. In extremis, it leads to (acting) President Paul Ryan. In other words, we face once again the hypothetical possibility that US would have the first President in known history who wears a baseball cap to weightlift. What better reason for reform could one need?


*I wrote this back when Rubio was a vague possibility and hadn’t had his teeth knocked out by Donald Trump. As it stands, now, there’s more of a chance of the three candidates in the House each being repugnant to a majority of voters. I think what happens then is that the House will choose by “ballot”, which seems to mean two rounds of voting, eliminating the lowest-ranked candidate after the first round. This possibility is alluded to in this National Review article, discussing the potential effects of a McMullin win in Utah upsetting the Electoral College. (RN 2016-10-12)

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The next two years, part 1

Chris Hanretty’s Medium post about the Portuguese elections, purporting to debunk the Telegraph’s write-up of the President’s remarks on forming a government, has been doing the rounds. I suspect there might be a little more going on than he lets on.

It is without doubt that Ambrose Evans-Pritchard, the author of the Telegraph’s somewhat hysterical piece, has selectively quoted the Portuguese President in order to give the worst possible spin on the outcome. What is also true is that Mr Hanretty has done the same in reverse. For instance, his post openly discusses the following paragraph:

“In 40 years of democracy, no government in Portugal has ever depended on the support of anti-European forces, that is to say forces that campaigned to abrogate the Lisbon Treaty, the Fiscal Compact, the Growth and Stability Pact, as well as to dismantle monetary union and take Portugal out of the euro, in addition to wanting the dissolution of NATO…”

And this is explicable fairly easily, as is his intent to ask the leader of the PSD to form a government first. However, unlike Mr Evans-Pritchard, Mr Hanretty fails to mention — quite deliberately, I think — the following:

“After we carried out an onerous programme of financial assistance, entailing heavy sacrifices, it is my duty, within my constitutional powers, to do everything possible to prevent false signals being sent to financial institutions, investors and markets.”

This, I think you’ll agree, is a much more explicit statement of the President’s apparent intent to use his constitutional powers to obstruct the formation of a government, perhaps even until new elections can be held a year from now. In other words, the President’s remarks have been reinterpreted by Mr Hanretty to ensure that any discussion of his agency and his particular political views have been quietly excised from the article. This is particularly difficult because most people will not read both the Telegraph piece and Mr Hanretty’s blog post, and will (because one tends only to read people and sources with whom one already agrees) end up with a one-sided picture of what the President actually said. This doesn’t seem very helpful to anyone.

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How radical is the Pope’s call for abolition of the death penalty?

This afternoon, His Holiness the Pope made headlines with a call to abolish the death penalty worldwide. This sounds pretty radical on paper: the death penalty is still widely practiced around the world, not least in the United States, where he was making his speech. Yet how radical is the abolitionist message for a Pope?

One way of looking at it is to see which Catholic-majority countries still practice the death penalty. Excepting Vatican City as an anomaly, the CIA World Factbook lists 49 countries around the world where Catholics form a numerical majority of the population. Of these 49, 11 retain the death penalty on the statute books, namely (in order of Catholic proportion) Equatorial Guinea, Peru, Dominica, Saint Lucia, Brazil, the Republic of the Congo, Chile, Grenada, Cuba, the Democratic Republic of the Congo and El Salvador.

This is fairly striking: what is more striking is that the only one where capital punishment is currently in use is Equatorial Guinea, which executed nine people in 2014. In all of the others, capital punishment has been abolished de facto through non-use (Dominica, Saint Lucia, the ROC, Grenada, Cuba and even the war-ravaged DRC) or is reserved for military crimes or crimes against the state like treason (Peru, Brazil, Chile and El Salvador).

The Catholic world is to be congratulated for its astonishing efforts in doing away with the death penalty. However, it seems that it has already accomplished much of what it can do in its own sphere of influence: taking the abolitionist principle to non-Catholic countries, especially in the Middle East and the rest of Asia, may be rather difficult. Even a country which had a Catholic president and currently has a Catholic vice-president has not abolished the death penalty; pushing for Iran or China or Japan to do the same might be a tall order even for this Pope and his masterful handle on public relations. His penchant for repeating long-standing Catholic dogmas in a more palatable manner probably won’t be enough to rid the world of capital punishment, but it’s nice to hear anyway.

Data from CIA World Factbook, as collected on Wikipedia, and Death Penalty Worldwide from Cornell Law School. My table is here.

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Some points to note about the Kendall open letter

An open letter to the New Statesman was published today, with 25 failed parliamentary candidates from across the country backing Liz Kendall to win the Labour leadership election. As Stephen Bush writes, the candidates come from across the party and stood inside and outside Labour’s (somewhat defective) list of target seats. Open letters are rarely interesting, but there are two points to note about this.

1. The winners

What isn’t mentioned in the letter or the New Statesman write-up is that all 25 candidates stood in seats where the seat was won by a Conservative. It became rapidly clear during the 2015 election that Labour lost the most ground, not to UKIP or the Greens (or even the SNP in Scotland), but to the Conservatives in England: candidates in seats which were taken by Tories might be somewhat more important for deciding the future direction of the party, at least in terms of electability at the next election. Moreover, Aberconwy is the only seat of the 25 which is not in England.

2. Were the seats winnable?

This, however, is less encouraging. Of the 25 candidates, seven came below second place, including one fourth-place candidacy in East Devon. Meanwhile, the Conservative majorities where Labour came second range from 165 in Croydon Central to 24,115 (!) in Sleaford and North Hykeham, which has never been held by Labour. The average of these majorities is 10,819: not unwinnable, but neither are these candidates the ones from the most marginal and winnable constituencies. This is, really, a broad sample of candidates who were beaten by Tories, regardless of whether they ever had any hope of winning in the first place. The presence of Nuneaton, Norwich North and Croydon Central on the list should give Labour commentators some pause: Nuneaton in particular was the bruising defeat of the election, and if Labour can take Nuneaton in 2020 (or 2019, or 2018, or if/whenever a motion of no confidence is passed in the Government) it will be much further along the road to a majority.

You can see my spreadsheet here.

EDIT: This post and the spreadsheet have been updated as the initial versions had Southend West’s Julian Ware-Lane coming fifth, not second. Thanks to Rory (@roreiy) for the correction.

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Child sex offences are more complicated than the Telegraph says they are

Update: The article referred to in this blogpost has been deleted from the Telegraph website, one hopes because the lawyers got nervous, and it doesn’t appear to have been preserved on the Internet Archive in time. Searching for the author’s name on the Telegraph website shows no evidence that the nasty bilge published under her byline ever existed. Oh well. Hopefully no harm was done.

This morning, the Telegraph published what is one of the most viscerally ideological and shamelessly misleading articles on the criminal law of England and Wales that I have ever read. Rebecca Reid’s piece, entitled “Adam Johnson sex claims: Anyone who sleeps with 15-year-olds is a rapist“, not only indicates that she is incorrect about the law on sexual assault and rape in this country, but that she did not even do the most basic of research on this most crucial of issues. What makes it worse is that instead of framing it as a feminist political argument on the meaning of the word ‘rape’, she actually invokes the law she has evidently never read.

But I’m getting ahead of myself. What does Reid say? I shall list her assertions first.

Everything goes wrong in the first paragraph:

Adam Johnson, a football player for England and Sunderland, has been arrested on suspicion of statutorily raping a fifteen-year-old girl.

The phrasing of the above is deliberate. He is not alleged to have had ‘underage sex’. He is alleged to have statutorily raped a girl who, aged fifteen, is legally unable to consent to sex.

And, as well all know, sex without consent is rape. Yet, many will refer to this alleged crime as ‘underage sex’.

Why? Because it doesn’t have the same connotations as rape. Underage sex with someone a few months away from being the age of consent is far from ideal. It’s frowned upon and it’s something best avoided (being against the law and all).

But it doesn’t have the visceral properties of the word rape. It doesn’t carry the same weight of expectation. In fact it’s a much more palatable way to describe the actions of a person who people are unwilling to see in an unfavourable light.

And at the end:

Men who have sex with fifteen year old girls are having sex with children. Men who have sex without consent are rapists. It’s a harsh, simple truth.

This is the extent of her foray into legal argument. The rest is discussion of what people think about rape victims, and that’s perfectly fine and I shan’t criticize it here. The problem is that almost every word in her assertions about the criminal law of England and Wales is wrong.

For a start, there is no such thing as “statutory rape” in this country, and nor is there any such thing as an “age of consent”, at least not as Rebecca Reid appears to understand it. Having sex with a 15-year-old does not constitute rape, unless the 15-year-old is not consenting. The law is not that blunt. All cases relating to a lack of a when the victim is aged 13 or older are dealt with under sections 1–4 of the Sexual Offences Act 2003, just like offences against adults; here, consent does play a role. If the victim is consenting and they are aged 13 or older, the specific child sex offences of sections 9–15 enter into play, none of which constitute rape.

What is crucial to recognize are the following points:

  1. In English law, having sex with someone aged between 13 and 16 is not automatically rape. It is entirely possible for a putative victim to consent to sex when they are aged 15. The offences of which the other party can be guilty are very specifically defined, carrying names like “sexual activity with a child”. Crucially, the statute never uses the language of rape to define these offences.
  2. All of these specific child sex offences offer the defendant a way out: if he reasonably believed that the child was aged 16 or older, he is not guilty of an offence (see, for instance, s.9(1)(c)(i) of the SOA 2003).
  3. The only stage at which neither the child’s consent nor a reasonable belief in them being aged 16 or older are engaged is when the victim is younger than 13. At that stage, as sections 5–8 make extremely clear, the questions of consent and reasonable belief simply never arise: the sexual activity with the child is illegal regardless of the victim’s and defendant’s respective states of mind.

Indeed, this represented a serious problem for the judiciary when the House of Lords considered the case of R v. G [2008] UKHL 37, where a 15-year-old boy was convicted of the rape (note the specific language) of a 12-year-old girl. The girl in question had, it was clear, pretended she was 16 (though the Appellate Committee drew no conclusions on whether this was realistic or not): what the defendant objected to was being convicted of a crime that carried the word ‘rape’ without having the victim’s purported age and apparent consent even considered by the court. In the end, the clear words of the Sexual Offences Act 2003 won out, and the conviction was upheld.

So these words really do matter, because being convicted of a crime like rape has social consequences far worse than similar crimes of different names (and, in my view, rightly so). What Rebecca Reid’s article does is import a specific feminist conception of the word ‘rape’, that may well be perfectly reasonable, and use it to give a false depiction of the current law of England and Wales. This is disgraceful. Had she even bothered to read the first few sections of the governing statute in this context, she would have been able to tell that her characterization of the law was wrong in almost every respect. I hope she writes a follow-up article that illustrates just how wrong she is.

When people talk about ‘statutory rape’ and the ‘age of consent’ they are generally extremely wrong about the criminal law of England and Wales: further muddying of the waters should not be tolerated by anyone who knows anything about this area. If you want to define anyone having sex with a 15-year-old as a rapist, you are welcome to try, but get it through Parliament first: don’t abuse these very specific terms for your own purposes.

A note of caution, by the way. As I said, these questions really matter. Characterizing 15-year-old girls as being unable to consent at law is such an incorrect statement of the law that it could be perceived as being highly prejudicial, or libellous: most cases of this nature turn on whether the defendant’s belief that the child was aged 16 or older was reasonable or not, and to imply that that question does not arise is to imply that the defendant is inescapably guilty. If I were Adam Johnson’s lawyers, I’d be taking extremely careful note of everything Rebecca Reid has said – and seeking to find out just how many people have read this shameful piece of pseudolegal trash.

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