British woman faces death sentence

Should it be one law for “us” and another for “them”?

A British woman, Shivaun Orton, has been arrested in Malaysia for possession of drugs including cannabis, amphetamines and Ecstasy. The drugs were found when police raided the backpacker resort that she and her Malay husband run in the east coast town of Cherating. As the haul included over 15g of heroin, she faces death by hanging if convicted.

It cannot be long before the inevitable cries of outrage that a British national, the "daughter of a nuclear physicist" no less (code: she's middle-class, not some ill-educated scrubber with loose morals with whose fate the right-wing papers would be less concerned), might suffer such a fate.

No doubt the possible penalty, and by extension Malaysia, will be described as "barbaric" and "medieval", and every instance of courts in the country producing ludicrous, over-the-top judgments will be dredged up and presented as the norm, rather than the exceptions that they are. Oh, and there will also be no misgivings at all about the prospect of her husband receiving the same sentence.

I touched on this issue last year when two US citizens were freed from a North Korean jail after crossing the border illegally and when a convicted drug-smuggler, Samantha Orobator, was allowed to return to the UK from Laos to serve the rest of her sentence. As I wrote at the time:

The coverage of these cases, as so often when westerners are arrested in developing countries, focused almost exclusively on outrage at the conditions in which they were held and the sentences they faced. The garb of human rights hid a less pleasant, unspoken assumption: your laws shouldn't apply to us.

Even though, as I pointed out, "few will dispute that a state has the right to police its borders or impose penalties for drug trafficking . . . many westerners seem to think, 50 years after losing their empires, that they should still have carte blanche to wander the earth held to a different set of rules from those of the populations they deign to visit." Two examples then followed:

Singapore's former prime minister Lee Kuan Yew made this point well in his memoir From Third World to First. "In 1993, an 18-year-old schoolboy, Michael Fay, and his friends went on a spree, vandalising road and traffic signs and spray-painting more than 20 cars. When charged in court, he pleaded guilty and his lawyer made a plea for leniency. The judge ordered six strokes of the cane and four months in jail."

Such sentences are common in the region; we hear nothing about them. But "the American media went berserk at the prospect of an American boy being caned on his buttocks by cruel Asians in Singapore", said Lee. Suggestions were made that the first ministerial meeting of the World Trade Organisation be moved from Singapore over this "barbarity".

The second example is particularly relevant to the Shivaun Orton case:

"Barbaric" was the very word bandied about by the Australian premier Bob Hawke when Malaysia hanged two of his countrymen for drug trafficking in 1986. But the more telling view was that of one of the defendants, Kevin Barlow. "Do you reckon they'll hang us?" asked his co-defendant, Brian Chambers. No, replied Barlow. "The Malaysians won't hang white guys."

Exchange the word "white" for "western" and you have, it seems to me, the real truth behind the protestations whenever one of our nationals gets banged up abroad for doing something they know they shouldn't have done. It's OK for them, but not for us.

As it happens, I don't think Mrs Orton will be hanged if she's found guilty – partly because she's a woman and the mother of two boys, and partly because the current prime minister, Najib Tun Razak, does not share the desire to take every opportunity to upset western sensibilities that characterised Dr Mahathir, who was in power at the time of the 1986 case.

Najib is from the old aristocratic, anglophile elite and was educated at Malvern College and Nottingham University. Whereas Dr M would have regarded David Cameron as colonising-class material and would have been very happy to irritate and embarrass him, Dato' Sri Najib prefers smooth relations and will not want the bad publicity that would accompany the hanging of a British national. If she is found guilty, pressure from the top will almost certainly result in a lesser sentence.

Perhaps I will be proved wrong. Perhaps the commentariat will decide that UK citizens breaking laws abroad just have to take the consequences, like locals do. If there is an outcry, though, and calls emerge for David Cameron or William Hague to intervene, my question remains the same – how on earth do we justify the expectation that it should be one law for "us" and another for "them"?

Sholto Byrnes is a Contributing Editor to the New Statesman
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How a devolved immigration policy could work in Brexit Britain

London and Scotland could keep free movement, or something close to it. 

Just a few short months after the vote to Leave, Britain and the European Union appear to be hurtling towards confrontation – and mutual self-harm. At the Institute for Public Policy Research (IPPR), we believe that what we need is not “hard Brexit” or “soft Brexit” but “smart Brexit”.

At the moment, too much of the debate is characterised by clinging on to obsessively ideological positions, or attempting to relitigate the referendum because you didn’t like the result. There is far too little serious policy thinking taking place.  

Firstly, we should demand that politicians think again on immigration policy. Recent polling has shown that the country is split on whether to prioritise the economy or immigration control in the negotiations. Given this, it would be reasonable to expect politicians to attempt to accomplish both. Yet politicians on both left and right have marched off to the extremes.

Theresa May has indicated that we are heading towards a one-size-fits-all closed borders system; Jeremy Corbyn has made an absolute commitment to freedom of movement, defining immigration as a problem of austerity economics. Both positions are overly simplistic, unoriginal, and show little regard for our democracy or national interest. We should begin by disentangling the different strands of the immigration debate. 

The referendum exposed three broad contours to the immigration question. The first is that different parts of the country have different interests; the benefits and costs of immigration are not evenly distributed, particularly with regard to jobs. Second, there is an important cultural dimension about consent – expressed as "nobody asked us" – and the pace of change in specific communities. It was striking that the areas with the highest levels of immigration strongly voted Remain; but those with the fastest pace of change voted strongly Leave. Third, that there are public concerns about the impact of immigration on public services and housing.

A devolved immigration system would allow different parts of the country to act according to their (divergent) interests. It could work by using certificates of sponsorship to require employers to specify the place of work and residence of the employees they sponsor; and by setting region-specific quotas for these certificates by sector (and possibly pay level).

Such an approach would better secure our national interest by recognising our regional differences, boost democratic decision-making and so address consent, and go some way to address the impact on public services and housing. It would work for both EU and non-EU migrants. There are international precedents, such as Canada. 

A regional solution

Under this option, different regions would determine their interests and then either set quotas for specific sectors or determine that some or all sectors should have no restrictions, differentiated by EU and non-EU migrants. In sectors which required work permits, employers would need to draw down against agreed quotas. Employers would be required to register a place of work for migrant employees, and ensure that their home address was in a commutable distance from their place of work. For those sectors without restrictions, registration would take place but would not be subject to quotas. It would mean some additional rigidity in the labour force - migrants workers would not be able to be redeployed from one part of the country to another without affecting each region’s quotas. 

The key to such an approach is London. The capital is a huge draw for people from overseas - it would have to decide to sustain free movement for a devolved system to have any chance of being effective. There would simply be too much risk of backdoor entry to London if it were to set quotas. Londoners, like the rest of the country, are split on immigration. Nonetheless, they elected a Mayor who openly supports free movement, London’s globally-orientated services sector benefits strongly from immigration, and voted strongly for Remain. There is every reason to believe that London would decide to continue free movement for EU citizens. 

The crucial step for such an approach to have legitimacy would be to have democratic control of setting work permit quotas. For Scotland, Wales, Northern Ireland, and London, the devolved democratic structures are already in place to make decisions on immigration. Not only did Scotland vote strongly to Remain, when Scottish First Minister Nicola Sturgeon gave her first major post-Brexit speech at IPPR in July, she described the importance of free movement for Scotland. The Welsh and Northern Irish Assemblies are clearly well-placed to make decisions for their parts of the Union. 

Democratic solutions for other parts of the country would need to be bespoke. One approach might be to form “Grand Committees” of existing elected representatives in different regions. These would bring together elected council leaders, the newly-elected Metro Mayors, and Members of Parliament, with voting in an electoral college, determined by population size. They would then consult with the public and employers, examine the evidence, and make the decisions for which the public could hold them to account.   

Goodbye, net migration target

Elected politicians would need to be able to make informed decisions, based on analysis of the skills base and the workforce requirements for sectors in each region. It would be vital to have proper consultation processes with employers and with citizens and communities. 

Such an approach would also require the devolution of the education and skills systems. If employers cannot seek skilled labour from overseas, they will need to be able to secure skilled workers at home. The entity responsible for immigration policy would need to make skills policy, too. 

National immigration policy would be reserved for those areas that are properly national, such as refugee resettlement and asylum policy for those fleeing persecution. By focusing national political choices on matters of principle, it would enable us to have a more moral conversation about our obligations in the world. It would stop us from conflating the people fleeing the terrible destruction in Syria with those looking for a boost to their pay from higher wages in Britain than in Eastern Europe. It might just enable us to begin to act like responsible members of the international community again. We should also embrace what could be termed “cultural free movement”: allowing all EU citizens to visit and to study across the UK visa-free. This would tap into the nobler – and popular – aspects of the European project, and might be used to secured our continuing participation in pan-European scientific research and the Erasmus programme. Immigration controls on the citizens of European countries should be reserved for employment, through work permits.    

It would also require the net migration target to be abandoned, as it is completely inconsistent to have a national net target with devolved controls. This would be a good thing: it would provide political cover to abandon a particularly stupid piece of policy. As IPPR has argued for many years, it makes absolutely no sense to lump together American bankers, Polish builders, and Syrian refugees and count them all as the same. Furthermore, a recent IPPR report concluded that the numbers are probably shoddy anyhow. They simply don't stand up to serious scrutiny. If you believe the official figures, tens of thousands of people get university degrees and then disappear into black economy jobs earning cash-in-hand every year. It’s just not plausible.

So, how can a devolved immigration system help?

Professors and fruitpickers

A devolved immigration system would recognise that different parts of the country have different interests. Strong majorities in London and Scotland have voted for political leaders that openly support free movement of people. In other parts of the country, there appears to be a stronger consensus that free movement is not in their interests. 

The East of England, for example, might conclude that it needed migrants to work in the fields of the fens and to work in research laboratories in Cambridge’s world leading institutions, and place no restrictions on fruit pickers and professors. But it might also decide to set quotas for skilled jobs in light manufacturing, and to direct the skills system to train local workers for those roles instead of opening those opportunities up to migrants. This would mean that the immigration system could be optimised to the interests of different parts of the UK. 

Moreover, a devolved approach would humanise the debate on immigration. It would require practical choices determined by regional needs. It would remind us that migrants are people who do essential jobs like work in our hospitals (I imagine every part of the UK will want to keep the NHS functioning). It would demand that local employers make the case to local politicians. It might just take us away from high level statistics and low level instincts. It would take us from the politics of the gut being fought in the gutter to a more responsible discussion. 

Critics will say that this will end up with free movement in a complex and bureaucratic way. Even if this was the case – it is not clear that it would be – it would mean that people would have decided for themselves that migration was beneficial. Some degree of messiness is inherent in any compromise solution; and the incremental complexities of a devolved rather than national system are marginal. If Britain found its way to free movement by democratic consent rather than by Whitehall diktat, that would surely be preferable. Then, the question, “what have the immigrants ever done for us?” might well receive a Monty Pythonesque response. 

Tackling the pressures

Proper management of immigration means addressing its consequences. In a world where public sector budgets are being cut, services have struggled to cope with demand. Most studies have demonstrated that migrants, in the aggregate, are net contributors to the public purse but that does not take away from the pressures felt locally. Politicians on the left and right have alighted on some common ground in their approach - all major parties support a migration impact fund. Yet a migration impact fund, whilst necessary and useful, is ultimately marginal.  

The real solution must be to address the underlying allocation formulae that create these distributional problems. In addition to his pointless, destructive, and unnecessary reorganisation of the NHS, Andrew Lansley also tampered with the allocation formula that distributes NHS budgets across the country. It was reweighted to increase the significance of age, meaning that areas with more older people received disproportionately more money, while resources were moved away from younger, poorer areas. 

This was an act of grotesque political cynicism. It had the effect of redistributing from poorer typically Labour-voting areas to older, wealthier Tory-voting areas. But the other affect was to shift resources away from places with high immigration, since migrants are typically young themselves and have higher fertility rates. It was a far more significant – and cynical – decision than the abolition of the pitiful migrant impact fund. And so reinventing the migrant impact fund is merely tinkering at the edges.  

Similarly, blaming immigration for the housing crisis is easy but wrong. A large number of new arrivals certainly adds to the pressure. But it pales in significance when compared to our abject failure to build enough houses. Britain has roughly double the population of Canada and yet builds just one-third of the new homes every year. The solution to the lack of affordable housing is to build more homes. No immigration policy is going to solve the housing crisis. 

What are the drawbacks?

A devolved immigration system certainly has some drawbacks, both in substance and implementation. As with any sector-based approach to immigration, there is a risk of getting the numbers wrong resulting in skills shortages for employers, or putting firms off from investment by creating uncertainty about the labour supply. Those areas that had decided to introduce particularly draconian controls might find that employers decided to move elsewhere. This is no more true than at a national level, as reports from international firms reconsidering their investments illustrate.  

Operationally, it could become complex and bureaucratic. The foolish dismantling of the Government Digital Service has seriously eroded central government’s capacity and capability to do things in an efficient, modern way. As with all immigration systems, people will be tempted to abuse it, and it would need to be robustly policed. Moreover, this system would place greater responsibilities on employers - they would have to face stiffer penalties if they abused – or permitted abuse to take place – the system. Part of the price would be the inevitable steady drumbeat of stories in the xenophobic parts of the press finding people working where they were not registered. But these drawbacks – whilst important – are massively outweighed by the benefits. 

Immigration and the Brexit deal

The international response to the government’s strident signals about immigration control has been fiercely negative. The hostility of tone – verging on xenophobia – was regarded with shock and disgust in many European capitals. The political dynamic between British politicians and their European counterparts has quickly become toxic. We are heading down the path of "Mutually Assured Destruction" (MAD). 

For the most part, European leaders see the EU as an inextricable part of their national interests, which is precisely why its preservation is top of their agenda. Right now, their judgement seems to be that Britain must be seen to be worse off because of Brexit in order to prevent the Exit contagion catching, just as they were determined to punish Greece so that the debt crisis would not spread to Italy, Spain, Portugal and Ireland. After all, as Nigel Farage himself pointed out, there are somethings that are more important that GDP, and most European leaders believe preservation of the EU falls into that category. 

Speaking privately, one European cabinet minister recently told me that his country would be pushing for the “worst possible deal” for the UK because “a good deal for you would cause chaos for us, and even if you were seen to be treated fairly, that would push us towards the exit door”. At present, the mindset is that Britain must be seen to pay a price, and there is a very real risk that the EU forces us to choose between our car industry and our financial services sector. This is yet another reason that we need to be seeking common ground, not pursuing a divisive approach in the country or internationally.  

A devolved immigration system might enable EU leaders to say that free movement had been secured because it would continue in London and Scotland (and possibly in other regions too) along with nationwide “cultural free movement”. Given their fidelity to the principle of free movement, it would still require them to make quite a departure from their existing position. But in a devolved immigration system, we might just find our common ground. That, perhaps combined with paying a hefty fee, might be just about enough to secure our access to the single market and participation in some of its key institutions – vital if we are to be regulation makers rather than takers – or at the very least tariff-free trade for tradable goods and passporting for the City of London. It would certainly be a more attractive offer than us pulling up the drawbridge or being "pro having our cake and pro eating it".

Finally, there is a wider issue at stake here. As we enter into the negotiations, we will need much more smart thinking about nuanced solutions. At the present, our political leaders – on left and right – appear to be spending more time posturing and swaggering than thinking. Our Conservative Prime Minister and recently re-elected opposition leader are sacrificing the national interest on the altar of party management, the perpetual problem in British politics. We should demand Smart Brexit, and we should demand more creative thinking from our government, its leaders, advisers and officials. In this period of turmoil, the British people deserve nothing less.    

Tom Kibasi is the Director of the Institute for Public Policy Research.