Helen Kennedy argues that the Magna Carta was influenced by the French. Photo: Pascal Le Segretain/Getty Images
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French Kissing: Helena Kennedy on Magna Carta

As we congratulate ourselves on Magna Carta, let us remember that it came into being 150 years after the Norman Conquest and was probably greatly influenced by the French.

Magna Carta is all about power. During the anniversary celebrations we have had politicians and judges wax lyrical about this important foundation stone in our democracy, which reined in the power of the king and asserted the principle that no one is above the law. Sadly, it is not true. There are still those who seem to enjoy impunity.

The question that immediately begs an answer is whose power now needs constraint. Who seems to enjoy power without much consequence or restraining? Who operates above the law? The straight answer is that arms of governments still act in ways that ignore the law. We saw it when the Snowden revelations showed that our intelligence communications headquarters, GCHQ, was involved in intelligence-gathering that was outside the law.

There are large tracts of British society that are significantly beyond the control of parliament or the courts. In our globalised world, there are many entities that float above the nation state and its legal constraints. This is made possible because law is still largely located within the nation state. The large corporations have been able to surf the globalisation wave much more effectively than governments. So the big question is: how do you restrain or even manage companies and financial bodies that transcend national borders?

The most visible example of our failure to do so is the fallout from the financial crash of 2008. Financial institutions are extraordinarily powerful. What makes them almost untouchable is that they are engaged in activities most people do not understand. They rely on deliberate complexity to defy investigation and accountability, so that British policing and prosecution authorities are not up to the task and most politicians are befuddled by the whole business.

Prosecutions for evasion of tax, the creation of shell companies and the fiddling of interest rates do not happen because the bank processes are impenetrable for most investigators. If you are prepared to go head to head against large banks, you have to be prepared to face an onslaught of resources against you. It is classic abuse of power, where one side has far more information and resources to outgun the other. In these battles, Goliath always wins. We need the will and the funds to make the law effective.

If you look at the global economy, half the world’s largest economies today are not states, but companies. Walmart is the 28th biggest economy in the world. Such companies are able to transcend national law and regulatory barriers. They have the power to make or break economies so there is rarely the political will to take them on.

Most of the greatest challenges facing the world span borders – international terrorism; environmental damage and climate change; trafficking in people, arms, drugs, human organs; financial chicanery and tax avoidance on a vast scale; issues of migration. The very advances in technology and communications that enable markets to function also enable dysfunction and black markets. Then there are the endemic human rights abuses such as violence against women that involve challenges to patriarchy. They are collective-action problems, requiring collective-action solutions. But international institutions and law are still inchoate. We need more collaboration to create systems of law that can confront wielders of power and secure just outcomes. However, too many powerful vested interests stand in the way.

And if western developed nations with comparatively robust legal systems cannot take them to task, what chance have new democracies with fragile legal infrastructure, as well as weak or corrupt government?

Yet, although we know that we have to create effective international law to deal with these problems, there is instinctive suspicion and resistance to courts beyond our borders. We sign up to treaties and international conventions but do our damnedest not to ratify them or whittle away at their edges to soften their impact. Our nation states play fast and loose with international law. We see it in the current political manoeuvring around the European Court of Human Rights, with the Conservative Party declaring in its manifesto that it will withdraw from its jurisdiction. The spectre of foreign courts and foreign justice is an easy prejudice to stir and it will have wretched consequences.

The interface between national law and international law is an area in need of serious work and political commitment or we are destined to chaos and conflict, as well as ever-growing inequality. So, as we watch the spectacle of self-congratulation around Magna Carta, and hear proud claims about this being an English invention, let us just remember that it came into being 150 years after the Norman Conquest and was probably greatly influenced by the French. Miscegenation makes for better law, and if ever we needed some legal cross-border collaboration, we need it now. 

Now read Owen Jones, Melvyn Bragg, Jesse Norman and Tom Holland on Magna Carta

This article first appeared in the 04 June 2015 issue of the New Statesman, The myths of Magna Carta

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In defence of expertise: it’s time to take the heart out of “passionate” politics

What we need is cool logic.

We are living through a bonfire of the experts. During the EU referendum campaign, Michael Gove explained that people had had enough of them. A few weeks later, his fellow Tory MPs took him at his word and chose a relative ingénue to run against Theresa May.

After declaring for Andrea Leadsom in the Tory leadership race, Michael Howard was asked whether it might be a problem that she had never held a position higher than junior minister. Howard, whose long career includes stints as home secretary and opposition leader, demurred: “I don’t think experience is hugely important.”

Even in this jaw-dropping season, that comment caused significant mandibular dislocation. I thought: the next Tory leader will become prime minister at a time of national crisis, faced with some of the UK’s most complex problems since the Second World War. If experience doesn’t matter now, it never does. What does that imply about the job?

Leadsom’s supporters contended that her 25 years in the City were just as valuable as years spent at Westminster. Let’s leave aside the disputed question of whether Leadsom was ever a senior decision-maker (rather than a glorified marketing manager) and ask if success in one field makes it more likely that a person will succeed in another.

Consider Ben Carson, who, despite never having held elected office, contested the Republican presidential nomination. He declared that Obamacare was the worst thing to happen to the United States since slavery and that Hitler may have been stopped if the German public had been armed. Yet Carson is not stupid. He is an admired neurosurgeon who pioneered a method of separating conjoined twins.

Carson is a lesson in the first rule of expertise: it does not transfer from one field to another. This is why, outside their domain, the most brilliant people can be complete dolts. Nevertheless, we – and they – often assume otherwise. People are all too ready to believe that successful generals or entrepreneurs will be good at governing, even though, more often than not, they turn out to be painfully inept.

The psychologist Ellen Langer had her subjects play a betting game. Cards were drawn at random and the players had to bet on whose card was higher. Each played against a well-dressed, self-assured “dapper” and a shabby, awkward “schnook”. The participants knew that it was a game of chance but they took more risks against the schnook. High confidence in one area (“I’m more socially adept than the schnook”) irrationally spilled over into another (“I’ll draw better cards”).

The experiment points us to another reason why we make poor judgements about competence. We place too much faith in social cues – in what we can see. As voters, we assume that because someone is good at giving a speech or taking part in a debate, they will be good at governing. But public performance is an unreliable indicator of how they would cope with running meetings, reading policy briefs and taking decisions in private. Call it the Boris principle.

This overrating of the visible extends beyond politics. Decades of evidence show that the job interview is a poor predictor of how someone will do in the job. Organisations make better decisions when they rely on objective data such as qualifications, track record and test scores. Interviewers are often swayed by qualities that can be performed.

MPs on the Commons education select committee rejected Amanda Spielman, the government’s choice for the next head of Ofsted, after her appearance before them. The committee didn’t reject her because she was deficient in accomplishments or her grasp of education policy, but because she lacked “passion”. Her answers to the committee were thoughtful and evidence-based. Yet a Labour MP told her she wasn’t sufficiently “evangelical” about school improvement; a Tory asked her to stop using the word “data” so often. Apparently, there is little point in being an expert if you cannot emote.

England’s football team is perennially berated in the media for not being passionate enough. But what it lacks is technique. Shortly before Wales played England in the European Championship, the Welsh striker Gareth Bale suggested that England’s players lacked passion. He knew exactly what he was doing. In the tunnel before kick-off, TV cameras caught the English goalkeeper Joe Hart in a vessel-busting frenzy. On the pitch, Hart allowed Bale to score from an absurdly long range because he was incapable of thinking straight.

I wish there were less passion in politics and more cool logic; less evangelism and more data. Unthinking passion has brought the Labour Party to its knees and threatens to do the same to the country. I find myself hungering for dry analyses and thirsting for bloodless lucidity. I admire, more than ever, those with obscure technical knowledge and the hard-won skills needed to make progress, rather than merely promise it.

Political leadership is not brain surgery but it is a rich and deep domain. An effective political leader needs to be an expert in policy, diplomacy, legislative process and how not to screw up an interview. That is why it’s so hard to do the job well when you have spent most of your time in boardrooms or at anti-war rallies.

If democratic politicians display contempt for expertise, including their own, they can hardly complain if those they aspire to govern decide to do without the lot of them. 

Ian Leslie is a writer, author of CURIOUS: The Desire to Know and Why Your Future Depends On It, and writer/presenter of BBC R4's Before They Were Famous.

This article first appeared in the 21 July 2016 issue of the New Statesman, The English Revolt