The guilt trip

A revolution in crime policy is being put forward to ministers in which criminals are encouraged to

A woman sits in a police station. Beside her is the man who tried to rob her of her wallet. He says he is sorry; she is afraid and sceptical. But her assailant looks less menacing now. He has brought his baby and his girlfriend, who tells the victim that she is livid about what her partner did. An accident had stopped him working as a builder, she says. They were short of money, isolated, in despair. The victim accepts that her attacker feels remorse. In the light of this, the judge decides, for the first time ever, not to impose a jail term for robbery. Several years have passed. As far as anyone knows, this man has not committed another crime. Proponents of rebarbative measures will think this story emblematic of a soft-touch system. Others hope that such solutions are a foretaste of justice in Gordon Brown's Britain.

A report published on 8 February suggests a revolution in law and order thinking for the UK, with restorative justice (RJ) at its heart. Law rence Sherman, Wolfson Professor of Criminology at Cambridge University, and his co-author, Heather Strang, have evaluated evidence worldwide for the first time, and come up with conclusions that sound like manna for any crisis-swamped Home Secretary.

According to Sherman and Strang's research in Australia, the US and Britain, RJ has been proved to reduce repeat offending by up to half. It has doubled, or more than doubled, the offences brought to justice by conventional means, has reduced crime victims' post-traumatic stress. And it could slash costs. Controversially, it appears to work better for more serious types of crime.

Restorative justice has been used as an alter native or adjunct to the criminal system from America's death row, where relatives of murder victims speak to condemned perpetrators, to Dudley Zoo, in the case of a gang of youngsters who kicked a wallaby to death. Normally, the victim and the offender meet along with relatives and mediators - often specially trained police officers - who help draw up agreements, designed to allay victims' fears, and chart a course of action, such as drug treatment, that will stop the perpetrator reoffending. The tough-on-crime lobby may shrink from such collegiate problem-solving. But Sherman says: "The main question is what works - not what the bastards deserve. In giving vent to our own temper, we only make things worse."

The number of prisoners in England and Wales is at a record 80,000 and rising. Government sentencing guidelines mean longer jail terms, and the lack of drug treatment, rehabilitation and education contributes to a reoffending rate of 76 per cent. Women and the mentally ill are warehoused in institutions that cannot cater for their needs or safeguard their lives. Self-harm and suicide are rife, and 29 young boys have died behind bars since 1990. Apart from Luxembourg, Britain is the most intensive jailer in western Europe, squandering money and humanity to scant avail. Though crime is falling, with murder down 15 per cent for 2005 if you exclude the 7 July bombings, the public has rarely felt less safe.

In this climate, a mood in favour of RJ has been building. The Archbishop of Canterbury called for its adoption in his Prison Reform Trust lecture at the beginning of this month, and many judges, including the former Lord Chief Justice Harry Woolf, are vocal champions. Rob Allen, director of the International Centre for Prison Studies at King's College London and a member of Sherman's steering committee, says: "The current crisis in the Home Office clearly exposes the limits of relying simply on punishment to solve complex social problems. Properly resourced and led, restorative approaches promise a more productive way of tackling the harm alongside, and in some cases instead of, conventional criminal justice."

Researchers' randomised trials produced some startling results, notably among North umbrian teenage girls in trouble with the police. Half had an RJ conference; the others went into the criminal justice system. The RJ group of poor, violent white girls proved twice as likely to stay clear of trouble. Judging by the findings, the RJ conferences prevented 71 crimes for every 100 offenders.

RJ appears to work better with more serious crimes, such as robbery, than with victimless offences such as shoplifting. Researchers think that violent offenders may be persuaded to change their ways after realising how much grief they have caused victims, who are often similar to them. Sherman believes that crimes of high emotion may lead to greater remorse. For him, the single most potent argument for RJ is that it is much more likely to bring offenders to justice than a criminal system in which cases routinely fail for lack of witnesses or proof. But the rule of law, whether enshrined in sharia or the English statute book, has a cautious relationship with informal solutions.

Early evangelists

Will Brown allow Britain's criminal justice system to be revolutionised on his watch? The Treasury was one of the first evangelists for RJ. Eight years ago, when the Home Office turned down a request for funding, one of the Chancellor's staff seized on the idea and offered funds.

Later, the Home Office relented, offering modest amounts. RJ gained a toehold, especially in youth justice, but the biggest slice of a £4.9m government grant went into testing the system on adult burglars and robbers, who met their victims at conferences held in London prisons. All the offenders went on to be sentenced at Crown Court, where the judge was made aware of any remorse, explanations or apologies offered.

These conferences were held in the presence of high-profile onlookers. The cream of the judiciary and ministers, including the Attorney General, watched an extraordinary experiment in justice. As the only journalist allowed to sit in, I saw the meeting at Pentonville Prison between a drug-addicted burglar and his victim, an elderly Turkish widow. Maria dared not leave her front room, where she slept on the sofa with a knife beside her. Her daughter and her son, a City lawyer, had had to sacrifice their independence and return home to care for their mother. Alexi, who had wandered into someone else's kitchen in search of money for a fix, had ruined a family's existence. He promised to go straight, and perhaps he did. His victim, faced with a needy wastrel rather than the monster of her imagination, had got her life back.

When the conference ended, amid tears and rapprochement, it was as if a seance had been ruptured. Back at the Home Office, an even sharper awakening was in store. Despite pleas by some judges, funding for the project was wound down, excellent police teams were disbanded, RJ lost its showcase, and victims - the undisputed beneficiary of restorative solutions - had a potential lifeline removed. Two years have passed, and critics talk of "the dead hand of the Home Office".

RJ is not short of cheerleaders. Charles Pollard, the former Thames Valley chief constable, says the Sherman report "quashes the idea of a fluffy solution in which offenders get off lightly. This is hard-edged research, and it [RJ] is a no-brainer." The Esmée Fairbairn Foundation, which funded the study's publication by the Smith Institute, has been a pioneer in the promotion of RJ. So has Cherie Booth. She told me, some time ago, that the government should do more. "If the evidence shows it [RJ] is successful, in particular in helping cut reoffending, I believe it could boost confidence in the criminal justice system."

Now that some hard evidence is on hand, could the Prime Minister's wife and the Chancellor, whose relationship is famously glacial, find a concordat in endorsing an alternative, if fallible, justice system? Enver Solomon, deputy director of the Centre for Crime and Justice Studies, warns that, despite its "distinctive benefits for offenders and victims", it should not be seen as "a magic bullet".

Despite widespread enthusiasm, some leading figures in criminal justice are said to be even more sceptical. And where RJ appears to work, important questions remain. When should it be used instead of court proceedings, rather than as a supplement? How can vulnerable offenders keep promises to stay off drugs or drink if they cannot get good treatment? What kinds of crime should RJ deal with? Canada reports success in domestic violence cases, and Strang and Sherman cite a successful Australian case in which a man who tried to kill his girlfriend's alleged rapist was dealt with through RJ rather than the courts.

Powerful drug

There are still many mysteries as to why restorative justice works (or fails to work), and when, and on whom. Sherman and Strang concede that there is much work to do. Their report calls it "a powerful drug which needs to be carefully tested for specific kinds of cases before it is put into general practice".

The next step, they say, is to expand their research and run it to scale. Last month, King's College criminologists sent Brown a paper recommending a Restorative Justice Board, similar to the Youth Justice Board, and possibly annexed to a new Ministry of Justice. The projected cost for a board plus an RJ roll-out over the three financial years from 2008 to 2011 is £71m, £221m and £317m.

Treasury insiders say Brown has doubts about investment in such a major expansion. What works on a small scale may not, in his view, be replicated. In addition, the Chancellor is at pains to stress his "toughness". Some criminologists believe that, on criminal justice, you could not slip an Asbo between Brown and Blair. None the less, those close to the Chancellor say he is instinctively sympathetic to RJ as well as to its close cousin, community justice.

RJ is likely to appeal to him on two levels. The first is that a justice system re-rooted in humanity, compassion and mutual understanding fits with his championing of the good society and his targeting of "hearts and minds". The second imperative is cost. The Treasury has been reluctant to bankroll John Reid's eye-wateringly costly plans to build his way out of the jail crisis. It costs £35,000 a year to keep each offender behind bars at present, and RJ could yield substantial savings. So far, the evidence of success is modest, but growing numbers of criminologists, police officers and sentencers are arguing that the government must now build on the first worldwide evaluation of its benefits.

If Brown can be persuaded, then justice could face the most radical upheaval in memory. Assuming the proponents of RJ are right, the shift could begin to empty prisons, reduce reoffending and halt the criminalisation of children. The promises are not underwritten, but the alternatives are demonstrated every week by a criminal system in free fall. The question is not so much whether Brown dares take up the challenge of restorative justice. It is whether he dares not to.

The international experience
Research by Sophie Pearce

In Northern Ireland restorative justice (RJ) was legally enforced in the Justice Act 2002, in the form of "youth conferencing" for young offenders. A study of 185 meetings found that 85 per cent of victims received an apology they were satisfied with from the offender. Northern Ireland also has community restorative justice (CRJ), which is used to address low-level crime and neighbourhood disputes. The recidivism rate for the 400 cases dealt with by CRJ each year is estimated to be as low as 8 per cent.

RJ has also been successful in curbing crime in Australia and the US. In Canberra, recidivism fell by 84 per cent when offenders under the age of 30 were assigned RJ, while the number of offences brought to justice rose by 75 per cent for adolescent shoplifters and 45 per cent among violent offenders under 30. In Indianapolis only 15 per cent of violent offenders subjected to RJ reoffended within six months, compared to 27 per cent of those given standard punishments.

However, specific groups have shown discrepancies. Recidivism among Aboriginal youths and drink-drivers in Canberra actually rose when RJ was applied, and in Pennsylvania, young people arrested for theft were found more likely to reoffend if given RJ. None the less, in all these cases the samples were deemed too small to be conclusive.

This article first appeared in the 12 February 2007 issue of the New Statesman, Sunni v Shia

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The English Revolt

Brexit, Euroscepticism and the future of the United Kingdom.

English voters have led – some would say forced – the United Kingdom towards exit from the European Union. Was this an English revolt, the result of an ­upsurge over decades of a more assertive, perhaps resentful, sense of English identity? At one level, clearly so. Surveys indicate that individuals who most often describe themselves as “English”, and regions where this is common, were more inclined to vote Leave on 23 June. Some of these are poorer regions where marginalised people think that their voices are more likely to be heard in a national democracy than in an international trading bloc, and for whom patriotism is a source of self-respect. But it would only make sense to regard Leave as essentially an English reaction if discontent with the EU were confined to England, or specifically linked with feelings of Englishness.

In fact, negative opinions about the EU, and especially about its economic policy, are now more widespread in other countries than they are in England. Polls by the Pew Research Centre last month showed that disapproval of the EU was as high in Germany and the Netherlands as in Britain, and higher in France, Greece and Spain. Though aggravated by the 2007-2008 crash and enforced policies of austerity, a decline in support was clear earlier. France’s referendum of May 2005 gave a 55 per cent No to the proposed EU constitution after thorough debate, and a now familiar pattern emerged: enthusiastic Europeanism was confined to the wealthiest suburbs and quarters of Paris, and the only professional groups that strongly voted Yes were big business, the liberal professions and academics.

Going far beyond the atavistic and incoherent English revolt that some think they discern, our referendum result is partly a consequence of transnational political phenomena across the democratic world: the disaffection of citizens from conventional politics, shown by falling turnouts for elections, shrinking party membership and the rise of new, sometimes extreme political movements; as well as the simultaneous detachment of a professional political class from civil society, and its consequent retreat into a closed world of institutions.

The EU embodies these phenomena in uniquely acute form. In several cases its central bodies have opposed – or, if one prefers, have been forced to deny – democratically expressed wishes. In Greece and Italy, the EU has enforced changes of government and policy, and in Denmark, Ireland and the Netherlands it has pressed countries to ignore or reverse popular referendums. Its own representative body, the European Parliament, has gained neither power nor legitimacy. Crucial decisions are taken in secret, making the EU a hiding place for beleaguered politicians as well as a source of lavish financial reward for insiders. In the words of the historian John Gillingham, Europe is now being governed by neither its peoples nor its ideals, but by a bank board. This is not the “superstate” of Eurosceptic mythology. Though it drains power and legitimacy away from national governments, it is incapable of exercising power effectively itself, whether to cope with short-term emergencies such as an inflow of refugees, or to solve chronic failings such as the creation of mass unemployment in southern Europe. The result is paralysis, the inability either to extricate itself from failing institutions or to make them work.

If popular discontent with the EU continues to increase (and it is hard to see how it could not) sooner or later there will be some unmanageable political or social crisis. The response of too many supporters of the EU is to screw the lid down tighter, including now by promising to make life difficult for the United Kingdom, pour décourager les autres. This is the organisation – unpopular, unaccountable, secretive, often corrupt, and economically failing – from which our decision to depart apparently causes people to weep in the streets.

***

Why this decision? Why in Britain? The simplest and perhaps the best answer is that we have had a referendum. If France, Greece, Italy and some other countries had been given the same choice, they might well have made the same decision. But of course they have not been and will not be given such a choice, barring severe political crisis. This is most obviously because countries that have adopted the euro – even those such as Greece, for which the IMF has predicted high unemployment at least until the 2040s – have no clear way out.

I make this obvious point to emphasise that the immediate explanation of what has happened lies not only and not mainly in different feelings about the EU in Britain, but in different political opportunities and levels of fear. The contrasting votes in Scotland and Northern Ireland have particular explanations. Scottish nationalists – like their counterparts in Catalonia – see the EU as an indispensable support for independence. Northern Ireland sees the matter primarily as one affecting its own, still tense domestic politics and its relations with the Republic. In a European perspective, Scotland and Northern Ireland are the outliers, not England and Wales. Indeed, Scotland’s vote makes it stand out as one of the most pro-EU countries in Europe. If ever there is another referendum to see whether Scots prefer the EU to the UK, it will show whether this level of support for the EU is solid.

If England is exceptional, it is not in its disaffection from the EU, nor in the political divisions the referendum vote has exposed (if France, for instance, had such a vote, one could expect blood in the streets). Rather, its exceptional characteristic is its long-standing and settled scepticism about the European project in principle, greater than in any other EU country. Every ­member has a specific history that shapes its attitude to the theoretical idea of European integration. As John Gillingham, one of the most perceptive historians of the EU, describes its beginnings: “to the French [supranationalism was] a flag of convenience, to the Italians it was preferable (by definition) to government by Rome, to the Germans a welcome escape route, and to the Benelux nations a better choice than being dominated by powerful neighbours”.

Subsequently, for the eastern European states, it was a decisive step away from communist dictatorship, and for southern Europe a line drawn under a traumatic history of civil conflict. There is also a widespread belief, powerful though fanciful, that the EU prevents war between the European states. All these are important reasons why there remains considerable support for unification as an aspiration. But all these reasons are weaker, and some of them non-existent, in Britain, and especially in England. The simple reason for this is that Britain’s experience of the 20th century was far less traumatic. Moreover, during that time loyalty to the nation was not tarnished with fascism, but was rather the buttress of freedom and democracy. Conversely, the vision of a European “superstate” is seen less as a guarantee of peace and freedom, and rather as the latest in a five-century succession of would-be continental hegemons.

Given all this, an obvious question is why the United Kingdom ever joined in the European project in the first place. The answer helps to explain the country’s subsequent lack of enthusiasm. Its first response to the creation of the European Economic Community in 1957 was not to join, but to agree to establish a separate European Free Trade Association (Efta) in 1959 with Austria, Denmark, Norway, Portugal, Sweden and Switzerland; over the next three decades the seven founder members were joined by Finland, Iceland and Liechtenstein. This worked efficiently, cheaply and amicably, and, in time, Efta and the EEC would doubtless have created trading arrangements and systems of co-operation. But then the historic mistake was made. Efta was considered too small to provide the diplomatic clout craved by Whitehall at a time of severe post-imperial jitters. A cabinet committee warned in 1960 that “if we try to remain aloof from [the EEC] – bearing in mind that this will be happening simultaneously with the contraction of our overseas possessions – we shall run the risk of losing political influence and of ceasing to be able to exercise any real claim to be a world Power”.

Besides, Washington disliked Efta as a barrier to its aim of a federal Europe, and the Americans put heavy pressure on London to apply to accede to the Treaty of Rome, which it duly did in August 1961. “It is only full membership, with the possibility of controlling and dominating Europe,” wrote an optimistic British cabinet official, “that is really attractive.”

As the former US secretary of state Dean Acheson (one of the early backers of European integration) put it, in a now celebrated comment in December 1962: “Great Britain has lost an empire, and has not yet found a role. The attempt to play a separate power role . . . apart from Europe . . . based on a ‘special relationship’ with the United States [or] on being the head of a ‘Commonwealth’ . . . – this role is about played out.”

Acheson’s words long haunted British policymakers; perhaps they still do. And yet Britain remains one of the half-dozen strongest and most assertive states anywhere in the world, just as it has been for the past three centuries.

To fear of diplomatic marginalisation was added fear of economic decline. A government report in 1953 warned of “relegation of the UK to the second division”. Over the next 30 years there was a chorus of dismay about “the sick man of Europe”. Belief that EEC membership at any price was the only cure for Britain’s perceived economic ills became the orthodoxy in official circles: Britain was “the sinking Titanic”, and “Europe” the lifeboat.

So, on 1 January 1973 Britain formally entered the EEC with Denmark and Ireland. Other Efta members remained outside the Community – Switzerland and Norway for good. Harold Wilson’s 1975 referendum on whether to stay in the EEC in effect turned on Europe’s superior economic performance – which, though no one realised it at the time, had just ended.

This memory of apparent British economic weakness half a century ago still seems to weigh with older Remainers. Yet it was based on a fundamental misconception: that European growth rates were permanently higher than in a supposedly outdated and declining Britain. In reality, faster growth on the mainland in the 1950s and 1960s was due to one-off structural modernisation: the large agricultural workforce shifted into more productive industrial employment. From the mid-1940s to the early 1970s this gave several European countries “windfall growth” at a higher rate than was possible in Britain, which since the 19th century had had no large agricultural sector to convert. By the early 1970s, once that catching up was finished, European growth rates became the same as, or slightly lower than, Britain’s. When measured over the whole half-century from 1950 to 2000, Britain’s economic performance was no different from the ­European norm. By the mid-1980s, growth was faster than in France and Germany, and today Britain’s economic fundamentals remain strong.

Slower European growth lessened the perceived attractiveness of EU integration. In 1992, on Black Wednesday (16 September), hesitant participation in the European Exchange Rate Mechanism led to forced devaluations in Finland, Sweden, Italy, Spain and, finally, Britain. This was a huge political shock, though an economic boost.

Black Wednesday subsequently made it politically difficult for Britain to join the eurozone – allowing us a narrow escape, attributable more to circumstance than to policy, as vocal political and economic lobbies urged joining.

Moreover, Britain’s trade with the rest of the EU was declining as a proportion of its global activity: as Gordon Brown observed in 2005, 80 per cent of the UK’s potential trade lay outside the EU. The EU’s single market proved not very effective at increasing trade between its members even before the crash of 2007-2008, and prolonged austerity thereafter made it stagnant. Consequently, in the 2016 referendum campaign, more emphasis was placed on the dangers of leaving the single market than on the precise benefits of being in it.

But the days when Britain seemed the Titanic and Europe the lifeboat were long gone. On the contrary, Britain, with its fluid and largely unregulated labour market, had become the employer of last resort for the depressed countries of the eurozone. The sustained importation of workers since the 1990s had become, for a large part of Britain’s working class, the thing that most obviously outweighed whatever legal or economic advantages the EU might theoretically offer.

***

What galvanised the vote for Brexit, I think, was a core attachment to national democracy: the only sort of democracy that exists in Europe. That is what “getting our country back” essentially means. Granted, the slogan covers a multitude of concerns and wishes, some of them irreconcilable; but that is what pluralist democracy involves. Britain has long been the country most ­resistant to ceding greater powers to the EU: opinion polls in the lead-up to the referendum showed that only 6 per cent of people in the UK (compared to 34 per cent in France, for instance, and 26 per cent in Germany) favoured increased centralisation – a measure of the feebleness of Euro-federalism in Britain.

In contrast, two-thirds wanted powers returned from the EU to the British government, with a majority even among the relatively Europhile young. This suggests a much greater opposition to EU centralisation than shown by the 52 per cent vote for Brexit. The difference may be accounted for by the huge pressure put on the electorate during the campaign. Indeed, arithmetic suggests that half even of Remain voters oppose greater powers being given to the EU. Yet its supporters regard an increase of EU control over economic and financial decisions – the basics of politics – as indispensable if the EU is to survive, because of the strains inherent in the eurozone system. This stark contradiction between the decentralisation that many of the peoples of Europe – and above all the British – want to see and the greater centralisation that the EU as an institution needs is wilfully ignored by Remain supporters. Those who deplore the British electorate’s excessive attachment to self-government as some sort of impertinence should be clear (not least with themselves) about whether they believe that the age of democracy in Europe is over, and that great decisions should be left to professional politicians, bureaucracies and large corporations.

Some have dismissed the Leave vote as an incoherent and anarchic protest against “the establishment”, or as a xenophobic reaction against immigrants. Some of the media in Britain and abroad have been doing their best to propagate this view. Yet xenophobia has not been a significant feature of British politics since the 1960s, and certainly far less so than in many obedient EU member states, including France, Germany, Greece and the Netherlands. As for the anti-establishment “revolt”, this emerged when parts of the establishment began to put organised pressure on the electorate to vote Remain. Would-be opinion-formers have hardly covered themselves in glory in recent weeks. They have been out of touch and out of sympathy with opinion in the country, unwilling or unable to engage in reasoned debate, and resorting to collective proclamations of institutional authority which proved embarrassingly ineffective.

Worst of all, their main argument – whether they were artists, actors, film-makers, university vice-chancellors or prestigious learned societies – was one of unabashed self interest: the EU is our milch-cow, and hence you must feed it. This was a lamentable trahison des clercs. The reaction to the referendum result by some Remain partisans has been a monumental fit of pique that includes talking up economic crisis (which, as Keynes showed, is often self-fulfilling) and smearing 17 million Leave voters as xenophobes. This is both irresponsible and futile, and paves the way to political marginalisation.

The Queen’s call for “deeper, cooler consideration” is much needed. I recall Victor Hugo’s crushing invective against French elitists who rejected the verdict of democracy, when in 1850 he scorned “your ignorance of the country today, the antipathy that you feel for it and that it feels for you”.

This antipathy has reduced English politics to a temporary shambles. It is too early to say whether there will be some realignment of the fragments: One-Nation Toryism, Conservative neoliberalism, “new” and “old” Labour, the hibernating Liberal Democrats and Greens, the various nationalists and, of course, the unpredictable Ukip. When in the past there were similar crises – such as Labour’s rift over the national government in 1931, the Liberals’ split over Irish home rule in 1886, or the Tory fragmentation over the repeal of the Corn Laws in 1846 – the political balance was permanently changed.

***

Many Europeans fear that a breakdown of the EU could slide into a return to the horrors of the mid-20th century. Most people in Britain do not. The fundamental feature of the referendum campaign was that the majority was not frightened out of voting for Leave, either by political or by economic warnings. This is testimony to a significant change since the last referendum in 1975: most people no longer see Britain as a declining country dependent on the EU.

A Eurobarometer poll in 2013 showed that Britain was the only EU member state in which most citizens felt that they could face the future better outside the Union. Last month’s referendum reflected this view, which was not reversed by reiterated predictions of doom.

In retrospect, joining the Common Market in 1973 has proved an immense historic error. It is surely evident that we would not have been applying to join the EU in 2016 had we, like Norway or Switzerland, remained outside it. Yet the political and possibly economic costs of leaving it now are considerable. Even though discontent with the EU across much of Europe has recently overtaken sentiment in Britain, Britain is unique, in that, ever since the 1970s, its public has been consistently far less ­favourable to the idea of European integration than the electorate in any other country. Hence the various “opt-outs” and the critically important decision to remain outside the euro.

Now, by a great historic irony, we are heading towards the sort of associate status with the EU that we had in the late 1960s as the leading member of Efta, and which we could have kept. Instead, this country was led by its political elite, for reasons of prestige and because of exaggerated fears of national decline and marginalisation, into a vain attempt to be “at the heart of Europe”. It has been a dangerous illusion, born of the postwar declinist obsession, that Britain must “punch above its weight” both by following in the footsteps of the United States and by attaching itself to the EU.

For some, money, blood and control over our own policy were sacrifices worth making for a “seat at the top table”. This dual strategy has collapsed. In future we shall have to decide what is the appropriate and desirable role for Britain to play in the world, and we shall have to decide it for ourselves.

Robert Tombs is Professor of French History at Cambridge University. His most recent book is “The English and Their History” (Penguin)

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