Sunday 23 November 2014

Muffins and brownies

In September last year, I fell head over heels in love. The object of my affection was brown, gooey and delicious. It was located in Foxcroft and Ginger, a cafe in Berwick Street in Soho, which is quite grim at the best of times and is even more grim now that the whole street has been dug up and surrounded by fences. I highly recommend the place, by the way; it has lovely decor and downstairs some quite comfy seating options. 

My love is a chocolate brownie, or, as it is described by them, a chocolate truffle brownie, whatever that is. I genuinely think that no matter what might go on to happen in my life, this brownie will be the love of my life.

But, curiously enough, I haven't had this brownie all that often. Of course, in October last year, I ran off to Hamburg, but I've been back in London almost three months. If I really loved this brownie, surely I would have had more of them in this time?

Today I went back again to renew my vows, so to speak. And it was as wonderful as ever. But it got me thinking. There are some pleasures you repeat again and again; some pleasures you make routine. Routine has a bad name, but the fact that something is routine doesn't mean it's not incredible every single time you do it.

I can think of two pleasures in my life that to me did become "routine". Both of them are muffins: namely, the blueberry muffins at Caffe Nero and the chocolate muffins at the shitty uni cafe underneath my workplace in Hamburg. As a matter of full disclosure I have had a fling with another brownie, the ones they have at Harris and Hoole, but they sort of fell between the Foxcroft and Ginger brownie and these muffins, so lets just keep the muffin/brownie distinction as a matter of rhetoric.

When I was at Oxford I spent an inordinate number of hours in Caffe Nero, mainly studying but when not studying, digging into these blueberry muffins. I know it's not cool these days to recommend a chain for anything at all, but you really must have one or many of these muffins. They're so soft and yet tough enough that they don't crumble immediately. They are delicious. They don't taste artificial but they don't take purely like fruit: the muffin and the blueberry are perfectly at one.

My Hamburg routine muffin was less perfect but no less addictive. It just have been the fact that after work there's nothing better than just curling up with a coffee and pastry and relaxing. Admittedly the coffee in this place was disgusting, but that didn't stop me going back again and again for the chocolate muffins. Again, the texture was spectacular. There was a time towards the end of my stay in Hamburg when I realised my muffin consumption was getting out of hand, and I stopped for a while, before crawling back to UniPark in shame.

What made the muffins different from the brownies? Of course muffins are normally softer and more palatable than brownies, but this isn't always the case: the Foxcroft brownie is exceptionally soft, while the Hamburg muffin was often on the tough side.

I don't think it's anything innate in the distinction between a muffin and a brownie that means that one became an addiction and the other was reserved for a very rare treat.

I think there must someone out there addicted to brownies. But I don't think it would be because their palate is more suited to brownies than muffins. After all, as I have expressed at length, I really really like brownies. But it must just be the situations in which those brownie addicts consumed them.

The blueberry muffin from the Caffe Nero in Oxford Blackwells represents a bittersweet moment in my life. I was the most focused I'd ever been in my life, studying for my Finals. I was at my most intellectual, and relaxing in the greatest bookshop in the world, and it was great. Everyone goes a little crazy during Finals, but I'm glad I channelled my craziness into some glorious muffins.

The Hamburg muffin has less of a history, which might be why it doesn't haunt me in the same way. But still, in my less occupied moments adjusting to life in a foreign country, it was good to have one thing certain in my life.

Whereas, the Foxcroft and Ginger brownie was most certainly transient; after all, I was about to leave London. It also wasn't my own. I didn't discover it by chance; it was recommended to me. And somehow that also matters. My favourite place right now is a coffee shop called The Attendant in the rather dull area near Great Portland Street, and I think it is my favourite place because I found it and I went there and I discovered how fantastic the coffee was. (The question of coffee is quite separate from the muffin/brownie debate, of course.)

Anyway, I think that the lesson I just want to draw is that you can't judge the quality of anything in isolation. Yeah, I love brownies. But no brownie can exist in isolation. And I think it's the fact that I have had consistently emotionally resonant experiences with muffins that would make me choose a muffin over a brownie any day of the week. Often in life people tell you have to choose between quick pleasures and long term pleasures. But that's not right. I won't stop getting excited by the blueberry muffin at Caffe Nero. It won't stop being incredible (unless they change their recipe or something). Basically, yes, I can have my cake and eat it.

Monday 17 November 2014

The problem of the undeserving claimant: Sims v Dacorum

When two people rent a house together on a contract that gets renewed every so often (as opposed to a contract that says they're there for a long period of time), they have what's called a joint periodic tenancy. In a 1992 decision ("Monk"), the House of Lords confirmed that if one of the two people wants to leave the house, they can serve a 'notice to quit' on the landlord at whenever the period ends (normally every year, though in the case we're going to consider, every week). 

In a joint tenancy, the two people are seen as one unit. So an action by one of them applies to both of them. This means that even if the other person wants to stay in the house, and even if the other person can continue paying rent, they have to leave if the landlord orders them to leave. In the case of social housing, it might be very rational for the landlord, the local council to tell the remaining person to leave, as they have a duty to house people in appropriate housing and not leave one person living somewhere that can house two people on the waiting list.

The problem is, however, that it's possible for the remaining tenant to be booted out of somewhere they think is their home without having any say themselves. This happened in the Monk case: Mr Monk's girlfriend moved out and served a notice to quit. Mr Monk had no idea she had done this until Hammersmith Council came knocking and told him to leave his house.

Monk was decided before the Human Rights Act came into force. So, in a case that has been working its way up the court system and was decided by the Supreme Court last week, Sims v Dacorum, someone who was being thrown out of his house under the Monk doctrine because his wife left him, a Mr Sims, has done what people do these days and claimed that Dacorum Council was breaching his human rights. He argued that they were breaching his right to respect for his home under Article 8 of the European Convention on Human Rights and his right to peaceful enjoyment of his possessions under Article 1 of Protocol 1 of the Convention ("A1P1").

The question before the Supreme Court was whether they should use the Human Rights Act to effectively overturn Monk. And you can see how good hearted liberal people like me might be in favour of that: under the doctrine, people can be thrown out of their homes just because their partner walked out on them, and they have no say over it.

The problem is that Mr Sims was not an innocent party. The court found that he had committed acts of domestic violence and his wife, Mrs Sims left him because of that. She only served a notice to quit because she needed to in order to enter a women's refuge. 

Furthermore, from a legal perspective on the facts, Mr Sims clearly had no case. His contract with the council explicitly said that he could be evicted if the situation that came to pass occurred. He therefore had no "possession" that the council were disturbing his right to peaceful enjoyment of. Although they were evicting him from a home he had lived in for several years, another clause of the contract said that they had a duty to consider keeping him there or finding him alternative accommodation, they had given him the opportunity to raise his case, and the court found it was proportionate to evict him (given that council housing resources are limited etc.) and therefore they didn't breach Article 8.

The judgment of Lord Neuberger on behalf of the whole court is beautifully brief and brutal. Given that the case was fairly open and shut, you can tell he sounds exasperated that he had to waste his time on Mr Sims. And he is probably right.

For people like administrative law professors (and me) who wet their pants at every single human rights case, however, the Supreme Court judgment must have been deeply disappointing, in that it did not truly engage with the question of whether Monk conflicts with the European Convention, that is, whether human rights law can effectively overturn the orthodox way of thinking about co-ownership of property.

In the English legal imagination we conceptualise two people renting a flat together as one person, rather than two people renting half the house each. There are very sound reasons for this, namely that both people can occupy all of the house at the same time: we don't need to say one person owns one floor and the other person the other. But that's not really how those people themselves view the situation. They both live in the house, but they don't see themselves as forming one unit living in the house.

The Supreme Court's judgment restates the logical conclusion of the 'joint tenancy' idea, and as an orthodox kind of guy I wholly agree with it on that basis. But the Supreme Court was so caught up in finding the right legal solution that they did not think that the law should be rethought. The facts of the case meant they didn't need to, but that is why it is the facts of the case that are the most regrettable thing about it.

The Court reiterated an opinion they had expressed in a 2010 case, Pinnock: if a council is thinking of evicting someone, they have to make sure they are acting proportionately with the person's right to a home (although in Pinnock itself the Court accepted the council's case for eviction). But the problem in the Monk situation is that you can argue that a council shouldn't necessarily be thinking about evicting people just because their partner walked out on them. Of course they then have to apply proportionality. But it is certainly arguable that the question shouldn't arise in the first place. 

Mr Sims actually dropped this line of argument in the Supreme Court (in the Court of Appeal he said Monk should be overruled): he said the application of the rule was wrong, not the rule itself. But the application of the rule was clearly right in his case. It is the rule that is more dubious.

This whole situation very clearly highlights a fairly problematic flaw in the common law system: rules only change when the right case comes along to change them. We could hardly expect the Court of Appeal and the Supreme Court to look kindly on the case of a man who forced his wife and two of his kids out of his house and lost his tenancy only because his wife couldn't otherwise enter a women's refuge. 

But having decided this case, how much longer will it take for a deserving or an arguable case to come along for the Supreme Court to reconsider the rule in Monk? How many more evictions have to take place? Certainly, the evisceration of legal aid will make it much harder even to test the proportionality of these council decisions in court, let alone get rid of the councils' prima facie powers.

I wholly understand the principle behind the joint tenancy idea, and I wholly agree that the logical legal consequence of it is the rule in Monk. Lawyers have to work according to the logic of the law and not its practical consequences, even if in some situations this means pain for some people.

However, the whole point of the human rights 'industry', even if I might feel uncomfortable about it, is to be able to change laws that have bad effects. But it only works if you have deserving claimants who can bring cases. It is sad that the number of people able to bring cases is declining. It is sad that Mr Sims had to fight the bad fight against the decision in Monk. It is of course sad that Parliament is not figuring out a way to sort out situations like this, at least in a less brutal way.

I make no particular proposals for reform since I am fairly unsure how it might be sorted out. It might even be the case that most people this affects are not affected too seriously, and therefore there should be no reform.

But Sims v Dacorum shows us that to achieve reform through the common law courts, the broad mass of 'victims' have to get lucky with who they get to represent them. It is very unclear that this itself is fair. But it is extremely unfair that in this situation, the 'victims' of the rule in Monk had a man like Mr Sims as their champion.

Sunday 9 November 2014

Why I supported Ed Miliband

The summer of 2010 seems like a lifetime ago. It seems like a different world, almost. There have been so many ups and downs since then and I am a completely different person. As a young person you spend so much time looking to the future that on the rare occasions you look back it's a shock at how much has happened.

The summer of 2010 did not feel, at the time, like a great time to be a member of the Labour Party. Obviously political rivalries and arguments don't matter. The really important things in life are things that even politics touch only tangentially: love, family, adventures. But it really did feel that to be a member of the Labour Party at that time you had to decide, and the question was vital. Were you on one side or the other? Were you with David or with Ed?

Although David Miliband would have been a massive disappointment to his supporters on the right wing of the Labour Party, the fact was that he had the support of those people who believed what, in my mind, was a totally mad idea. That the Labour Party lost the 2010 election because Gordon Brown abandoned Blairism, didn't hand over our public services to enough private providers, and refused to hike VAT or agree with Tory spending plans.

The Labour Party lost the 2010 election for many reasons. The recession. The fact that even before the recession, living standards had been flatlining for years. Gordon Brown as a leader. The fact that winning four terms in a row is incredibly rare in this country and the wider democratic world. 

We also lost votes because of immigration and welfare, but it is worth noting that Labour policies on those matters had broad continuity between Blair and Brown: in terms of actual policy, Brown was even probably  'tougher' on those things.

Anyway, we lost votes for a number of reasons. But there is no way that we lost because there weren't enough academies in the country. 

But that was what these people believed in. David Miliband didn't believe in all of it, but with him in charge, they would be in charge. And although of course Labour could have won under David Miliband, I seriously doubted it.

However, the reason I doubted it wasn't really to do with policy. How many people vote on detailed policy? No matter what we said or did, the broad mass of British people would still believe the Labour Party was softer on immigration and worse for the economy than the Tory Party. Those are the stereotypes that have stuck, even through Blair. The other thing they would consistently think is that we were part of the Westminster establishment that spunked their money on bird houses and moats.

The only small thing we could do to tackle this was to have someone as leader who would look different and sound different and be different. And David Miliband looked like a dweeb, sounded like a dweeb and was a dweeb. He was a career politician who talked like politics was a PPE seminar. He didn't look like he understood ordinary people and he didn't look like a confident leader. He would probably use phrases like 'a tsunami of craperoo' Sound familiar?

In the summer of 2010 there were two things I wanted from the leadership contest: to stop the supporters of David Miliband driving Labour into the wilderness (see for example the German SPD for how low the Third Way can really take a party) and to have a leader who felt vaguely normal.

The tragedy of 2010 was that very quickly these two objectives were made incompatible. Somehow we let the media or the unions or MPs trick us into thinking that we could only choose between two brothers. Two brothers! In the party of progress and equality! And while my brother and I look and sound and are pretty different, Ed and David Miliband are basically clones. Yes, Ed ran what apparently passes for a 'left wing' campaign in our narrow political landscape, but again, what matters in a leader isn't so much policy as whether they can be the ambassador for whatever policy the convoluted policy making process of the party churns out. Whether they can turn prose into poetry and back again.

I thought the best of a not great bunch in 2010 was Andy Burnham: although he could have appeared lightweight, he looked and sounded and, despite being a former SPAD, was a vaguely normal person. For what it's worth, with his 'aspirational socialism' he actually had some interesting ideas about how to learn the lessons of both 'old' and 'new' Labour.

But he was quickly sidelined, and we had these brothers to choose from. And therefore I had to choose Ed. Although I wasn't anywhere near as heavily involved as some people, I spent many hours and days campaigning for him. Because the one thing that I contemplated with horror was David Miliband as leader, I campaigned as often and as hard as my schedule would allow.

I loved the Ed Miliband campaign and the summer of 2010, because of the brilliant people I met, the way it was an underdog, grassroots campaign that was slowly gaining momentum, and because it had real passion. And Ed really did motivate us. It sounds incredible now, but when he spoke he spoke human, and he inspired us. I forgot the misgivings I had when I had seen him on TV before, and became a true Mili-believer. I was overjoyed when he won and I thought his first conference speech was great and I rather randomly hugged him at some point during the conference.

Just like Gordon Brown, I genuinely think if Ed Miliband spoke to every voter in the country, he would win in a landslide. 

I don't think there's anything particularly wrong with Labour's current policy platform: we want to do lots of nice things that will improve people's lives in lots of small ways. It's not especially inspiring, but politics can't really be. There are some potentially transformational things in there if everything goes well, but the idea it is some extreme left wing agenda is lunacy. So too is the idea that Ed Miliband doesn't understand aspiration or the lower middle class or whatever. He understands them, he just can't inspire them.

The genius of Tony Blair was to make a rather modest platform sound like a new dawn for Britain. 

People are more cynical after the crash and I doubt any Labour politicians four years out of government could inspire people in the same way.

But dear God, how have we sunk so low? How is Nigel Farage the most inspiring politician in Britain today? It's not like UKIP supporters are out of bounds to us: some polls suggest they believe some fairly left wing things in addition to the whole anti-immigrant thing. But he talks like a real person. There are no easy solutions, and a majoritarian party knows that, but I can't put Labour's message into a snappy soundbite. Vote Labour to raise the minimum wage to £8 by 2020?? What??

The Labour Party has so many good people in it, in touch with their communities, feeding that back to the leadership. We've had four years, it's time to harden that work into a proper platform. I don't care what it is, I just want to be able to say it. I don't want the Labour Party to go left or go right, I just want this ridiculous government out.

I think Ed Miliband will be prime minister. I just can't see where the Tory votes might come from. Are the Tories really going to hold on to all those seats where Lord Ashcroft's polls put them behind? How? Are we going to somehow get Cameron-mania? It's not as if Cameron is Britain's most popular man. The niggling doubts Labour MPs and members are feeling come from the feeling that the majority of British people seem to feel that this man Ed Miliband can't possibly be prime minister. But I just have no idea how he won't be. In a coalition, with a derisory share of the vote, behind the Tories, maybe. And that's something we should be ashamed of. But not PM? No way.

Ed Miliband is a good man. I hope he becomes a great prime minister. But I am so so sad that British politics has come to this and that I played a tiny role in making it happen. I don't think changing leader would cost us the election: it would probably get us the majority that we need to really change things.

More importantly, if we got someone good, we might just be able to put the brakes on the horrific levels of cynicism in British politics existing now and the tidal wave coming when Ed Miliband's minority government carries on cutting public services.

But that's the problem: who is good? The good people we have are either unwilling or divisive.

Sometimes you have to admit you got things wrong. I'm not sorry I helped stop David Miliband. But I feel sad it has come to this. I'm sorry I supported Ed Miliband. I'm sorry we ended up at the point where our only choice was between these people. I'm sorry we have a party dominated by career politicians and insiders.

I just hope we can learn the lessons from this strange period in the Labour Party's history. And they aren't (depending on your taste) 'don't pander to the base' or 'don't be too cautious'. The lesson is 'just try, please, for the love of God, to be normal.'