As a "natural" radical I have ideas about changing most things about our civic order.  But I shall be resisting the current fashion for modernising" charity law.  Leading commentator Malcolm Dean backs the cause of radical reform, writing in The Guardian. 

• I know I must sound like a fuddy-duddy, legalistic, conservative. And this case is not easy to argue, to a "lay" audience.  But let me try.

There is a key systemic difference between traditional judge-made common law and the written statutory codes of Acts of Parliament.  The difference is one of style, rather than substance - but it is nevertheless of great importance.

• In Common Law systems, the basic principles remain abstract, ideas which  inform the adaptation of the law to changing social circumstance, and which are applied by the Judges to new cases as they arise.  No attempt is made to formulate any overarching verbally-precise "declarations" of the law as a whole, but the coherence of the body-of-principle is tested and re-examined by the entire legal profession, as circumstances change.  Where inconsistencies arise, they are resolved by the most senior Courts, by the most experienced judges.  And such a system is always ready to adapt to change, with far greater flexibility than any system of statutory law. 

   

• In statutory systems, Parliament is effectively "giving written instructions" to the legal profession to behave in a particular way and to apply the written law to new cases as they arise.  Such instructions must be coherent and internally consistent, or else injustice will certainly be done - and there are always examples of that.  And such instructions can only be changed in the same way, by parliamentary legislation - defective laws cannot be modified by the judges, and must await the renewed attention of the lawmakers.  It is a far more rigid system of law.

With one solitary exception (a limited intervention by Parliament, for recreational charities, in 1958) the definition of a charity is a matter of common law, not statute.  Over the last 500 years, the Courts have tussled with the gradual adaptation of the law to changing circumstance. The Victorian era was a great period of charity innovation - animal welfare, child welfare, aesthetic education, abolition of slavery, the libraries of Andrew Carnegie, the "public" schools - all of these changes were regulated by the Courts, without Parliamentary intervention, re-interpreting established principles.  Innovations did not have to wait in a Parliamentary queue: social entrepreneurs could get ahead, working within a flexible common law framework, subject to supervision by the Chancery Division of the High Court.  I am keen to retain the inherent flexibility of that style of law.

I do not oppose managerial changes, to ensure the more effective management of all charities, improving the Charity Commission and securing the good name and honourable reputation of the charitable sector - my concern is with the core definition of a charity, and the manner of its constant adaptation, not with ancillary matters of administration.

Nor do I oppose- indeed, I would positively advocate - the formulation of a new statutory code for a new form of public interest company, resembling charities but differing for certain purposes, and performing different functions from traditional charities.  Given modern legislative convention, it is only Parliament that can innovate in this way, and a statutory code would be entirely right. 

• But if we abandon the flexibility of our 500-year old case-law tradition in the charity law sector, we will all live to regret it.

New Labour,
New Brutalism

Few of my fellow-citizens will understand the anguish of being trapped, as a thinking, middle-o'-th-road leftwing radical, within today's Labour Party.  The Party is going through a dark and uncivilised period of its history, with its leaders pandering to the very worst in public opinion, terrified of occupying any principled positions. 

For, to be trapped inside the Party is to be appalled at the amorality of an unprincipled Prime Minister, to be battered by the cultural illiteracy and insensitivity of David Blunkett, to be harassed (as a committed mediaeval historian myself) by the intellectualised thuggery of Charles Clarke, having to observe the pantomine persecution of George Galloway by the hapless Party policeman David Triesman, as well as the spineless subservience of Jack Straw, both to Tony Blair and to George Bush.  Even the honourable Chris Mullin MP has succumbed to the use of prejudiced popular language in his Committee's warning that the UK could be "overwhelmed" by asylum-seekers.  These are dark days for the Labour  Party, even though the fault-lines do not yet show up in the opinion polls.  That is because Labour is merely mimicking, parroting, the brutality of the mob - rather than leading its people.

• The amorality of the Prime Minister is somehow heightened by the sickly overlay of religiosity with which he seeks to endow his deliberations and decisions.  His decision to back Bush on Iraq was based upon his desperation to stay firmly in the Americans' good books. retaining his teacher's pet status.  History will, I believe, demonstrate that this was no more than an act of weak sycophancy, however skilfully embroidered.

• David Blunkett's has become a joke Tory Home Secretary, far worse than Michael Howard in his prime.  He is wrong to demonise asylum-seekers.  He is wrong to demonise the human rights lobby as he does. He is wrong to promote "Britishness" training, and nationalist rituals for the induction of naturalised citizens.  He is wrong to put the judges into straitjackets, for no better reason than political self-aggrandisement - for there is no objective justification for his proposed sentence-legislation.  He is a disaster, for the good name of the Labour Party.

• Charles Clarke - the well-educated son of a knighted senior Civil Service mandarin - has no excuse for the "uncivilised thuggery" (to quote a Cambridge don) of his attack on mediaeval history.  His own education was one of value-free number-crunching (Mathematics, Economics) at Kings College Cambridge.  Mine was in History (particularly mediaeval history) also at Cambridge: I can testify that my mediaeval history studies were the most important of my educational career - difficult, challenging, demanding, inspiring - the techniques and lessons that I learnt there have remained with me ever since.  My specialist subject at Cambridge was Relations between Church & State in France between 1438 and 1484 - that was a very "big" subject indeed, with many ramifications for contemporary Europe.

Charles Clarke kept digging his hole, in a long personal letter-of-defence to The Guardian.  His search for an underlying rationale for the state funding is too collectivist - I say that the rationale is related to the entitlement of each person to approproate necessary support in the pursuit of personal fulfilment - I say that in trying to develop a collectivist rationale he is barking up the wrong tree - check out his letter yourself, in The Guardian

• As for the personal decision of the Labour Party Secretary David Triesman to "suspend" George Galloway, while his libel action is still pending against the Daily Telegraph - that is too awful for words.

I am deeply ashamed that my Party has drifted, without any guiding body of principle, into this haphazard brutality, insensitivity, and illiberality.  The explanation lies partly in the emergence of a professional salariat who - quite literally - rely for their livelihood upon following the mob - and cannot afford to act upon their principles.  It will be long haul back to the kind of decency and sense of fairness and mutual respect of which the Labour Party at its best is capable.