EDITORIAL : THE GUARDIAN, UK

        

 

Sentencing: Mr Clarke should stay

His comments about rape were foolishly insensitive but the justice secretary should resist opportunist calls for his exit

David Cameron has a right to be annoyed with Kenneth Clarke, but he should back him not sack him. Yesterday, the justice secretary gave what was undoubtedly, in parts, a foolishly insensitive interview on rape sentencing. In trying to correct his errors later he briefly contrived to muddy the waters further, not calm them. He should regret those lapses and should say so plainly. But the political furore which flared throughout much of yesterday – and which was fed by Ed Miliband's call for Mr Clarke to go – was overwhelmingly opportunist and reactionary. It was driven by an unprincipled alliance between the Labour party and the Daily Mail, both of whom are delighted – for opposite reasons – to use any weapon to attack the coalition government, even if it means feeding ever more people into the prison system to no good public purpose and especially if it means pushing a popular and liberal minister out of the government. Yes, some of Mr Clarke's comments were reckless. But his policy on rape is not. And nor are his proposals on sentencing. Both of them are in the public interest. Mr Cameron should stand up for his justice secretary and for the coalition's penal policies.

Mr Clarke comes as a political package deal. He offers strong opinions – liberal on social policy, orthodox on economics, and unfashionably pro-European – which are forcefully and sometimes colourfully expressed. Along with that comes a rare political ability to make a warts-and-all connection with the public. Mr Clarke is more cunning and disciplined than he can contrive to seem, but he is an important reason, perhaps second only to Mr Cameron himself, why the Conservatives did as well as they did in last year's general election. His presence in the coalition matters a lot, as does his political experience. Without him, the Conservatives would appear more of a sect than they do. With him, there is still a runnable liberal argument in favour of the coalition. The government could ill afford to lose him, which is of course why the Mail and Mr Miliband both want him to go.

A word often used in connection with Mr Clarke is "blokeish". This is very much a double-edged sword, as yesterday exposed. Mr Clarke should never have talked about some rapes being serious ones, since to do so implies to women and men alike that some are not. He was wrong to describe legitimate anxieties about early release of rapists as total nonsense. He should not have charged into the definitional pitfall of date rape. And, even though Mr Clarke's departmental life is made hugely difficult by the fear agenda of the rightwing press, it was unwise of him to suggest that the current campaign on rape sentencing was driven by a wish to put sexual excitement into the headlines. There is nothing exciting about rape. No justice secretary should imply that there is.

Mr Clarke was right to stand up for his sentencing policies. Britain sends more people to prison for longer sentences than most countries, and our use of prison can feed rather than frustrate crime. But Mr Clarke is not engaged in trying to push rapists or any other dangerous prisoners out on to the streets. He was right to stress, as the Stern report on rape complaints put it last year, that "attitudes, policies and practice have changed, fundamentally and for the better". He was right that more rape suspects – and suspects of all kinds – should be encouraged to plead guilty, in part because the protection of rape victims from the second ordeal of a court hearing with its sometimes traumatic cross-examination is important. And while rape is indeed rape, and Mr Clarke was silly to dispute it yesterday, it is also right that there is a scale of serious sentences, with aggravating and mitigating factors, which are properly applied to different cases, in rape as in other crimes. In that sense, some rapes are indeed particularly serious. Even so, very few will ever carry any prospect of an offender being released after only 15 months. And rightly so.

Hargreaves intellectual property review: Putting rights right

Professor Ian Hargreaves's proposals would create a less rigid copyright system and encourage innovation by newcomers

"The patent system added the fuel of interest to the fire of genius," according to Abraham Lincoln. His words are apt, both because they acknowledge that the spark of creativity predated the ability to cash it in, and because if you dump too much fuel on a fire at once you can extinguish the flame.

But listen to the lobbying of rights holders, or "creatives" as they style themselves, and you would think that in the pre-copyright days when music really did sell for a song, no one would have bothered picking up an instrument, or for that matter a paintbrush or pen. That is absurd. Of course artists and inventors need recompense, but there is a delicate balance here. If ideas and experiences which can quite feasibly be enjoyed by everybody are instead priced out of some hands by IP laws inflating the costs then that is plainly inefficient. The inefficiency is justified only if and to the extent that it really does feed the fire of genius.

Professor Ian Hargreaves, who yesterday published a review of copyright commissioned by the prime minister, has a sure grasp of all this. The report pointed to the dismal lack of evidence about exactly how much damage piracy is doing. In reference to the successful campaign to extend audio copyrights deep into posthumous territory, it drily observes the futility of sharpening incentives for artists who are already dead. But the report did not run into the storm it might have done because of one thing it did not say. It rejected Google's well-publicised talk about importing America's "fair use doctrine". This allows judges to set aside copyright sanctions in response to changing technologies and the circumstances of the particular case.

Mr Hargreaves's rejection of it, however, has less to do with principle than the impracticality of forcing a foreign doctrine into the framework of EU copyright laws. Instead, Mr Hargreaves proposes a series of important exemptions, to relax the rigidities of a status quo that restricts parodies of copyrighted material, bans libraries from digitising their archives and makes notional criminals of people who move music they have paid for from one device to another. All of this is a commonsensical start.

Welcome too is the idea of a clearing house, where arrangements can be made for accessing works with untraceable owners, and where those owed small royalties might claim them. Most important of all for future prosperity is clearing away the patent thickets, which inhibit newcomers from entering digital markets by restricting use not just of inventions, but concepts and processes too. Rights holders are wrong if they think they have been handed a licence to print money as normal.