Win or lose, there are never any final battles in politics. A defeat simply means the firing of the starting gun for the next round in a never-ending struggle.

And, especially for the left, it is the struggle that matters. Without that struggle and the effort that has gone into it, the values of fairness, compassion and tolerance would be even more submerged than they are now. Keeping them alive and relevant in hearts and minds today will ensure that they will once again be re-asserted as the political tide turns tomorrow.

In fifty years of political experience, I have lost count of the number of times that a general election result – in either New Zealand or the UK – has been hailed by one side or another as signalling a watershed in politics; the winners’ confidence in the permanence of their victory is always revealed – in short order – to be the illusion it is.

It was as recently as 2002 that the National vote slumped to 21%, while John Key’s current victory does no more than replicate Helen Clark’s similar trio of successive wins. And, as a further antidote to the immediate triumphalism of the right, let us remind ourselves that fewer than two out of five of New Zealanders entitled to vote actually cast a vote in favour of National in 2014.

But let us also be honest enough to recognise the impressive political skills that have produced the National victory. John Key is an unusually personable, skilled and effective political operator; he is entitled to the plaudits for what has been a very personal achievement. We may not like him, and dislike even more what he stands for, but the fact that this has been a victory for him rather than his party should give us ground for hope.

In any event, winning the election is “just the beginning”. John Key, with all his presentational skills, now has to face a country in which half the citizens believe that he has lied to them on matters that are central to his integrity and that of his government. As a result, it can hardly be argued that the body politic he heads is in good health.

In the meantime, it is the opposition – and particularly the Labour Party – that is faced with the uphill struggle. The National vote may not be quite as monumental as it is portrayed, but it comfortably dwarfs a Labour vote that represents less than one in five of eligible voters.

A vote as low as this is fraught with danger for an opposition party with pretensions to forming a government. Even those who want to see a change of government will begin, in a fragmented political environment, to look elsewhere for salvation.

I faced this danger as director of Labour’s UK general election campaign in 1987, when the Liberal alliance with the newly-formed Social Democrats threatened to supplant Labour as the best hope of removing the Tories. Labour didn’t win that election, but the effective campaign we ran then saved the party and boosted our vote, re-establishing Labour as undoubtedly the principal opposition and paving the way to 13 years of Labour government.

If Labour is to avoid that danger in New Zealand in 2014, the task now is twofold. First, Labour must show themselves to be an effective opposition. That means they must, in particular, resist the efforts that will undoubtedly be made by a gung-ho right-wing government to “roll back the state” – code for cutting back on public services, further eroding benefits, wages and rights at work and for running the economy even more in the interests of the big battalions. They must demonstrate to public opinion that a policy that undervalues our people and wastes our resources produces not only a society that is less fair, but also an economy that is less productive and sustainable.

Second, they must prepare now for fighting and winning the next election. They must promote a strong team of leading spokespeople (including new faces) to support the leadership – and that support must be united and whole-hearted. They must work constructively with other opposition parties and provide the intellectual and policy leadership that others will follow.

But it also means, as a preliminary step, some real soul-searching. Why is the Labour brand so unappealing? Why does it not enthuse young people in particular? Why does so much Labour policy seem to constrain rather than liberate – and therefore provide reasons for not voting Labour? Why does the new thinking that is supported by informed opinion – on a capital gains tax, on the pension age, on making Kiwisaver contributions compulsory and using them as an alternative or supplement to interest rates as a counter-inflationary tool – gain so little traction with the public?

Why have the past six years meant that the successful nine years in government prior to that count for so little in the public perception?  How, in other words, does Labour remain true to the traditional values it shares with so many New Zealanders while applying those values in forward-looking , innovative and appealing ways to resolve the problems familiar to all our fellow-citizens?

Bryan Gould

21 September 2014

One of the few journalists to do his job properly over the course of the dirty politics scandal has been Guyon Espiner. He has, without in any way breaching his duty of impartiality, seen it as his responsibility on Morning Report to put questions to, and demand answers of, the Prime Minister – and, when those answers have not been forthcoming, he has not hesitated to make that clear.

He has continued that approach as the scandal has widened to embrace the question of whether or not John Key has lied to us in denying the mounting (and many would say, convincing) evidence that New Zealanders have been subjected to mass surveillance by the GCSB.

Espiner’s interviewee this morning was Sir Bruce Ferguson, a former Chief of New Zealand Defence Force and subsequently the Director of the GCSB. The interview followed in the main a predictable course. Ferguson, although lacking any technical or specialist knowledge, was robust in asserting that there had been no mass surveillance under his watch (though how would he know?) and he revealed his own obvious limitations and prejudices when he dismissed the evidence to the contrary from Edward Snowden on the ground that the latter was “a traitor to his country”.

The fact that Snowden’s evidence across a wide range of issues has never been shown to be inaccurate in any way did not seem to concern him at all.

The interview then took, however, an interesting turn. Espiner, skilled interviewer as he is, asked the good Air Marshal how far the GCSB’s powers might extend in the case of someone – taking himself, Espiner, as an example – who was suspected of acting against New Zealand’s security interests.

Ferguson was pleased to explain in detail the steps that would need to be gone through before a warrant would be issued to look into the records available about, in this case, Espiner, or any other potential suspect. He agreed with Espiner that, once the warrant had been issued, everything about the individual who was the subject of the inquiry – e-mails, electronic communications and transactions more generally, lists of correspondents and contacts over a long period – would be available to the security services.

It was at this point that Espiner posed the critical question. I paraphrase and elaborate – “Where,” asked Espiner, “does that information come from? How is it that it becomes available? Who has been holding it and how did they get it? Since suspicion could suddenly and unforeseeably fall on any person and a warrant could be obtained in respect of that person, does it not follow that the full information that you have described about that person – and every other person – must have been held somewhere, ready to be made available in the event that it was needed? Does this not show that we are all subject to surveillance, in case the information is one day needed about any one of us?”

Ferguson was not at all discomforted by the question, mainly because he plainly had not understood it or its significance. He proceeded to provide yet more detail, at length, about how warrants were obtained, and seemed completely oblivious of the point that Espiner had made.

The rest of us, however, are able to ponder Espiner’s question at our leisure. If the GCSB is able, when a particular name is put to them, to produce the detailed information described by Ferguson about that person, how could that be done unless records are kept about all of us?

The evidence that mass surveillance takes place in New Zealand – evidence that the Prime Minister demands that we should produce before he will concede that he has misled us on the subject – seems, after all, to be a matter, not of physical proof, but of simple logic.

Bryan Gould

16 September 2014.

The latest instalment in the saga of John Key’s struggle to maintain his image as someone above suspicion has produced the amazing spectacle of a Prime Minister in free fall.

Faced with the threatened revelation that he has been – not just economical with, but contemptuous of – the truth as to whether or not he authorised our spy agency to spy on our fellow-citizens, he began with an embarrassing attempt to divert attention by name-calling a respected international journalist.

That was bad enough; it surely does our international reputation no favours to see our Prime Minister resort to insults, rather than address the real issues.

But worse was to come; as those issues have become impossible to ignore, we have seen a Prime Minister in a kind of grotesque pastiche of a slow-motion strip-tease – compelled from one hour to the next to reveal, layer by layer, something that gets closer and closer to the naked truth.

It was, after all, only a day or so ago that he assured us that there was “no ambiguity – I’m right, he’s wrong”. But then we learned (after he denied that there had ever been any such intention) that there had indeed been a “business case” prepared (how reassuringly run-of-the-mill that was meant to sound) to allow the GCSB to collect metadata about New Zealanders and then pass the information on to the Americans. He then explained that he had decided that the plan, though well-advanced, should be abandoned so that it had not been implemented.

At this point, the Prime Minister resorted to talking gobbledegook in an attempt to persuade us that it was all too complicated for ordinary mortals to understand. The plan had concerned, he said, “cyber protection” – a phrase that was meant to convey somehow that this was something quite different from, and therefore more acceptable than, collecting metadata about large numbers of ordinary citizens – a difference not apparent to the experts.

Another hour, another layer removed; he had not actually stopped the plan, but had “narrowed its scope”. It would not therefore place everyone under surveillance – but large, unquantifiable and unverifiable numbers of New Zealand citizens would still have their right to privacy disregarded.

A further qualification was then provided. The GCSB, we were told, did not have the resources to secretly monitor large numbers of people – which begs the question as to why a government that had gone to such lengths to please the Americans with such an elaborate plan would stop short at providing the resources needed to put it fully into action.

And then, a little bit of wishful thinking, before the Prime Minister resigned himself to being fully exposed. The revelation, he suggested, would be embarrassing in terms of showing that we had spied on friends and allies, rather than that he had lied about spying on New Zealanders.

The reaction of New Zealanders to this spectacle has been mixed. There remain those, of course, who – whatever their predilection for striptease might be – have little interest in the Prime Minister baring all. For them, anything political is of no interest, and they are hardly aware, if at all, of John Key’s embarrassment; they notice only the smile.

Then there are those who have no doubt watched in horrified fascination as the various layers of misinformation have been discarded, but who are determined not to allow their faith in the Prime Minister to be shaken. They made up their minds, even before John Key told them it was so, that this has all been brought about by a “left-wing conspiracy”, though it isn’t clear quite how it came about that “they made me do it”.

And then we have those who prefer to front-foot it. Yes, they say, the Prime Minister did authorise spying on the whole population. Yes, he did conceal it from us and he did lie to us. But he did it because the threat from terrorist attacks is so great that we have to go beyond monitoring suspicious individuals. We all have to give up our civil liberties and the rule of law; we may not like Big Brother but he is there to protect us – the argument used by repressive regimes from time immemorial.

What should the rest of us think? Perhaps the best way to approach it is to think of ourselves in terms of a jury. The Prime Minister is certainly on trial and there is a list of serious charges against him – and, as in this case, the evidence is produced only in dribs and drabs.

We might want to choose whether this is a civil case – so that we decide on “a balance of probabilities” – or is more akin to a criminal trial in which case we will look to be satisfied “beyond reasonable doubt”. But, in either case, absolute proof, one way or the other, may never be achieved.

We still have a duty, though, to reach a view. A jury will not usually just accept the word of the person being charged or sued; our task is to reach a conclusion, having assessed the evidence, without fear or favour.

Bryan Gould

15 September 2014

I have today sent an open letter to the Inspector-General of Intelligence and Security to ask why Mr Key is not required to attend her inquiry and to give evidence under oath.  The letter is attached.

Dear Inspector-General,

I was delighted to learn of your decision to hold an inquiry under the Inspector-General of Intelligence and Security Act 1996 into the circumstances surrounding the release to the Whale Oil blog in 2011 of a confidential SIS briefing provided to the then Leader of the Opposition. I applaud not only your decision but also the fact that you are to conduct the inquiry without delay.

There is, after all, no issue of greater importance in a democracy than that the intelligence and security services should serve the interests of the country as a whole and should not be subverted for the partisan political purposes of the party that happens to be in government. As a fellow-lawyer, I am confident that your powers under the Act will allow you to provide answers to the hugely important questions that arise.

I understand that you have required the attendance on 11 September of a number of those involved. You will no doubt want to hear evidence on a range of issues. How did the SIS reach its decision to release the information in response to this particular request when others had been turned down? Why was it released in such an abnormally short time? Was the Prime Minister’s office consulted about such a politically sensitive matter? How did the Director of the SIS feel that he was able to take such a decision without such consultation? When did the Mr Key learn of the request and of the SIS response?

Those required to attend include, I understand, members of the Prime Minister’s office. This is, of course, as it should be; Mr Key is the minister responsible for the intelligence and security services and there is a good deal of prima facie evidence that members of his staff were involved with the blogger, Cameron Slater, in respect of the issue. There has also been a good deal of public interest in the extent to which Mr Key was aware of what was happening.

Mr Key has focused particularly in his public statements on the issue of when and how he was informed, after the event, that the release had taken place. He has indicated his willingness to answer questions under oath and to confirm his repeated assertion that he was not informed personally of the release by the Director of the SIS, after it had occurred, and did not become aware of it until well after the event.

Mr Key’s focus on that question, however, is in danger of diverting attention from the much more important issue of whether the release was, or even could have been, made without Mr Key being consulted and without his approval, either explicit or implicit. Mr Key has made no comment on that issue. It is that question that, above all others, must be answered by your inquiry; a failure to address it directly would be widely regarded as an attempt to protect Mr Key.

Mr Key, after all, is on the face of it as likely to be involved and able to throw light on the issues as any others of those called to attend. His willingness to give evidence under oath should surely be tested; he should be asked directly when and how he became aware of the release or even of its mere possibility. Mr Key, after all, enjoys no special legal or constitutional position that would protect him from answering questions like anyone else.

The quite separate inquiry that Mr Key will announce later this week into the matters that led to Judith Collins’ resignation as Minister for Justice seems unlikely to throw any light on the wider issues, including the matters of particular concern to you. Your powers under s.23 of the Act to compel attendance and to take evidence under oath, on the other hand, make it possible for you to reach a comprehensive answer to those matters, including the extent of Mr Key’s involvement. That cannot, however, be achieved if Mr Key is to be sheltered from questioning by a failure on your part to require him to attend. I am sure I speak for many New Zealanders in believing that that would be a missed opportunity of the greatest significance and would detract fatally from the value of your inquiry.

Yours sincerely,

Bryan Gould