15th May 2023
Last week there was a newspaper article under the names of two cabinet ministers.
The piece was a warning to the House of Lords about the government’s illegal migration bill.
The “will of the people” in the headline is eye-catching.
And what is also eye-catching is that the new Lord Chancellor put his name to this piece.
One would perhaps not expect too much from the current Home Secretary, but it is striking that Alex Chalk is content to have this under his name too.
The “will of the people” in the headline could have been disregarded as an editor’s embellishment if it was not for the last paragraph of the article (emphasis added):
“We urge the House of Lords to look at the Illegal Migration Bill carefully, remember it is designed to meet the will of the British people in a humane and fair way and back the bill.”
So the “will of the people” line is quite deliberate.
The cabinet ministers are being serious.
And if they are serious, this line perhaps has serious implications.
*
The United Kingdom is, of course, a representative democracy and a parliamentary system.
As such, the United Kingdom is not a direct democracy.
Even the few referendums that have been held only had any legal consequence to the extent that a parliament provided for that consequence.
In this system, the notion of a mandate has weak purchase.
An incoming government can ignore a manifesto commitment after a general election.
A government can even flatly reverse a manifesto commitment, as the Conservative government in 1987-92 did with the poll tax (“community charge”).
The only significant effect that a manifesto commitment has for a government after a general election is that, in the event a Bill has opposition in the House of Lords, ministers can say it is an issue on which the democratic element of the polity has conferred a mandate.
And then, by convention – but not by any hard constitutional law – the House of Lords will pass the legislation, rather than delay it or defeat it.
Now, let us look at the Conservative manifesto for 2019:
Oh.
(That is the manifesto’s only express mention of asylum seekers.)
There is also this:
The key passage here is “Only by establishing immigration controls and ending freedom of movement will we be able to attract the high-skilled workers we need to contribute to our economy, our communities and our public services. There will be fewer lower-skilled migrants and overall numbers will come down”.
The introduction to the manifesto also promised that there would be“an Australian-style points based immigration system”.
And there is a promise to “overhaul the current immigration system, and make it more fair and compassionate”.
No particular legislation is proposed, and – in respect of “illegal” migration, there is no specific measure promised or even a policy stated.
There are just very general objectives.
*
And now let us look at the bill before parliament.
This bill does not introduce “an Australian-style points based immigration system”, the only (relatively) specific policy mentioned in the manifesto in respect of controlling borders.
There seems nothing in the Bill which was spelled out in the manifesto.
Contrast this with, say, the 1987 commitment to introduce the poll tax:
“We will reform local government finance to strengthen local democracy and accountability.
“Local electors must be able to decide the level of service they want and how much they are prepared to pay for it.
“We will legislate in the first Session of the new Parliament to abolish the unfair domestic rating system and replace rates with a fairer Community Charge.
“This will be a fixed rate charge for local services paid by those over the age of 18, except the mentally ill and elderly people living in homes and hospitals. The less-well-off and students will not have to pay the full charge but everyone will be aware of the costs as well as the benefits of local services. This should encourage people to take a greater interest in the policies of their local council and in getting value for money.”
Legislation was then promised and the content of that legislation described – both in what will be repealed and what would replace it.
There is nothing in the 2019 Conservative Manifesto which has similar detail about the current illegal migration bill.
*
What this means is that ministers are contending that broad-brush statements in a manifesto confer a mandate, rather than any detailed proposals.
As long as ministers can say a general objective is stated in a manifesto, they can seek to browbeat the House of Lords.
The two ministers in their article say:
“It is entirely right that the Lords should scrutinise this important piece of legislation — that is the purpose of parliament’s second chamber. At the same time, it must be balanced against the clear desire of the British people to control immigration. This was a government manifesto commitment in 2019, with a pledge to take back control of our borders.”
Note the weasel word “clear”.
“That is why we have taken robust measures, with the assistance of some of the country’s finest legal minds, to ensure our bill can meet the expectations of the British people.”
Note the implicit admission that these measures were not before the electorate at the 2019 general election, but have been developed afterwards – by “some of the country’s finest legal minds”.
*
Is the Conservative manifesto of 2019 sufficiently precise for this bill to have a mandate?
No, of course not.
Statements of general objectives in a manifesto do not – cannot – confer mandates on particular measures.
It is not, and should not be, open for a minister to declare that a measure should not be delayed or defeated in the House of Lords because of general statements of intent in a manifesto.
Many measures could be said to meet that intent – measures different to the ones before the House of Lords.
Had the governing party specified the actual measures in the manifesto, then ministers would have a point.
But the governing party did not, and so ministers do not.
*
The implication of this “will of the people” rhetorical device is that the government does not wants be subject to the rules and conventions of representative democracy and of a parliamentary system.
The implication is that a minister’s interpretation of broad statements in a manifesto cannot be gainsaid.
What the minister wills is the will of the people.
Members of parliament and peers would then be left with no role other than to approve what a minister says is the will of the people, just because of general statements in a manifesto.
That would create a significant constitutional imbalance.
*
And on a more mundane level, if this approach catches on then it may mean that even those (like me) who are sceptical of proportional representation and electoral reform will have to change their (our) minds.
For the one-member-per-constituency model only makes sense (if it makes any sense at all) if MPs are not delegates but representatives.
And the so-called “Salisbury doctrine” – that provides that the House of Lords does not block manifesto commitments – only makes sense in respect of things that have a degree of specificity in a manifesto.
What Braverman and Chalk are seeking to do here may be attractive to them (or their article writers) in the short-term, but for each constitutional push there is (or should be) an equal and opposite counter-push.
And so seeking to bully the House of Lords with rhetoric about “the will of the people” for measures which were not actually set out in a manifesto could be counterproductive.
If ministers are acting like there is a direct democracy, then the current system is not sustainable.
And if there is electoral reform and proportional representation, then it is likely that such stridency in policy will be far more difficult.
The ministers may tell peers that the measures are good and practical (even if they are not), and thereby promote the bill on its merits.
But if they keep playing with this “the will of the people” rhetoric, Conservative politicians may discover that, if there is electoral reform and proportional representation, the actual will of the people will be a very different beast.
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Another unsettling (if small) step along the road that leads to authoritarianism.
It would be interesting to hear/read DAG’s thoughts on the Government’s apparent unwillingness to be advised by any one who has been critical of it in public, and the constitutional basis for this.
https://twitter.com/lizrawlings/status/1650991455232573440?s=20&emci=a91e4f27-4bee-ed11-8e8b-00224832eb73&emdi=b347d568-16f3-ed11-907c-00224832eb73&ceid=388985
https://twitter.com/BBCNewsnight/status/1650982003171557376?s=20&emci=a91e4f27-4bee-ed11-8e8b-00224832eb73&emdi=b347d568-16f3-ed11-907c-00224832eb73&ceid=388985
(Paywall on this one, from the Times) https://www.thetimes.co.uk/article/rees-moggs-blacklist-is-positively-soviet-7kkp6cl5r?emci=a91e4f27-4bee-ed11-8e8b-00224832eb73&emdi=b347d568-16f3-ed11-907c-00224832eb73&ceid=388985
https://www.lbc.co.uk/radio/presenters/james-obrien/jacob-rees-mogg-blacklist-whitehall/?s=09&emci=a91e4f27-4bee-ed11-8e8b-00224832eb73&emdi=b347d568-16f3-ed11-907c-00224832eb73&ceid=388985
Any time I hear the “will of the people” being invoked, especially by scoundrels who presume to speak for the people without first consulting them in a meaningful way, I wonder just how many steps it would take to arrive at the Volksgerichtshof (“The court was established in 1934 by order of Reich Chancellor Adolf Hitler, in response to his dissatisfaction at the outcome of the Reichstag fire trial in front of the Reich Court of Justice (Reichsgericht) in which all but one of the defendants were acquitted.”)
The behaviour of recent Home Secretaries and Lords Chancellor suggests that such an innovation (one hour trials with a certain outcome, during which the people’s representative harangues the accused and the defense attorney sits silently) might appeal to them.
With JRM’s comment today about gerrymandering, we seem to be in a position where the Government is blatantly working against democracy – and using the manifesto as an insufficient fig leaf.
Depressing though it is, I find hope from DAG’s explanations (meaning we’re not all sleepwalking into catastrophe) but also the number of Conservative voters who are calling this out.
Elements of the left may choose to throw the word like ‘scum’ around, but many Conservatives are close to the centre and won’t vote for the lurch to the right.
The big question is whether they are too late and has the current Government got a stranglehold on democracy.
Not enough of a stranglehold, I’d like to think, to get them out of the mess – and internal strife – that is ripping them apart before our eyes.
Popcorn, anyone?
Braverman repeatedly claims the will of the people is on her side. Especially with the Rwanda deportation policy, she claims the vast majority of British people support it. This is just as vague as the manifesto commitment on immigration and just as unsupportable. At best a large minority of people support the policy. Roughly the proportion that voted Tory in 2019. Quelle surprise.
The other issue with “will of the people” here is the fact that, even if Chalk and Braverman were right, it’s only the “will” of the minority of people who voted for this government. Certainly not a majority. That’s the problem of FPTP. It simply does not represent the views of the electorate, and is fundamentally undemocratic. I really fail to see how anyone can back FPTP, which essentially what being against PR means, and claim to be a democrat.
Indeed. The “Will of the People” has been used as a crude battering ram for every nefarious move since 2016 and should ring loud alarm bells whenever it is invoked.
If anything the Illegal Immigration and the REUL bills should act as an incentive to introduce PR (STV) to help mitigate the effect of extremists such as these, who by dint of their position, have wielded their acquired powers in such a reckless and harmful fashion.
The story of the accidental brexit coup should serve as a warning notice for anyone who values democracy, to heed its fragility.
I am, once again reminded of Mr Churchill’s 1947 Brexit speech:
‘Is the party opposite really to be entitled to pass laws affecting the whole character of the country in the closing years of this Parliament without any appeal to the people who have the vote and who placed them where they are? No, Sir, democracy says, “No, a thousand times No. You have no right to pass legislation in the closing phase of a Parliament which is not accepted or desired by the mass of the people.”‘
No popcorn offered …
I’m genuinely frightened by what’s happening.
So am I and feel sick with worry.
Hear hear.
I recall poor Ken Clarke a few years ago citing Burke to a bored and
un-interested Commons. Essentially, Clarke was pointing out that a
parliamentary democracy is not a plebiscite democracy, but febrile
populism fails to appreciate the distinction:
——————Burke quote:
“Certainly, gentlemen, it ought to be the happiness and glory of a
representative to live in the strictest union, the closest correspondence, and the most unreserved communication with his
constituents. Their wishes ought to have great weight with him; their opinion, high respect; their business, unremitted attention. It is his duty to sacrifice his repose, his pleasures, his satisfactions, to
theirs; and above all, ever, and in all cases, to prefer their
interest to his own. But his un-biased opinion, his mature judgement, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living. These he does not derive from your pleasure; no, nor from the law and the constitution. They are a trust from Providence, for the abuse of which he is deeply answerable. Your representative owes you, not his industry only, but his judgement; and he betrays, instead of serving you, if he sacrifices it to your opinion.”
– Edmund Burke, 1774
That quote from Burke would not sit well with Brexiters, or anyone in the SNP, or indeed anyone who believes in referendums.
(Given my background, I’m not usually inclined to be a fan of the late Margaret Thatcher, but I always respcted her industry and inteligence – and I’m with Thatcher on referendums: “Perhaps the late Lord Attlee was right,” she observed, “when he said that the referendum was a device of dictators and demagogues.”
Nowadays, and this was very evident in relation to Brexit, there is
widespread misunderstanding of the difference between a representative democracy and a plebiscite democracy. Brexiters who were furious at what they saw as stalling by the Commons were sincerely furious. Some of them appeared genuinely to believe that an elected representative is bound to implement the result of a popular poll without delay or reflection.
In reality, the UK, like many Western democracies, is a representative democracy. That means (as we all (used to) know) that individual voters entrust elected representatives to act in our best interests and to make decisions on our behalf. *The important point is that they do not do our direct bidding.* They never have done. We expect (or at least hope) that the decisions they take will be aligned with their manifesto or their general economic / social values and opinions. If the decisions they take contradict their manifestos / pre-election promises, then our primary remedy is to vote them out at the next election.
The critical point here is that elected representatives are not mere
puppets / ciphers who blindly and uncritically do our bidding. Once
elected, the very nature of a representative democracy is that they
can pretty much do what they like (within reason and within the bounds of the law) until we next get a chance to boot them out at the next election.
By contrast, in a direct democracy, people call the shots directly.
This is what Brexiteers tend to prefer; which is fair enough.
However, some Brexiters seemed to assume that the UK *already had* that variant of democracy.
Both types of democracy are valid; both have pros and cons.
Nowadays, so used are we to Bake Off, Internet polls etc, that this
fundamental distinction has been blurred, if not lost.
As John Harris noted:
“But there is also something deeper at play. For all that it remains
the best model of government and politics human beings have yet come up with, in the 21st century, representative democracy is a very tough sell. When people spend half their lives online and can experience at least the sensation of agency and instant gratification, the idea that we elect MPs to exercise their own judgment and then eventually submit their record for approval or rejection can easily seem woefully old-fashioned. I have lost count of the number of people I have met over the last few years who have angrily told me that the function of the Commons was to simply “do our bidding”.
In a recent YouGov poll, 63% of respondents agreed that MPs must “act according to the wishes of their constituents, even when this goes against their own judgment”, a figure that reached 78% among leave voters and – at which point Edmund Burke spins in his grave – 81% of Tory supporters. It is no accident that, like so many populist forces, Nigel Farage’s Brexit party claims to be in favour of direct
democracy.”
I blame the Internet. I wouldn’t be entirely surprised to see a new TV
show – “Nigel’s Great British Vote-Off” wherein all the great national
issues of the day – politics, defence, economics – would be decided by
viewers online or via their mobiles: “option 1 to cancel the dole in
Liverpool; option 2 to scrap all employment rights; option 3 to sell N Ireland – nice to screw you, to screw you, nice!”
Levity aside, my own view is that plebiscites, whether for Brexit or
for Scottish independence or anything else, are always a lazy idea.
Referendums are too intrinsically febrile, and too susceptible to
troll-farm / mob-capture. A system of representative democracy moves more slowly and any change emanating therefrom will be less socially divisive and longer lasting. That is, if you don’t like something, you need to get out there, form a party, sell your ideas to the electorate and get into government on your manifesto. That takes real commitment and tends to weed out the spoofers. By contrast, voting in a referendum is no more onerous than voting in bake-off.
And there is a further problem with referendums – they tend to be carried with a woefully insufficient voter turnout.
The paradox is that democracies should not tolerate non-voters.
Spoil your vote, if you wish – but show up. As they do in Australia, anyone who fails to vote should be fined – ideally at source, in PAYE or benefits.
Nor should democracies tolerate incomplete voting registers.
Brexit continues to underwhelm.
As you’d expect. It never had enough support.
Here are the Brexit voting maths:
VOTED LEAVE: 17 million (c. 26%)
VOTED REMAIN: 16 million (c. 25%)
SAT ON SOFA SCRATCHING POSTERIOR: 13 million (c. 20%)
NOT EVEN ON VOTING REGISTER: 18 million (c. 28%)
That is, nearly 75% of the UK did not vote for Brexit.
Even in mere private companies, no major decision would be pushed though with c. ¼ of the shareholders or directors.
In corporate terms, the Brexit result was electorally inquorate.
Typically, for major corporate decisions, a genuine 50+% is required even for routine decisions, and 75%+ by shareholder value is required to sanction a major decision.
Referendums are a bad idea to begin with, but if one is stuck with them, they should at least require a 75% majority of all adults.
Anything less is a recipe for societal fracture.
As we have seen.
I submitted a FOI request – FOI 75912 – in April. I asked for the following information:
“1. A fundamental reason for introducing the Illegal Migration Bill is that it will break the business model of the People Smuggling Gangs. Please would you provide some or all of the evidence to prove this.
2. Which other countries have similar laws and what is the evidence from those countries that deporting asylum seekers and refugees to a third country has broken or hindered the business model of the People Smuggling Gangs.
3. What percentage of the British People supports the Illegal Migration Bill? How has this been measured, and when was it measured? (Stopping the Boats was not in the 2019 Manifesto and was not a priority in the Conservative Policy Forum).
I am promised an answer by 24 May. I intend to go on submitting such requests until I’m banned from doing so; then I’ll take my case to the Information Commissioner. Incidentally, Braverman has been reported to the Bar Council for hate speech, and making racist statements and speech.
Shame…
I’ve been fascinated by the way that Parliament works since I was about 16 (when, as a sixth former in a trad grammar, I had free access to the school library and hence to the day’s Times, laid out on a beautiful lectern). That was 51 years ago. That MPs were representatives was something I loved .. about how things used to be. In a sense they are still representatives, only now, instead of being primarily representatives of their constituents they are (almost solely, in some cases) representatives of their party. To be a candidate they have to, in effect. put themselves at the service first of the party machinery, and only second, provided there’s no conflict, of their constituents.
I always feel I’m descending to the level of the Four Yorkshiremen here .. but .. when I was in my teens, twenties .. maybe into 40s .. constituency really seemed to matter to MPs. I was no admirer of Keith Joseph’s politics, but he was tenacious in pursuing his constituents’ interests. Now it’s commonplace for MPs to ignore or dismiss constituents’ concerns. The sense that they represent all their constituents has gone (not for all MPs by all means).
So, yes, the issue at one level is the difficulty of making the Executive accountable to Parliament .. that’s to construe the problem in the terms of traditional understanding of representative democracy. But that fails to acknowledge the place of the party machine .. not just (with a Tory government) the 1922 Committee, but the whole machinery of the party HQ, the Whips’ office, the ministerial payroll, central control of constituency selection processes, the favoured press lobby, the donors (especially the donors). When we talk about ‘the Executive’ .. that no longer really exists as a discrete thing, there’s an ecosystem and much of it operates under the radar. We haven’t a hope of regulating it without much stronger .. regulators .. and the ones we have are in the process of being dismantled.
Therefore, Bah.
When electoral reform was put to the public in NZ in the 1990s the National (conservative) and Labour parties were united as seldom before in advising the public to stick by the existing UK-style first-past-the-post, including such rigorous argumentation as “better the devil you know”.
The public quoted back “a plague on both your houses” and ultimately opted for MMP, with results that if not universally happy were judged on a subsequent referendum to at least be an improvement.
I hope that such an outcome for the UK may result from this scurrilous venture.
Excellent article – I am so sick of hearing this Government spout at every opportunity – the “will of the people” – it’s as though the recent local elections never happened!!
Whenever Johnson was questioned about Partygate his usual response would be something like:
‘What the People want to hear is how we are getting on with..’
(insert whatever porky)
‘We are getting on with the Peoples priorities’
I’ve often wondered who these ‘People’ are because I’m not one of those People and nor do I know any.
Is it apt to use a word that begins with F to refer to this sinister government?
And, of course, the “will of the people” being quite hard to determine when the Conservatives only received 43.6% of the total votes cast (on a turnout of 67.3%)…
So that is hardly “the people” I would posit.
Thank you as ever for the insight and explanations. I extend this thanks to the expert commentariat here for their contributions as well.
However I think you may be guilty of over-thinking the thought process involved in their article; it appears to me to be one more in an increasing line of assertions clearly saying ‘DO AS I SAY, NOW’ and anything else is post hoc rationalisation to ease that bitter pill down our collective throats.
Nothing else to see here but this monstrous attempt to wrench our society down a specific path.
Another implication of all the “will of the people, stop the boats” noise might be that the Tories see advantage to them in whatever the Lords do.
If they cave in and pass the bill mostly in its current form, that’s a success for the government.
But if the Lords substantially amend, or even block it, as the lack of a mandate would entitle them to do, the Tories would be equally happy. It nicely sets up a general election campaign asking for that specific mandate that DAG points out isn’t currently there.
It might even serve as a springboard for an early election in an attempt to catch the opposition on the hop. I’m sure that some in government would see that as their best hope for another victory.
I’d like to be wrong, but
“Brace, brace.”
What impels a government with a healthy majority to expend energy on bullying the Lords in advance of their deliberatons when it can simply reverse their amendments?
“Will of the people.” Really?
In 2029, the Conservatives (under Boris Johnson) won 43.6% of the vote on a turnout of 67.3%. That was an 80 seat majority from 29.34% of the electorate.
Nobody seems to know precisely what the convention states. (It can be explained in different ways). What is the convention really worth when (a) the manifesto itself lacked clarity, (b) FPTP gave them a large majority from a minority of voters, and (c) we are now two Prime Ministers after the one who led them to an election win. (Yes – party leaders do matter at elections).
Points-based immigration: Wasn’t that supposedly introduced from 1.1 2021?
https://www.gov.uk/government/publications/the-uks-points-based-immigration-system-policy-statement/the-uks-points-based-immigration-system-policy-statement