Democracy, Elections and Voting – Page 2

The coming constitutional excitements in the United States

The last post over at my Substack was fairly UK-centric – indeed Anglocentric – in its approach to the issue of constitutional crises.

That post averred that we do not often have constitutional crises in the United Kingdom though we (too) frequently have constitutional dramas and excitements. But it also warned that we are never far from a constitutional crisis, and that only self-restraint and deference to checks and balances have stopped constitutional tensions converting into contradictions.

Glancing at the United States, however, the situation appears to be far more serious. Over the Atlantic there seems to be a fundamental threat to constitutionalism, the effects of which may become very obvious in the coming year.

A few years ago, a complacent liberal might have assured you that in a democracy the perils of illiberalism could be dealt with in two simple ways.

First: politically one could defeat illiberals by winning struggles within political parties and by winning elections between political parties.

Like the proverbial poor, illiberals are always with us, but they could be kept away from power by gatekeepers and electoral prowess.

But what happens when the gatekeepers fall away and then the legitimacy of elections is itself contested? When the electoral wells are poisoned?

This is the immense problem created by the Trumpite lie about the “stolen election”. What good is defeating illiberals in a general elections – and being seen to defeat illiberals by sizeable votes – if the legitimacy of those elections is denied?

The old certainty that the best way to defeat illiberals is by defeating them at the ballot box is no longer sound if the ballot box is not respected.

Second: even if the illiberals gained executive or legislative power, the individual would still have the protections of their civil liberties as guaranteed by an independent judiciary. In this way the minority would be protected against any apparent majoritarianism.

But what if the very notions of civil liberties and of an independent judiciary are also trashed? What if the systems of rights and of their enforcement are, like elections, robbed of their legitimacy?

Here the illiberals are fighting the second front of their overall campaign. Just as electoral verdicts against them are dismissed, so are judicial verdicts. Their objective is to have no constraints on what they can when they have power, to have nobody who can say “no”.

Of course, the illiberals have not so far won either of these battles. Trump and his supporters are still out of presidential power, whatever they say about elections results. Illiberals have also not discredited the systems of rights and their enforcement (and indeed they have mixed feelings, given they often wish to rely on their “right to bear arms” – as they interpret it).

But these parameters of constitutional action are being continuously contested, even if they are not yet destructed.

If the results of elections are not accepted, and if the rulings of the courts are respected, then the conventional political and judicial checks on illiberalism may be insufficient.

And if so, what happens?

Nobody knows – and even best guesses may not be accurate. Like Withnail and Marwood, we could be drifting into the arena of the unwell, making enemies of our future.

This post was prompted by the discussions about whether Trump should be disallowed on various ballots by reason of his participation as an “insurrectionist”.

Such an huge intervention would have implications.

The normal inclination would be to oppose such a restriction on political choice: that the way to defeat Trump is at the ballot box and, if then appropriate, in the courts that apply electoral law.

But, comes the response, what if Trump and his supporters flatly reject the legitimacy of the ballot box and the courts applying election law? What if that standard liberal constitutionalist stance is no longer valid?

It is a difficult if not impossible question to answer, at least by the application of usual liberal principles.

And so the new year is going to be interesting.

2024 has the potential to be a very exciting year constitutionally.

And as we know, constitutional law should not be exciting, it should be dull.

Brace.

Best wishes for the new year, and thank you for your support and following.

Sir Keir Starmer and the Litigation Turn of Mind

31st July 2023

The leader of the opposition is a former litigator, and many litigators have a certain strategy – or at least a set of tactics: a certain cautious approach.

This approach is to think backwards from what may happen at trial – indeed sometimes to think backwards from what may happen with any appeal.

This sort of litigator anticipates what can go wrong with a case and thereby acts to, as far as possible, close the potential problem(s) down.

Other litigators can be more gung-ho, trying to make the most of their case at each and every point, from aggressive letter before action to expansive claim forms. Such litigators often encounter set-backs.

The more cautious litigator looks at everything the other way round, focussing on the strengths of the other side and the weaknesses of their own.

The merit of this approach is that if and when one gets to trial one is less exposed to defeat.

And often not being defeated on key points is enough for a good result.

If both sides adopt this approach then the “winning” party will be the one who has made the fewer mistakes.

But.

Politics is not law, and a general election is not a trial.

Yes, there is a place for mitigating or even eliminating predictable lines of attack.

And that may be enough for a political party to at least avoid a heavy defeat.

It may not, however, be enough to mobilise sufficient support so as to make an outright victory more likely.

For that there needs to be a positive message: to have points that the other party instead needs to mitigate or eliminate.

This is not to say that closing down lines of attack is a bad thing, just that it is not a sufficient thing.

A cautious litigation turn of mind has its place, but campaigning is not litigation.

A political leader – even those who were once lawyers – also needs a political frame of mind.

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Why the Northern Irish Border Poll of 1973 was both unimportant and profoundly important

(This post is a long excerpt from a fuller post at the Empty City substack for paying subscribers.)

This post is about the border poll that took place in Northern Ireland on 8 March 1973.

The choices in that poll were:

“Do you want Northern Ireland to remain part of the United Kingdom?

“Do you want Northern Ireland to be joined with the Republic of Ireland outside the United Kingdom?”

(Pic source.)

By 591,820 votes to 6,423 votes, on a 56% turnout, the result of the poll was in favour of Northern Ireland remaining part of the United Kingdom.

This result was not a surprise, given the electorate of Northern Ireland at the time.

And the low turnout was, in part, caused by a boycott of the exercise by the nationalist community.

This 1973 poll – or plebiscite or referendum, for the terminology varied – is not that well-known. Many histories of the period do not mention it.

When it is mentioned the poll is often regarded as a pointless exercise which did nothing to satisfy the unionists, and which certainly had no legitimacy for the nationalists.

And even at the time the poll was regarded as being fairly unimportant, almost trivial.

The poll was imposed by the United Kingdom government during a political and security crisis; the Northern Irish unionists had not asked for any such poll to take place; the nationalists did not campaign or vote; and, in any case, the result was a conclusion foregone.

The poll also had little-to-no direct impact on events: it did not seem to change anything that otherwise would have happened either in 1973 or the years that followed.

Soon the poll was pretty much forgotten about.

And none of the subsequent periodic polls in Northern Ireland which were then envisaged by the United Kingdom government took place.

As such, the poll can be seen as a minor detail, almost a footnote, to the story of Northern Ireland during “the Troubles”.

The 1973 poll was unimportant, at least in any direct sense.

But.

But the poll can perhaps now be seen as profoundly important in its implications and consequences, for two reasons.

First, this poll was the first referendum under a dedicated Act of the parliament of the United Kingdom, and this meant that it was far easier for the other referendums that followed.

Before 1973, there had been local polls by local councils on local matters in the United Kingdom, held under general and permissive Acts of Parliament that enabled local councils to hold such local polls on local matters.

But this border poll was different – radically different.

It was the first time a matter which would normally be for the parliament in Westminster (or the then Northern Irish parliament at Stormont) was put to the people directly, despite heady notions of parliamentary supremacy or sovereignty, in any or all of the four constituent parts of the United Kingdom.

As my Substack has previously set out, senior British politicians since late Victorian times had sometimes called for referendums, usually to help them out of knotty problems.

But this was the first referendum to actually take place on a matter usually reserved for parliament.

As such, this was the first actual exception to the hitherto hard doctrine of parliamentary supremacy.

Other exceptions would soon follow.

Following this first dedicated referendum there was then the referendum in 1975 on the United Kingdom remaining part of the then European Communities, and then referendums in Scotland and Wales on devolution in 1979.

And those referendums, in turn, meant that by the late 1990s referendums were seen as a valid means for dealing with renewed calls for devolution.

In 1998 a referendum was seen as the obvious means for endorsing the Good Friday Agreement.

Also, from the early 1990s, referendums were frequently demanded in respect of the European Union, and one was finally granted in 2016.

There was even a referendum on electoral reform.

Referendums went from being a constitutional exception to being, at least for certain matters, a constitutional rule.

Yet without the Border Poll of 1973 the referendums of 1975 and 1979 and many of those thereafter may never have taken place.

Perhaps the vote on the Good Friday Agreement would have still occurred, but even then the precedent of 1973 was perhaps instrumental in it being recognised that it was for the people of Northern Ireland (and not their politicians) to make this key decision.

After 1973 the old doctrine of parliamentary supremacy became undermined in reality, if not in strict constitutional theory.

There were certain matters which it became parliament should refer to the people.

Second, not only was the border poll an exception to one fundamental principle, it was also an important practical assertion of what was to become another fundamental principle.

For the border poll of 1973 was the first application of what is now a fundamental principle which can be stated as follows: that it is for the people of Northern Ireland to decide whether Northern Ireland is to become part of a unified island of Ireland or to remain part of the United Kingdom.

And note the reference here to “the people” – and thereby the decision is not for the politicians of Northern Ireland or any representative body, such as a Northern Ireland parliament.

This is significant.

The principle – which was first canvassed by the United Kingdom government in the late 1960s – informed and shaped what has happened in Northern Ireland since 1973, via the Good Friday Agreement, to the present day.

And it is this fundamental principle that explains why it is probable there will be a further border poll in Northern Ireland in the next few years.

The 1973 Border Poll, however, came about almost by accident, as one of many novel improvisations in a difficult political situation.

Here we need to go back to the United Kingdom’s Ireland Act of 1949 that provided that in no event would Northern Ireland cease to be part of the United Kingdom without the consent of the parliament of Northern Ireland.

It was a matter for the parliament of Northern Ireland, and not the Northern Irish people directly.

See section 1(2):

But by 1973 there was no parliament of Northern Ireland.

The parliament of Northern Ireland had been suspended.

And so when the government of the United Kingdom, facing the escalation of the Troubles, decided that there should be some affirmation of Northern Ireland’s position in the United Kingdom a decision was made that there should be a direct poll instead.

What had been, under the 1949 Act, a matter for the elected parliament of Northern Ireland was, at a stroke, made a matter for the people of Northern Ireland directly.

The 1949 Act had not said the consent of the people was needed or even should ever be sought on the place of Northern Ireland in the United Kingdom. It was not an issue for any popular vote.

But in 1973 it was made a matter for the people of Northern Ireland directly, and it has been ever since.

See section 1 of this 1973 Act, which followed the border poll:

And then section 1 of the 1998 Act that gave effect to the Good Friday Agreement:

Never again would an Act of Parliament say the place of Northern Ireland in the United Kingdom was a decision to be taken on behalf of the people of Northern Ireland.

So in terms of the immediate politics of 1973 the border poll may not have been important, but the use of a referendum for such a question was profound in its implications and consequences.

And as we approach a probable new border poll in Northern Ireland, it is a story that is perhaps worth knowing.

Over at my Empty City Substack I have posted a fuller account of the 1973 border poll for paying subscribers.

The fuller article has also been posted at my Patreon.

Any PayPal subscribers wanting access to the fuller article should leave a message below marked private with their email address.

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A possible implication of the recent “Will of the People” rhetoric of ministers

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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Big “P” Party vs little “p” party

9th May 2023

I once listened to a Young Conservative’s spirited explanation to two passers-by about how the Conservative Party did not actually exist.

There was, you see, the National Union of Conservative and Unionist Associations; and then, you see, there is the parliamentary party, which is quite separate; and then, you know, there is Conservative Central Office.

As the Young Conservative then went onto explain how professional party agents did not fit into this neat scheme, I could tell those being canvassed-in-the-street were both impressed and bewildered.

Surely a “Party” is a thing?

Well, actually, the Young Conservative was more-or-less correct.

And “parties” are still quite difficult to define.

Of course, there are legalistic definitions.

In the Political Parties, Elections and Referendums Act 2000, “party” is to be interpreted as including “any organisation or person” and “registered party” is defined as a party registered under that Act.

This is not illuminating.

Once registered, parties have certain obligations and rights, but that will not help us understand what is meant by “party”.

Halsbury’s Laws of England tells us the effect of that Act:

“In order to field candidates at elections, political parties must be registered.

“A party may not be registered unless it has adopted a scheme which sets out the arrangements for regulating the financial affairs of the party and which has been approved in writing by the Electoral Commission. The scheme must include such information as may be prescribed by regulations made by the Commission and must determine in particular whether the party is to be taken to consist of a single operation with no division of responsibility for the financial affairs and transactions of the party, or a central organisation and one or more separate accounting units. Where a registered party is a party with accounting units, each unit has a treasurer and an officer.”

Again, informative but not illuminating.

Elsewhere in the law, there are hints

For example, one of the (many) contributions by James Goldsmith to the law of defamation was to bring a case which resulted in it being established that a political party cannot sue for libel.

In this way political parties are like public authorities.

But again, this does not tell us what a “party” is.

Outside of law, we can point to the defintion of the eighteenth century Irish philosopher and British politician Edmund Burke:

“a body of men united, for promoting by their joint endeavours the national interest, upon some particular principle in which they are all agreed.”

One may quibble with at least a couple of words in this defintion – but it is helpful because it does not constrain us to just looking at professional politicians, professional staff, and/or volunteers.

It is a body of [people].

And once one adopts this broad and practical defintion, one can begin to see what are perhaps the real parties.

For example, the fluid movements between think tanks and media organisations and news desks and op-ed gigs and special advisors and hired consultants – and elected politicians and peers – show bodies of people united by their joint endeavours to promote what they see as the national interest upon various agreed principles and policies.

A Martian looking down at Westminster, Whitehall and (what used to be called) Fleet Street would assume, by observation alone, that the sum of the interactions and communications between various bodies of people were the real political parties – regardless of formal nomenclature.

And this is not necessarily a thing about the political right – for there is also, often on the political left and in the political centre – fluidity between pressure groups and campaign groups and trade unions and public bodies and campaigning organisations and civil servants.

These small-p Burkean parties can overlap and sometimes correspond to the big-P Parties.

The big-P Parties indeed seem to be coalitions of these teeming small-P Parties, sometimes spilling outside.

And as big-P Parties decline – for changes in media and communications mean the information-dissemination and organisational purposes of the big-P Parties are falling away – these small-p parties will become again more important, as they were in the days of Burke.

It will not be a complete reversion – big-P Parties will still be significant because of enduring brand loyalty (and recognition) and lingering tribal allegiances.

And these small-p parties – although highly influential – are impossible to regulate with ease.

We will have to get used to the boundaries between media and politics and business becoming more blurred – individuals casually going from news rooms to parliament to commerce, and so on, working in tandem with others similarly moving around.

And if enough of us object to this trend in our political culture?

Well: we can form our own a body of people united, for promoting by our joint endeavours the national interest, upon this particular principle on which we are all agreed.

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The prehistory of referendums in the United Kingdom – this week’s Substack essay on legal history

11th March 2023

Over at my Substack, this week’s essay on legal history for paying subscribers is on the prehistory of referendums in the United Kingdom.

The essay begins as follows:

For Philip Larkin a certain kind of intercourse began in 1963 – between the Lady Chatterley obscenity trial and the Beatles’ first LP.

Similarly referendums can appear to have started, at least in the United Kingdom ten years later in 1973 – not long after the Oz obscenity trial and the Beatles’ last LP.

For 1973 was the year of the border poll in Northern Ireland, which is usually considered to be the first referendum in the United Kingdom; and 1973 is also the year that the United Kingdom joined the European Economic Community (EEC), the membership of which was then to be subjected to a referendum in 1975.

For many of us in 2023, fifty years later, the most notable referendum was the one in 2016 on whether the United Kingdom should depart the successor to the EEC, the European Union.

Others are preoccupied with other referendums. Some are seeking a further Scottish independence referendum, to reverse the result of the result of the 2014 vote. And there is also the real prospect of a further border poll in Northern Ireland which may, in turn, lead to Irish unification.

Our recent politics are dominated by one referendum in particular, and the future of the United Kingdom itself may depend on two referendums yet to come.

And this is in addition to the referendums which led to the current devolved settlements in Scotland, Wales and Northern Ireland, all of which are now fundamental parts of our constitutional order.

But there was once a time before any of these referendums had been mooted or taken place or were even contemplated.

A time when 1973, and what then followed, was decades in the future.

And so this essay tells the story of the early history of referendum issue in the constitutional and political affairs of the United Kingdom.

You can read the rest of the essay here.

These essays are on topics to do with legal history and legal lore – and they are in addition to my free-to-read topical law and policy commentary here and at Substack every weekday.

Other essays include:

The lore of Lady Justice.

Dr Bonham’s case (1610) – and the question of whether parliament is really sovereign.

The 1712 case of Jane Wenham and the last of the English witch trials.

Taff Vale (1901) – perhaps the most important case in trade union history.

Wednesbury (1948) – the origin of the modern principle of legal unreasonableness.

Malone (1979) – perhaps the most significant constitutional case of the last 50 years.

How the courts improvised legal solutions in the hard case of George Blake between 1990 and 2000.

When William Rees-Mogg and James Goldsmith in 1993 asked the courts to declare that the United Kingdom could not ratify the Maastricht Treaty

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A look at Keir Starmer’s proposal for a “Taking Back Control” Bill

5th January 2023

Today the leader of the main opposition party in the United Kingdom gave a speech.

You can read a version of Keir Starmer’s speech on the Labour party website.

One part of it which seems possibly interesting from a legal perspective is a proposal for a “Taking Back Control” Bill.

This is what the speech said:

“So we will embrace the Take Back Control message. But we’ll turn it from a slogan to a solution. From a catchphrase into change. We will spread control out of Westminster. Devolve new powers over employment support, transport, energy, climate change, housing, culture, childcare provision and how councils run their finances.

“And we’ll give communities a new right to request powers which go beyond this.

“All this will be in a new “Take Back Control” Bill – a centrepiece of our first King’s speech. A Bill that will deliver on the demand for a new Britain. A new approach to politics and democracy. A new approach to growth and our economy.”

This call for de-centralisation and devolution will face the two fundamental problems every such call has faced since the nineteenth century.

The first problem for de-centralisation and devolution is the doctrine of the supremacy of the Westminster parliament.

This doctrine, which in good part was a Victorian innovation not known to earlier jurists, tells that all legislative power in our polity rests with the Crown-in-Parliament.

This means that no other body in the United Kingdom can legislate other than to the extent permitted by the Westminster parliament.

Recently this doctrine was illustrated by the Supreme Court decision on a reference by Scotland’s Lord Advocate.

In effect, the Scottish parliament is merely another statutory corporation, subject to the rule of ultra vires.

The Westminster parliament will not easily forego this legislative supremacy and – if we adhere to the doctrine of parliamentary supremacy – it may be impossible for the Westminster parliament to do so.

This means that any de-centralisation and devolution is at the Westminster parliament’s command: Westminster can grant this seeing autonomy, and Westminster can easily take it away.

What we do have are numerous devolution and local government statutes, all defining and limiting what various authorities can and cannot do.

There is no real autonomy – even for the Scottish parliament.

No ability to do things despite what the Westminster parliament would like an authority to do.

Ambitious projects by local authorities – such as when the Victorian town of Birmingham (not even yet a city) went and bought and operated its own gas and water industries – would be impossible now.

That is real de-centralisation and devolution – doing things the centre cannot stop.

The second problem for de-centralisation and devolution is in respect of policy and administration, rather than law.

It is the sheer dominance of HM Treasury in Whitehall and the public sector more generally.

For example, HM Treasury has a monopoly in respect of almost all fiscal and financial – that is, tax-raising and borrowing – powers.

(Even the Scottish parliament has limited autonomy to vary income tax rates and the Scottish government power to borrow money.)

And no public body has complete fiscal autonomy – and, indeed, many public bodies rely on central government for grants and financing.

It is unlikely that Whitehall will happily allow regional authorities and devolved administrations absolute power to raise taxes and borrow money.

And now back to the word “control”.

Unless regional authorities and devolved administrations have absolute power to raise taxes and borrow money, or to make rules and mount ambitions problems, then they do not have “control”.

Instead, “control” will stay – as it always does – with Westminster and Whitehall.

Westminster and Whitehall can extend the leash, but they can pull the leash back.

That is not “control”.

Looking more closely at Starmer’s speech, it is not clear to whom this “control” is to be actually given.

Consider the following passages (emphases added):

“…the Britain that Labour can build. A fairer, greener, more dynamic country with an economy that works for everyone, not just those at the top. And a politics which trusts communities with the power to control their destiny.”

“Giving communities the chance to control their economic destiny. The argument is devastatingly simple.”

“It’s not unreasonable for us to recognise the desire for communities to stand on their own feet. It’s what Take Back Control meant. The control people want is control over their lives and their community.”

“We need to turbo-charge this potential, but Westminster can’t do that on its own, it can only do it with communities. That’s why Labour will give them the trust. The power. And the control.”

And so on.

There is noting specific here as to who will get this supposed “control”.

Will it be existing local authorities or new regional bodies?

Will it be new legal entities smaller than existing councils?

And – most importantly if this really is about “control” – what will happen if those “communities” want to do something which Westminster and Whitehall do not want them to do?

Starmer did list some of the topics where there could be devolution of powers: “employment support, transport, energy, climate change, housing, culture, childcare provision and how councils run their finances”.

But devolution is not granting “control”, as there will be limits to what even the most ambitious local authority will be able to do in the face of any opposition from Westminster and Whitehall.

And there is also a respectable argument – which you may or may not endorse – than on issues such as transport and housing, there needs to be far less local autonomy, not more, so for us as to escape the ongoing blight of NIMBYism.

Starmer insisted in his speech that the “Take Back Control” will be turned from “a slogan to a solution”.

And it we missed the import of that rhetorical turn, Starmer then said it will be turned from “a catchphrase into change”.

(This is reminiscent of his predecessor Tony Blair’s wonderful statement once that “[a] day like today is not a day for soundbites, we can leave those at home, but I feel the hand of history upon our shoulder with respect to this, I really do.”)

But there is nothing in this speech which does go beyond slogans and catchphrases.

There is no substance to the supposed “controls” which are to be given “back”.

And there is nothing specific as to whom or what those “controls” are to be given.

You may have Very Strong Opinions on de-centralisation and devolution.

You may welcome Starmer’s speech as a good and welcome signal of change.

You may oppose it as it may mean impediments to policies which may need to be directed at the national level.

But what one cannot say is that it tells us much, if anything, about how de-centralisation and devolution is to work in practice.

And it says nothing about how – at least in England – local authorities can break free from the real controls of Westminster and Whitehall.

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Do referendums now have a special constitutional status? And has the Supreme Court made it far harder for the UK government to ignore the results of any further “advisory” referendum? Some fascinating passages in today’s Supreme Court judgment

23rd November 2022

This morning the United Kingdom Supreme Court gave judgment in the reference made by the Scottish government about whether the Scottish Parliament could legislate for a non-binding referendum on Scottish independence.

This post is not about the specific issue of the Scottish independence referendum, which I have commented on at the Financial Times.

This post is instead about some fascinating passages in the judgment about referendums.

By way of background, the usual position is that there is a binary: on one hand there is parliament, and on the other hand there are extra-parliamentary exercises, such as referendums and consultation exercises.

These extra-parliamentary things are usually seen as advisory.

Sometimes there is an exception – the electoral reform referendum would have had a direct legal effect had a majority supported change.

But generally, referendums and such like are glorified opinion polls.

Any mandate is political, not legal.

In today’s judgment, a unanimous Supreme Court seems to have put forward a different view (which I have broken up into sentences for flow and added bold for emphasis):

“78. The effect of the Bill, however, will not be confined to the holding of a referendum. Even if it is not self-executing, and can in that sense be described as advisory, a lawfully held referendum is not merely an exercise in public consultation or a survey of public opinion.

“It is a democratic process held in accordance with the law which results in an expression of the view of the electorate on a specific issue of public policy on a particular occasion. Its importance is reflected, in the first place, in its official and formal character.

“Statutory authority is needed (and would be provided by the Bill) to set the date and the question, to define the franchise, to establish the campaign period and the spending rules, to lay down the voting rules, to direct the performance of the counting officers and registration officers whose function it is to conduct the referendum, and to authorise the expenditure of the public resources required. Statutory authority, and adherence to the statutory procedure, confer legitimacy upon the result.

“79. That legislative framework is put in place because the result of a lawfully held referendum is a matter of importance in the political realm, even if it has no immediate legal consequences.

“That has been demonstrated in practice by the history of referendums in this country, and has also been recognised by this court.

“For example, in relation to the 2014 referendum on Scottish independence, Lord Hodge stated in Moohan v Lord Advocate […] with the agreement of the majority of the court, that “the referendum is a very important political decision for both Scotland and the rest of the United Kingdom”.

“In relation to the 2016 referendum on leaving the European Union, the majority of the court stated in R (Miller) v Secretary of State for Exiting the European Union […] : “[T]he referendum of 2016 did not change the law in a way which would allow ministers to withdraw the United Kingdom from the European Union without legislation. But that in no way means that it is devoid of effect. It means that, unless and until acted on by Parliament, its force is political rather than legal. It has already shown itself to be of great political significance.”

[…]

“81. A lawful referendum on the question envisaged by the Bill would undoubtedly be an important political event, even if its outcome had no immediate legal consequences, and even if the United Kingdom Government had not given any political commitment to act upon it.

“A clear outcome, whichever way the question was answered, would possess the authority, in a constitution and political culture founded upon democracy, of a democratic expression of the view of the Scottish electorate.

“The clear expression of its wish either to remain within the United Kingdom or to pursue secession would strengthen or weaken the democratic legitimacy of the Union, depending on which view prevailed, and support or undermine the democratic credentials of the independence movement.

“It would consequently have important political consequences relating to the Union and the United Kingdom Parliament.”

With regard to these “important political consequences”, the Supreme Court held that such a non-binding referendum would “in all the circumstances […] relate to” the reserved matters of the Union and the sovereignty of parliament, even if the referendum was not legally binding.

In particular, the Supreme Court emphasised that “statutory authority is needed (and would be provided by the Bill) to set the date and the question, to define the franchise, to establish the campaign period and the spending rules, to lay down the voting rules, to direct the performance of the counting officers and registration officers whose function it is to conduct the referendum, and to authorise the expenditure of the public resources required. Statutory authority, and adherence to the statutory procedure, confer legitimacy upon the result.”

A dedicated referendum, under a dedicated statute, is not to be taken lightly.

The key point in these passages is that “a lawfully held referendum is not merely an exercise in public consultation or a survey of public opinion”.

The import of this judgment would seem to be that dedicated referendums set up by statute now occupy an intermediate position in the constitution of the United Kingdom.

They do not bind parliament (or presumably the courts), but they are not mere opinion polls either.

Such referendums and their results are, as a judge may say, “seen”.

The results of these referendums have a force which, even if not legally binding, is legally recognised and which may, in certain legal cases, make a legal difference.

Perhaps this may have implications in certain legal cases where there are “legitimate expectations” that a public body will act or not act in a certain way.

Perhaps it may have implications for what will follow a border poll in Northern Ireland, or in a further Scottish independence referendum.

To an extent this is a judicial statement of the obvious political reality of referendums – but it is significant for it not only to be expressly acknowledged in a judgment but also (via “all the circumstances”) to have made a difference in this case.

Special referendums now appear to have a special constitutional status.

They matter and their results will be judicially recognised – even, as the Supreme Court expressly said here, if the United Kingdom government has not given any political commitment to act upon them.

If so, let us see what happens with the next one – that is, if there is a next one.

The consequential litigation may be fun.

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For and against changing the electoral system

27th October 2022

Here is a brief post on a constitutional topic that I have avoided on this blog: the electoral system.

This is a topic on which many of you will have Very Strong Opinions – and, as with a codified constitution and membership of the European Union, it may be difficult for you to comprehend why someone could possibly not be in favour.

But.

The value, at least for me, in the current system is twofold.

First, I think there is merit in one person being the representative for a distinct, meaningful area – for example, Birmingham Edgbaston, or the Isle of Wight, or the Western Isles, and so on.

This is especially so given the convention that Members of Parliament refer to each other by their constituencies.

It means that parliamentary debate is itself a congress of places and local identities.

One member constituencies also mean we have by-elections, which provide a form of accountability between general elections that can be surprisingly effective – for example, Johnson’s fall from office followed two huge by-election defeats.

Second, many systems of proportional representation seem to give disproportionate power to party lists and party managers, breaking the direct link between the voter and the candidates.

But, but.

Those two factors are not overwhelming, and perhaps can be offset by other factors.

It cannot be right for certain parties, such as the Green Party, to have so low a parliamentary presence given their national share of the vote.

The current party system is also somewhat artificial, and the parties are themselves faction-ridden coalitions kept together by the needs of the electoral system, and this just causes different political problems – as we have seen with both the Conservative and Labour parties in recent years.

The current system has not even avoided hung parliaments – for example, in the late 1970s, the mid 1990s, and between 2010-15 and between 2017-19.

And the powers of party managers and party lists is just exercised in different ways, with certain candidates benefiting from safe seats.

So my mind is not made up, and recent experiences have tested my assumptions in favour of the current system.

(I do not have Very Strong Opinions on every constitutional issue!)

Can a case be made for electoral reform which (a) does not involve name-calling of those opposed, (b) keeps the geographic links without giving party lists and managers too much power, and (c) keeps the possibility of by-elections as a potent political device between elections?

I open to persuasion – and so may be many others who have hitherto been wary of electoral reform.

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A close reading of Boris Johnson’s statement saying he is not standing for leadership

24th October 2022

Yesterday the former Prime Minister Boris Johnson provided a statement about not standing for the leadership of the United Kingdom’s governing Conservative Party.

I joked on Twitter that a close of reading of this statement was a joy – and I was then commanded by the highest of all temporal and spiritual authorities to do a post setting out why.

And so here it is.

A close reading of any text has to have regard to the (seeming) intentions of the author, the content of the text itself, and the relevant context(s).

Here we have a resignation but not a formal resignation – indeed, there was not even a prior application, formal or informal, to which this is a sequel.

It is not any form of a required text – it was instead volunteered by its author.

This means that more regard has to be made to (seeming) intention and context than otherwise, as there are no formal, required “buttons” to “press” with its content.

Now let us begin.

“In the last few days I have been overwhelmed by the number of people who suggested that I should once again contest the Conservative Party leadership, both among the public and among friends and colleagues in Parliament.”

See how the “I”s are buried in this sentence, so as to indicate that it is not really about him.

The references to “the number of people” and to “the public and among friends and colleagues in Parliament” is pretty much an exercise in duplication.

The author could have said more simply “In the last few days I have been overwhelmed by [encouragement] that I should once again contest the Conservative Party leadership, both among the public and among friends and colleagues in Parliament.”

But the author needs to emphasise the quantity of people, and so the double-egging of “the number of people”.

The “overwhelmed” also indicates that he is protesting too much – and, indeed, the context implies that he was instead underwhelmed.

He did not get enough support.

“I have been attracted because I led our party into a massive election victory less than three years ago – and I believe I am therefore uniquely placed to avert a general election now.”

The author was once a winner, and it is important that this is emphasised and that the reader is reminded.

There was not just a “election victory” but a “massive” one.

And it was not now some time ago, back in 2019, but only “less than three years ago”.

But it is the last part which is most interesting, where the author puts forward a false proposition about an imminent general election.

There is no imminent general election – and there cannot be one without the governing party wanting one.

So this is misleading.

The author then protests that he is not only well placed but “uniquely placed” to “avert” this non-existent imminent general election.

He presents himself as The One – “uniquely”.

And he uses “therefore” when he means “thereby” – a neat and deft trick to make the proposition seem stronger than one bare assertion leading from another.

“A general election would be a further disastrous distraction just when the Government must focus on the economic pressures faced by families across the country.”

The “further disastrous distraction” means, of course, that there was a previous “disastrous distraction” – and here he can only mean his own loss of office.

The necessary implication of seeing his own loss of office as a “disastrous distraction” is that he is not contrite about how he lost the premiership.

“I believe I am well placed to deliver a Conservative victory in 2024 – and tonight I can confirm that I have cleared the very high hurdle of 102 nominations, including a proposer and a seconder, and I could put my nomination in tomorrow.”

Ah, the “well placed” line – a feature of a million job application letters, where the applicant cannot think of a better way of boasting that they are fit for a vacancy.

This follows the “uniquely placed” just two sentences ago, and it is saying the pretty much same thing: his electoral prowess.

Also note the passing mention of 2024, as for when this election should be.

Then we have “tonight I can confirm that I have cleared the very high hurdle of 102 nominations”.

Not just a hurdle.

And not just a high hurdle.

But a “very high hurdle”.

And he has “cleared” this hurdle.

This is energetic imagery.

The superfluous “I can confirm” – like the “therefore” in a previous sentence – is intended to make a proposition seem stronger.

Of course, in context, this is an unimpressive proposition, as his supporters have claimed for days that he had over a hundred nominations.

He is now reduced to claiming that he has managed 102 (or perhaps more).

The detail of “including a proposer and a seconder” gives an impression of desperation.

The crescendo of this sentence is “I could put my nomination in tomorrow” is an attempt to convince the reader and perhaps also the author.

Of course he could.

“There is a very good chance that I would be successful in the election with Conservative Party members – and that I could indeed be back in Downing Street on Friday.”

Not just a chance.

And not just a good chance.

But “a very good chance”.

“But in the course of the last days I have sadly come to the conclusion that this would simply not be the right thing to do. You can’t govern effectively unless you have a united party in parliament.”

But.

Having bigged himself up as the one who is “uniquely placed” to avert an imminent general election (which will presumably now have to take place) and “well placed” to give his party a general election victory in 2024, he now says it is not actually in his party’s interests for him to avert this looming defeat and claim this brilliant victory.

It would “simply not be the right thing to do”.

Why?

Because, he says, “You can’t govern effectively unless you have a united party in parliament.”

Seemingly gone is the “overwhelming” support he has in the party from the start of the statement, and gone also is the support that enabled him to “clear” a “very high hurdle”.

The support, in fact, is not “overwhelming”.

His candidature would split the party so much that he would not be able to “govern effectively” – even though he contends he is “well placed” to govern so effectively as to achieve a general election victory in 2024.

None of this adds up.

“And though I have reached out to both Rishi (Sunak) and Penny (Mordaunt) – because I hoped that we could come together in the national interest – we have sadly not been able to work out a way of doing this.”

With “reached out” we switch in style from the hapless job application to irksome public relations verbiage.

The context here is that the other two contenders rebuffed him.

The framing of this sentence is to blame the other two contenders for rejecting his approach: they are the ones who are not thereby acting in the “national interest”.

He is the statesmanlike goodie, and they have let him and you down.

And you are to be “sad” at this outcome.

“Therefore I am afraid the best thing is that I do not allow my nomination to go forward and commit my support to whoever succeeds.”

Hello, here is “therefore” again, seeking to add gravity.

Just sentences ago he had “come to the conclusion that [becoming leader again this week] would simply not be the right thing to do”, and now – separately – he is saying he has concluded because of another reason that “the best thing is that I do not allow my nomination to go forward”.

Given he had already decided this before “reaching out” it makes no sense for him to say that the rebuff is the reason he did not “allow” his nomination to go forward.

The author wants us to believe he is both a wise statesman and the unfairly scorned reject.

He wants both the credit for not standing and for others to be blamed for him not standing.

He wants the king-making cake, and to eat it.

“I believe I have much to offer but I am afraid that this is simply not the right time.”

Well.

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