Category: Democracy, Elections and Voting

The real problem with Beergate – and with Partygate

9th May 2022

There are many ways to look at the ‘Beergate’ political story – about the police investigation into what Leader of the Opposition did and did not do at (or after) a campaign function.

One way is to follow the political soap opera – and to ponder if the Leader of the Opposition will resign if he faces a penalty, if this will then backfire on the government supporters who have made this such a political story, and if voters will get tired and dismiss this and ‘Partygate’ with the shrug that says ‘they are all the same’.

Another way is to anxiously scrutinise the applicable law and to query whether the gathering was for work purposes or not.

And there is a third way, which requires stepping back to wonder if something more significant is going on.

Do ‘Partygate’ and ‘Beergate’ signify a shift in standard political tactics towards using reports to the police of one’s political opponents and encouraging investigations and sanctions?

For it is one thing to campaign against one’s political opponents.

But it seems another to actively seek that they face police attention.

Of course, from time to time – and in a society under the rule of law – politicians will get arrested, prosecuted, convicted and punished.

And that can be in respect of ‘political’ offences – such as regulate electoral matters – or more straightforward criminal activity.

Sometimes such investigations may have potentially important political implications – such as the cash for honours scandal about fifteen years ago, or the more recent parliamentary expenses scandals.

But in each of these cases, the involvement of the police seemed exceptional – and not part of the mundane, day-to-day politicking of Westminster.

And generally it seemed police involvement was not weaponised for political advantage (though there were one or two exceptions of minor Members of Parliament who liked referring matters to Scotland Yard).

Now, however, police involvement could not be more central to politics.

The fate of the Prime Minister and of the Leader of the Opposition depend, in part, on exercises of police discretion.

Not even a court is involved – just decisions of police officers as to whether it is reasonable to believe covid rules were broken.

(It would only become a matter for the courts if those police decisions are not accepted.)

Perhaps all this is just a one-off – just an extraordinary result of intrusive pandemic regulations that are no longer in place.

Or perhaps this marks a shift to using police involvement as a regular aspect of political activity.

So before we get carried away – one way or another – with clamouring for penalties to be imposed on which politicians you like least, perhaps we should think about where this is going.

For it may not be a good place for our politics to go.

**

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What the next Queen’s Speech may tell us about this government

27th April 2022

Yesterday’s I newspaper had this interesting front page about the upcoming Queen’s Speech:

The article supporting the front page told us:

“At least a dozen Government bills which were promised at the Queen’s Speech a year ago will not become law in time for the next speech which takes place on 10 May. Downing Street is seeking to push through another 10 pieces of legislation in the next few days.”

What is especially interesting about this front page is its timing.

We are more-or-less at the midpoint of this parliament.

The last general election was on 12 December 2019, and the latest date for the next election, it would seem, is 24 January 2025.

The next Queen’s Speech – which has been set for 10 May 2022 – will mark the start of the last full parliamentary session where there would be adequate time for any significant reforms to be properly carried through after enactment.

In other words: if the government was to attempt major changes through legislation, this is the time.

But.

This government does not appear to have the appetite for major reforms.

Promised overhauls of, for example, our complex systems for planning or procurement will again not be put forward.

The (impartial) House of Commons Library provides the following list of Bills promised in the last Queen’s Speech that are yet to be introduced:

(‘Procurement Bill’ sounds like a bloke who works in supplier management in a less exciting sequel to Postman Pat.)

The library also lists the bills ‘foreshadowed’:

But as any decent scriptwriter will tell you, foreshadowing is not character (or story) development.

And it would seem that this government finds it easier to announce fundamental reforms than to actually take them forward and implement those reforms.

The ultimate reason for this is simple.

Reform is hard, policy is hard, law-making is hard.

Getting one’s thoughts together to the extent of actually having a Bill ready to introduce to parliament is hard.

The first reading in parliament of a Bill is not stage one of a process, but about stage seven or eight.

The hard work takes place on the departments and with parliamentary drafters.

Handing a Bill to ministers to pilot through parliament is not to be done lightly.

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The former Downing Street adviser Dominic Cummings had – regardless of his other merits and otherwise – ambitious plans to shake our planning and public procurement regimes.

No sensible person with knowledge of planning or public procurement would say the current arrangements are perfect.

An ambitious, reforming government would now be ready to grapple with fundamental reforms in planning, public procurement, and many other areas.

And this government would be in a strong position to do – on paper.

For this government has the greatest prize that the constitution of the United Kingdom can bestow: a large working majority in the House of Commons.

This means the government not only has all the advantages of extensive executive power (under the royal prerogative and otherwise), and access to the government legal service and the treasury panel of barristers for fighting cases in the courts.

It also means that the government can be confident of passing legislation through the House of Commons and, if necessary, forcing it through the House of Lords too.

Few Prime Minsters win this prize.

Clement Attlee had this prize, and used it to drive through welfare state legislation; Thatcher did with trade union and privatisation legislation; and even Tony Blair, in his first term, was able to get the Human Rights Act and other legislation on the statute book.

And our current government?

Here is a challenge: take a moment to name one flagship Act of Parliament passed since the general election.

Yes, there has been Brexit and Covid legislation – but this would have to have been passed whoever won the last general election.

Can you think of one?

I am a law and policy commentator – and I can can only think of a possible few – though various nasty laws on borders and protests are about to come enacted.

Of course: Brexit and Covid have taken a lot of government and parliamentary time, as have Afghanistan and Ukraine.

But.

At this mid-term moment, a government with a large working majority should be raring to go.

Yet it is not.

It a government that cannot even be confident to block or amend a reference to the privileges committee about the Prime Minister.

As Norman Lamont once said of then Prime Minister John Major, we have a government in office but not in power.

And that was when Major government had a very small majority, not the working majority of nearly eighty of Boris Johnson.

So this could be a significant Queen’s Speech – but its true significance may be about what it does not contain, rather than what it does.

**

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Macron’s victory – and the ongoing predicament of liberalism

25th April 2022

For some the victory of Emmanuel Macron in France is not enough.

The victory over his illiberal opponent was not sufficiently crushing.

He is not an especially liberal politician himself.

And his illiberal opponents may do well in elections to come.

But.

An implicit assumption of those holding such views is perhaps that a ‘once-and-for-all’ blow could somehow be struck, knocking out the illiberals.

Unfortunately, like the poor, the illiberals will always be there.

The horrors of mid-twentieth century authoritarianism was not the only manifestation of illiberalism.

Nazism and Fascism were not the classic form of such illiberalism, but how it formed in certain places at certain times.

The price of liberalism, like that of liberty, is eternal vigilance.

And so: when there are wins, like there was in France – and Slovenia – yesterday, there is nothing wrong with cherishing and celebrating such victories.

But such elations and rejoicing are necessarily short-lived, for pretty soon liberalism is going to have to politically defend itself all over again.

And again, and again.

For if liberals – and progressives – become complacent, and think that history has ended with the right side winning, then you next get resurgent illiberalism – as in the United States and elsewhere.

The contest of liberalism and illiberalism is a struggle without end.

So after the claps and cheers, we return to the position of brace, brace, and we do what we can to avoid the crashes to come.

**

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The authority of Jackie Weaver – and what the Handforth council reports now show

30th March 2022

And so this blog returns to the unhappy local council at Handforth.

(It is now a town council and no longer a parish council, which is a bit of a shame.)

You will recall the viral (but edited) video of that Zoom council meeting.

And you will recall the now-immortal exchange:

‘You have no authority here, Jackie Weaver, no authority at all!’

[Silence]

‘She’s just kicked him out.’

[…]

‘Read the standing orders, read them and understand them!’

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A published analysis of the meeting concluded the following:

“on the face of the Standing Orders, Jackie Weaver did not seem to have the authority”

“Weaver did not have authority as ‘Proper Officer’”

“Weaver did not appear to have the formal power to exclude the disruptive councillors”

Those were, however, not the conclusions that were published and widely reported yesterday – but the conclusions of this blog at the time of the viral video.

That is what you can find when you – ahem – read the standing orders.

When you read them and understand them.

*

What has returned Handforth council to the news is that Cheshire East Council has now published (with redactions) six reports in respect of allegations of bullying.

These reports were requested in a freedom of information request – and although that request was refused – the refusal was on the basis that the reports would be published as part of a publication scheme.

And so yesterday was the day they were published – and they can be found here.

The reports are not pleasant reading – and they reveal an ugly culture of confrontation and bullying in local government that is perhaps not as widely known about as it should be.

In the reports there is – almost as an aside – a view taken as to whether Weaver did have the authority.

But that view is not the primary purpose of the reports – the reports are instead about the conduct of the councillors, and so it is interesting to see how this view on Weaver’s authority is taken in context:

That is quite a list of words for what Weaver faced: “aggressive… threatening… menacing… unnecessarily confrontational and disrespectful”.

The report avers: “Faced with what were unusual and difficult circumstances, and the deep-seated issues underpinning those circumstances, we can understand why [Weaver] acted as she did […]”

*

My blogpost last year took a relaxed view of what Weaver did in the circumstances.

She did not have the (formal) authority – but in the remarkable and unfortunate practical situation she was placed in, where a meeting should be going ahead but some councillors wanted to make sure it did not, the conduct of some of those councillors seemed to mean there was little choice for Weaver at the time of the meeting.

This blog also averred last year that the action by Weaver to place councillors in the Zoom waiting room seemed to have been subsequently ratified and affirmed by other councillors, though the published reports don’t take a view on that.

Weaver maintains that the “jury was still out” on whether she was able to move the councillors to the waiting-room, and she is reported as saying the following:

“We were still very vague about how virtual council meetings worked and I did not actually remove them from the meeting, in my opinion, I moved them to the waiting room.

“A little later in the meeting the remaining councillors voted to remove them.

“So I welcome the findings of the report but am deeply saddened that it took so long and cost so much to get there.”

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The six published reports are not investigations into Weaver.

They are instead investigations into serious complaints in respect of others – in which a view is taken on whether she had the authority.

And, as this blog concluded at the time, Weaver did not have the authority.

But the reports show the wider problem.

The wider problem is that others were not acting within the rules.

It was an almost-impossible position for Weaver or anyone else in her position, and it is not obvious whether, in the circumstances, a less-bad route was practically available at that meeting so as to ensure that the meeting continued.

One of the reports even concluded that bullying took place at the meeting:

While another councillor was not found to have bullied at the meeting was also found to have breached the code by their conduct:

Not bullying – but “unnecessarily confrontational and disrespectful […] There was no need […] to make comments that sought to discredit and question [Weaver]’s experience and professional integrity.”

*

Of course – it is understandable why the media are focusing on whether or not Weaver had the authority.

You cannot argue with a meme.

But that should be a starting-point, not a finishing-point.

The now-published reports indicate a troubling situation in local government: the confrontational, threatening and (in one case) bullying behaviour of councillors.

The lack of “authority” in all this is therefore a lot wider than any one person.

**

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Rees-Mogg’s claim about us becoming a presidential system

26th January 2022

While we wait for the Sue Gray report, here is something said by the Leader of the House of Commons Jacob Rees-Mogg:

Rees-Mogg, of course, is the government minister who gave the Queen the unlawful advice on prorogation.

You would think that him now promoting a presidential system would be a further discourtesy to the Queen in her platinum jubilee year.

But even on the substance of the contention, it is historically and constitutionally illiterate.

In the last fifty years only Heath (1974), Callaghan (1979), Major (1997) and Brown (2010) have ceased to be Prime Minister by reason of a general election.

In contrast: Wilson (1976), Thatcher (1990), Blair (2007), Cameron (2016) and May (2019) were all replaced as Prime Minister without any general election.

This is because we have a parliamentary system and, given our uncodified constitution, there are many ways by which a Prime Minister can be replaced without a general election.

Going further back, one can also look at the stark examples of Asquith (1916), Chamberlain (1940) and Eden (1957) – who all were replaced after their respective military misadventures without any immediate general elections.

Rees-Mogg is correct that, in terms of political-media culture, Boris Johnson projects a presidential style.

But this should not be confused with the constitutional position.

There is nothing to prevent there being a new Prime Minister without a general election.

And, indeed, until and unless the Fixed-term Parliaments Act is repealed, any more immediate general election would in any case require a majority in the House of Commons to support it.

The most concerning thing about this, of course, is the authoritarian implications of Rees-Mogg’s contention – for it undermines parliamentary democracy.

And this authoritarianism, and subversion of parliamentary democracy, is part of a worrying trend.

Brace, brace.

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The North Shropshire by-election – the End of the Spell of Brexit

17th December 2021

North Shropshire is about as Brexity and un-woke a place as you can imagine.

(Older readers will note that its member of parliament was once John Biffen.)

At the last general election – only two years ago – 35,444 voters in North Shropshire voted for the governing party candidate, Owen Paterson.

Yesterday, in the by-election caused by Paterson’s resignation, only 12,032 voters did so.

That is – on balance – 23,412 people who decided to not to vote again for the governing party in just two years.

(Of course, there are deaths and new voters – but there will not be that much churn in just two years.)

Two years ago, the pro-EU Liberal Democrat party could only get 5,643 people to vote for them in North Shropshire – and they did not even get into second place.

Yesterday in the by-election, an additional 12,314 voters did so.

I put these numbers in terms of actual voters as – for me – percentages and swings always seem a bit abstract (though, of course, they are important).

I am more interested in the numbers of actual people making actual voting decisions.

The effect of this shift is that a governing party majority of 22,949 (and of 29,801 over the then third-place Liberal Democrats) has flipped to a Liberal Democrat majority of 5,925).

That is one hell of a shift in actual people making actual voting decisions – especially in a place like North Shropshire.

And such a shift must be significant.

But significant of what?  What is being signified?

Here, any commentator has to be careful.

It is the easiest thing in the world for a commentator who did not predict a thing to then confidently explain the meaning of that thing once it has happened.

What I aver the result signifies primarily is that the ‘spell’ of Brexit may be ended – or close to an end.

By which I mean that, even in places like North Shropshire it is not enough for the governing party – and its political and media supporters – to incant ‘get Brexit done’ so as to protect and promote their electoral position.

It just isn’t working any more.

It did not mobilise the – on balance – 23,412 former governing party voters of 2019 who did not vote the same way again in 2021.

And it did not dissuade the – again on balance – additional 12,314 who voted for the Liberal Democrats who did not do so in 2019.

Of course, there were other issues – some local, some national.

Some may point to the Christmas party scandal, or to the coronavirus restrictions.

Some may even say that the by-election can be seen as a referendum on ‘lawyers from Birmingham’ – though that may be harsh.

*

Almost everyone with political opinions will find that emerging events – including unexpected ones – will affirm the political opinions they already hold.

But whatever the other things that the by-election may signify to you and to others – the one thing that can be said is that in one of the most Brexity parts of the countries, twenty-three thousand people did not vote again for the party that ‘got Brexit done’.

And twelve thousand people voted for the least Brexity party who did not do so last time.

If the hyper-partisan spell of Brexit was still hard and fast then that would not and could not have happened.

And so, to that extent, the spell of Brexit is broken.

******

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How if a business issued the government’s “40 new hospitals” guidance it would be acting unlawfully

1st December 2021

The current government makes much of its manifesto promise that it will build ‘forty new hospitals’.

But at prime minister’s questions today, the opposition leader referred to the following guidance for public officials (or ‘playbook’ as it is formally described):

So a ‘new hospital’ includes an additional new clinical building where there is an existing hospital.

And even the refurbishment (or upgrade) of an existing hospital, as long as it looks different from the outside.

Both of these are jolly good things to be welcomed, but no sensible person would call them ‘new hospitals’.

Yet the government is requiring public officials to say this untruth.

*

What if a business did this to consumers?

The Consumer Rights Act says things have to be as described.

Regulation 5 of the consumer regulations provides that an unfair commercial practice includes when a practice ‘in its overall presentation in any way deceives or is likely to deceive the average consumer in relation to…the quantity of the product’.

That reference to ‘overall presentation’ means that something hiding in the small print is not good enough as a legal escape.

If a business made such claims to a consumer then the law would regard this as ‘a misleading commercial practice’ and in breach of consumer protection rights.

Even without consumer law, claims that a major thing would be ‘new’ when it would either be merely an addition or a refurbishment would be likely – under general contract principles – to be either a misrepresentation that would mean the contract would be put aside or a material breach of a contract.

Indeed, some would go further and say such knowingly misleading statements in would even constitute fraud.

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The reason why these false claims are to be made so that it will appear that the governing party has met its own political manifesto commitment – and note how the manifesto itself distinguishes between upgrades and new hospitals:

‘Everyone in the UK should have the peace of mind and confidence that come from world-class health care – and so this new One Nation Conservative Government is giving the NHS its biggest ever cash boost, with 20 hospital upgrades and 40 new hospitals […]’

‘[…] have begun work on building 40 new hospitals across the country , as well as investing in hospital upgrades […]’

‘We will build and fund 40 new hospitals over the next 10 years. This is on top of the 20 hospital upgrades announced in the summer […]’.

Three times the promise is explicitly made in the manifesto.

*

Of course, law is not politics, and political language is not to be held to legal(istic) standards.

But.

It is rare to have official guidance – even if called a ‘playbook’ – which sets out how public officials are to describe something falsely as a new hospital when it is not a new hospital.

Not only are ministers lying to us, but ministers are now requiring public officials to lie too.

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The sordid return of ‘the will of the people’

10th September 2021

This government is abandoning manifesto commitment after manifesto commitment.

This is notwithstanding that, in a representative parliamentary democracy, it is only by manifestos that we have anything that approximates to mandates for a majority party returned in a general election.

Such manifesto commitments are not, it seems, binding commitments on the government.

But.

Elsewhere in government, the ‘will of the people’ is being invoked – and perhaps in the mist sordid and disgusting way imaginable to any any sensible and humane person:

Because of this policy, fellow human beings will die.

There will be those who will be dead tomorrow who otherwise would not be dead but for this policy.

This policy is not in any manifesto.

The invocation of ‘it is what people want’ is nothing more compelling than speculation.

But it is enough.

Because ‘it is what people want’ then other people will die.

This is a ‘pick and choose’ approach to representative democracy.

Things that had been explicit in a manifesto on which people people had actually voted are casually discarded.

And by reason of the slogan ‘it is what people want’ lives of fellow human beings will be just as casually discarded.

The common feature is executive arrogance.

Ministers believe they can do as they wish to anyone, regardless of actual mandates.

This does not mean well for our democracy.

Brace brace.

**

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To Brexit and back again: how political ‘mandates’ have returned to meaning nothing

6th September 2021

Long ago, before 2016, ‘mandates’ were not taken that serious in the politics of the United Kingdom.

To the extent that a mandate from a general election made any constitutional difference, it meant that in practice (and by convention) the house of lords would not block anything that had been in a manifesto of the majority house of commons party.

There certainly was not any firm obligation on the government to bring each manifesto commitment to the floor of the house of commons, let alone pass any legislation.

And from time to time – for example, with the poll tax (‘community charge’) endorsed in the 1987 general election – a government will reverse a policy contained in a manifesto within the same parliament.

Because, long ago, mandates were seen as weak things in our representative, parliamentary democracy

And then.

And then came the 2016 referendum on membership of the European Union, which had a small though clear majority in favour.

This result – in a non-binding referendum – became ‘the will of the people’.

The result was a mandate that no person or institution would be allowed to gainsay.

If senior judges said that there needed an act of parliament for the Brexit notification to be made, they were howled at as ‘enemies of the people’.

Members of parliament opposed to the departure were similarly denounced.

An electoral mandate was no longer a weak thing.

The mandate was the strongest thing in politics.

A force so strong that nothing could stand in its way.

And then.

The United Kingdom departed from the European Union.

Now, the same government that insisted that ‘the will of the people’ was absolute is now seeking to renege on its manifesto commitments.

The international aid budget has been cut, and it looks like the ‘triple lock’ commitment and tax commitment are both going, perhaps this week.

The government no longer cares that much about mandates.

The government no longer cares about the will of the people as expressed through a ballot box.

Mandates are weak things again.

It has been a strange few years, politically.

**

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Why the Michigan election law judgment is a Judgment for the Ages

27th August 2021

The primary purpose of a reasoned court judgment is not to be a historical document.

The primary purpose of a reasoned court judgment is for the here-and-now: it is a practical document to explain why the court made a particular order (or did not make an order) or otherwise disposed of the claim or matter before it.

To the extent to which that judgment contains anything of general interest to future generations of historians is (or should be) incidental

Yet.

Every so often there are judgments that you hope will speak to the ages.

Judgments to tell future generations about things in the here-and-now that they may not otherwise understand.

And the judgment handed down recently by Honorable Linda V. Parker of the United States district court for the eastern district of Michigan is such a judgment.

It is a judgment for the ages.

It is a judgment that (one hopes) will tell future generations that the American courts of our time had not gone completely mad.

It is a long judgment – but once you start reading it is compelling, and you are well into it before you realise.

The first paragraph is itself a banger:

And then it gets better, and better.

In essence: it sets out in readable detail how pro-Trump attorneys deceived the court again and again, and it sets out why that was again and again wrong.

The flavour of the judgment can be gained in this outstanding Twitter thread:

Click on and read the judgment here – and (if it is the right word) enjoy.

**

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