Category: Democracy, Elections and Voting

Democracy vs Liberalism – the worrying but significant 2014 speech of Viktor Orbán

29th May 2021

One of the more complacent views of the last few decades is that there is a necessary link between democracy and liberalism.

The notion that if you believe in one then you believe in the other.

And, in turn, there is the converse view – that illiberals will tend to be undemocratic, if not actively anti-democratic.

This is assumption is evident in a spate of books over the last few years about the death of democracy where, if you read carefully, they describe the (possible) death of liberal democracy.

For – and this is still a shock for many – there is nothing necessarily liberal about a democracy.

It is possible – and indeed not uncommon – for a conservative bloc to mobilise sufficient support to prevail in elections.

There can sometimes even be sufficient conservative support for illiberalism to be majoritarianism.

Liberal democracy is only one form of democracy (and, also, of liberalism).

The notion that illiberals are also undemocratic, if not anti-democratic, is a comforting notion for the superficial liberal.

The truth is that in any democratic system there will be a great deal of opposition to liberal views.

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Here it is instructive to read this 2014 speech (in translation) by the Hungarian prime minister Viktor Orbán – who visited the United Kingdom this week.

It is a speech that should be read in full by any liberal and anyone else who wants to understand the illiberal turn in modern politics.

It is perhaps, in its way, one of the most politically significant speeches of recent years – though what it signifies is not pleasant.

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One of the things that stands out is in the speech that it is openly – explicitly – ‘illiberal’.

An exposition of liberalism is set out (and not altogether inaccurately) and then critiqued.

This dismissal of liberalism is unapologetic.

It is blatant, with no sugar-coating.

Orbán is an illiberal and he knows it, and he claps his hands.

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Another thing that stands out is that – unlike many Western (supposed) defences of (and apologies for) liberalism, it is not flimsy.

It is an articulation of an illiberal position.

The position being articulated is vile and wrong, but it is not superficial.

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A third thing that stands out, of course, is that it does not really explain, still less justify, the specific assaults on civil society in Hungary of his government – it is a speech which largely stays in the realm of the abstract.

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And the fourth thing which is striking about the speech is that – on the face of it – it is not an undemocratic speech – it is the speech of a politician who seems confident that there will be sufficient political support for illiberalism within a democratic system.

It is even a speech of a politician who does not see membership of the European Union as being incompatible with his illiberalism.

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This blog is written from a liberal, constitutionalist perspective.

But as a practical blog, it is not enough to disdain illiberalism, let alone deride it.

As the old saying goes: know your enemy.

Scoffing at Orbán – just like sneering at Donald Trump or Boris Johnson – is not a complete political answer to the challenges presented by modern illiberalism.

As long as these individuals and their parties can mobilise their bases, they will use political means to defeat or hinder liberalism, and they will claim to be democratic in doing so.

The ‘will of the people’ is rarely invoked by those who respect the wills of individual people.

And what happens when liberal democracy is, well, trumped by democracy itself?

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Wanted by HMG: Someone to make sense of Brexit

17th May 2021

Some things are almost beyond parody.

The government of the United Kingdom, almost five years after the Brexit referendum, wants help on identifying post-Brexit opportunities. 

The natural response to this is, of course, to laugh like a drain – and to then despair.

But it also worth reflecting on.

One of the strengths (if that is the correct word) of the Leave campaign was that it was primal in its message – and what is primal is usually inexact, if not vague.

And with such primal force, Leave won and the Remainers lost.

Brexit was forced through.

But for every strength there is a weakness.

And at this point of the process, those who have forced Brexit through will say, in effect: ‘what now?’

Those who were opposed to Brexit will scoff and hope that such an implicit admission discredits the cause of Brexit.

But what has power because of a lack of detail will usually not falter because of a lack of detail.

There was never any particularised plan for Brexit: it was instead a political roar of anguish and defiance and (for many) misdirection.

David Frost could go even further and say freely and expressly: we want outside input in identifying opportunities because we do not have a clue what to do next.

Those who supported Brexit would either shrug or nod at the sentiment.

And as a wise person once said: there are no problems, only opportunities – it is just that some opportunities are insoluble.

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This illiberal Queen’s Speech is the next step for authoritarian populism after Brexit

11th May 2021

Well, that was quite the Queen’s Speech.

A legislative programme geared to make a certain sort of person grin and clap and cheer about ‘owning the libs’.

But it is not just about mere superficialities – it is in substance a multi-pronged attack our liberties.

The prime minister is not only taking back control of when there will be general elections, the government is making it harder for people to vote.

The government is also making it harder for government decisions to be challenged in court, and it is making it harder for anyone to protest about any of this.

https://twitter.com/davidallengreen/status/1392125915543523330

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Of course: this is not a surprise.

Five years ago, senior members of the governing party affected to want to give effect to the ‘will of the people’.

But, as is often the case with authoritarian populists, the supposed mandate of the people was only ever a convenient rhetorical device for ever-greater central control.

And the sorry state of our politics means that the government will probably get away with this.

There may be opposition in the house of lords – and some measures may be open to legal challenge.

Yet, even with the few remaining checks and balances in out constitutional arrangements – this is what the government does as the next step after ‘taking back control’.

The impression is that Brexit was not about liberation, but about creating a political culture where the opposite of liberation – imposed authority – became more entrenched.

Our post-Brexit polity is now looking very dismal and depressing indeed.

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Defenders of the Union should argue their case on the merits, rather than hide behind technical legalistic points

10th May 2021

Those who are opposed to a further independence referendum for Scotland are making the same mistakes as Remainers in the Brexit debates.

On Twitter and social media generally – and in mainstream media – those opposed to a referendum (and thereby to independence) are taking the following techincal points:

– that the last referendum was supposed to be ‘once in a generation or lifetime’

– that there is no majority for the Scottish National Party in the Scottish parliament

– that enabling legislation is outside the legislative competence of the Scottish parliament

and so on.

As a veteran of similar debates over Brexit, these technical – almost pedantic – contentions seem familiar.

There were those who argued that the Brexit referendum had no political purchase because it was ‘advisory’.

There were others who – until quite late in the Brexit process – denied that Article 50 had actually been triggered and sought to make legal challenges on this basis.

The feature of these positions is that they said nothing about the merits – or otherwise – of Brexit.

And similarly the pedantic legalistic objections to a further independence referendum for Scotland also say nothing about the merits of either a referendum or independence.

Indeed, each time one of these pedantic legalistic contentions is made, an opportunity is lost to make a case on the merits of the Union.

As I can aver as a pedantic legal commentator, few if any voters are influenced in their vote by pedantic legalistic points.

The impression given by reliance on such contentions is that they are substitutes for arguments on the merits.

A confident supporter of the Union should say about a referendum ‘bring it on – and let me show you the merits of the Union’ – rather than trying to evade or avoid a referendum on technicalities.

That is if there is a case for the Union on the merits.

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Why public inquiries are often an admission that the other elements of the State have failed

2nd May 2021

It is a familiar routine.

Something horrible has happened and somebody is to blame, and so the demand is made that there is a public inquiry.

There is nothing wrong with this demand.

Indeed, this blog yesterday averred that the the inquiry into the Post Office scandal should be placed on a formal basis, with powers to compel evidence.

Similarly, all sensible people want an inquiry started as soon as possible into the government’s handling of the coronavirus pandemic.

There are also many other subjects that would benefit from the focus and dedication of a public inquiry.

But.

Many public inquiries, and most demands for public inquiries, are also implicit admissions of failure.

The admission of failure is that the other elements of the state – primarily the executive, the legislature, and the judiciary – have failed in their roles.

That there has been insufficient control and transparency within the government, and/or that there has been insufficient scrutiny by or accountability to parliament, and/or a sense of general injustice lingering after attempts to litigate specific matters in the courts.

Of course, there are certain discrete issues where inquiries are appropriate and do work which could not have been done otherwise – for example, the Cullen inquiries.

But if the other elements of the state had performed their proper constitutional functions, key issues of transparency and accountability – that are the stuff of many inquiries, and of most demands for them – could be addressed more directly and immediately by elected politicians.

This, I know, is wishful thinking and no doubt the counsel of constitutional perfection – yet each demand for an inquiry is, like the ringing of a bell, often an indication of wider state failure.

Politicians are comforted and protected by this habit of thought – as they can say and nod solemnly that there should be (or may be) an inquiry whenever something goes wrong.

Lessons will be given and then learned by having an inquiry – but we will never learn the lesson that perhaps we should be catching problems at an earlier stage of the political process.

How can we shift exercises in transparency and accountability back to earlier in the political process?

To be dealt with parliamentarians, holding the executive to proper account?

There is no easy and obvious answer.

Perhaps we should have an inquiry…

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It is time for lobbying to return to the lobby – why transparency is more important than more rules

18th April 2021

Consider the following two statements :-

‘There should be a law against it.’

‘It has not broken any laws.’

Both of these statements are common utterances in political conversation, and they are both possibly said by any of us on depending on circumstance.

Both statements seem to be different.

Yet both these statements are about the same situation: (a) a wrong has happened and (b) no law has been broken.

The difference between the statements is the attitude of the person making the statements, whether ‘something should be done’ or ‘there is nothing to see here’.

No principle or substance separates the two statements, only political expediency.

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The prompt for the observations above is, of course, the unfolding lobbying scandal in the United Kingdom.

The former prime minister David Cameron and certain former officials have been shown to be doing things which, in the view of the many if not the few, they should not have been doing.

But, as this blog and others have averred, the individuals concerned have not broken any rules because (it would seem) there are no rules to break.

A cynic would say that a this is the reason why the current prime minister has ordered an investigation, as it will be inevitable that the individuals will be ‘cleared’ of any rule-breaking.

But being ‘cleared’ of any rule-breaking is not the same as being exonerated of any wrong-doing.

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The alternative response to the current situation is to call for more rules.

This in part stems from the view – almost a surviving form of magical thinking – that a thing will not happen because there is a rule against it.

Laws as spells.

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But what seems to be needed here is not so much more prohibitions, and more codes to (creatively) comply with, but more transparency.

There will always be lobbying – and there is nothing inherently wrong in a democracy with any person seeking to influence those with power.

The important thing is that it is not hidden from view.

That the public can see, if it wishes, the influences being exerted on public policy.

That there are public processes in place for those approaches and exchanges to take place.

In a word: a lobby.

Think about the word, which the internet tells us is defined as:

‘a room providing a space out of which one or more other rooms or corridors lead, typically one near the entrance of a public building’.

And this is the source of the word ‘lobbying’.

Lobbying took place in a lobby: a public or at least quasi-public space.

The time has perhaps come for the practice of lobbying to go back to its root – and for there to be a formal (and, if need be, virtual) lobby where there these exchanges happen and can be seen to happen.

It is perhaps time for the return of the lobby.

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Constitutions and court-packing

16th April 2021

Over in the United States there is a discussion about ‘court-packing’.

In particular, the question is about the new president should seek to nominate additional justices to the supreme court.

Some liberals and progressives are aggrieved at the current composition of the court.

A number of justices were nominated by Republican presidents who had not won a majority of the popular vote.

The Republican majority in the senate delayed one vote on a nomination and then rushed through another, with no regard to political consistency.

From a liberal and progressive perspective, these grievances are well-made.

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But.

From a constitutionalist perspective, there was nothing unconstitutional in a (Republican) president nominating new justices and a (Republican) senate deciding when to have the votes.

Both the delayed vote and the rushed confirmation were politically distasteful and discrediting.

But they were not unconstitutional.

Conservatives, however, should not take too much heart from this – as there is also nothing inherently unconstitutional about a president seeking to add justices.

This is because the constitution (though not federal legislation) is silent on the maximum number of supreme court justices.

If the Republican shenanigans about the appointment of supreme court justices was within the scope of the constitution, so may be any attempt to add new justices.

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A more fundamental question is about the role of the supreme court.

On the issue of abortion, for example, liberals and progressives have long depended on supreme court jurisprudence, especially Roe v Wade.

Yet it would be better and more sustainable to have fundamental rights sets out in legislation, rather than on the fragile basis of supreme court decisions.

A conservative majority on the supreme court is only as illiberal as the questions that will come before it.

If liberal and progressive policies are promoted and implemented by the route of legislation rather than litigation, then a conservative majority on the supreme court is less of a concern.

Liberal and progressive policies are always better secured by means of legislation rather than by court rulings.

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Cameron, May, Johnson – who, in constitutional terms, is the worst prime minister?

15th April 2021

Future students of history and politics will no doubt have to answer essay questions about who was the worst prime minister out of David Cameron, Theresa May and Boris Johnson.

And there is also no doubt there will be those who will aver that, say, Margaret Thatcher or Tony Blair was worse than any of those three.

Over on Twitter the comedian and writer David Schnieder offered his view:

 

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From a constitutionalist (and liberal) perspective, there is a case to be made against each of the three.

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Johnson, for example, switched the government’s policy on Northern Ireland and Brexit, negotiated and signed the Northern Irish protocol, and rapidly passed it into legislation without any scrutiny – and we are currently watching the fallout from this.

One can also put against Johnson that it was his switch from supporting Cameron and his political ambition that led May to adopting the hardline positions that she did on Brexit.

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It was May, however, who was responsible for the ‘red lines’ that meant that the United Kingdom would leave the single market and customs union, which in turn necessitated there having to be elaborate provisions in respect of Northern Ireland.

She is also the one that triggered Article 50 prematurely and without a plan, and she even sought to make this momentous notification without an act of parliament.

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But.

Cameron is the most culpable.

However bad May and Johnson have been, they were and are merely dealing (badly) with a situation created by Cameron.

Cameron staked the entire future of the United Kingdom on a single turn of pitch-and-toss – a simple yes/no referendum – assuming that, of course, he would win.

No considerations – let alone plans – were made for the contingency of the votes being for leave.

It was perhaps the most irresponsible domestic political act one can imagine in peacetime.

A ‘macro’ decision that, in turn, led to the bad ‘micro’ decisions of May and Johnson as they sought to give effect to the referendum result.

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And so Schneider may be wrong on this, at least in terms of what the United Kingdom is going through constitutionally.

Looking at it in terms of other policies, one perhaps could take a different view.

But I suspect future generations will be aghast and bewildered at Cameron’s folly.

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The judges are only the ‘enemies of the people’ when it suits the government

14th April 2021

For the government. and its political and media supporters, the judiciary are the ‘enemies of the people’.

The view is that that it is no business of activist judges to interfere with what ‘the people’ want.

It is a view that led the London government to oppose the supreme court determining the two Miller cases.

It is also a view that informs the current attempts by the government to limit judicial review and the scope of the human rights act – to the claps and cheers of many who (frankly) should know better.

But it is a shallow view, adopted out of convenience and partisanship.

For, when the political boot is on a different constitutional foot, the government suddenly values an independent judiciary being able to assess the constitutional propriety of a measure:

See Joshua Rozenburg’s detailed piece here.

Also note the response of the London government’s former chief legal official:

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From a political perspective, this referral prompts mixed feelings.

My political view is that a Scottish parliament can and should be co-equal with the Westminster parliament – as the legislatures in Canada and Australia are, even if nominally under the same head of state.

As such, it is frustrating to see the emphatically supported view of the Scottish parliament potentially stymied in this way.

But a political view is not always the same as a constitutionalist perspective.

And under the current constitutional arrangements of the United Kingdom, this is a question that can be referred to the supreme court – and as such there is nothing unconstitutional about the London government doing so.

(Whether those should be the constitutional arrangements is a different question.)

It is sheer hypocrisy – and there is not other word – for the London government, and its political and media supporters, to pick-and-choose when the supreme court gets to determine constitutional questions.

Either the supreme court is a constitutional court or it is not a constitutional court.

And it should not be regarded as only a constitutional court when the London government wants to face down Edinburgh, Cardiff, or Belfast.

A constitutional court is not and should not be regarded as an imperial court.

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Access to decision and policy-making is a right but not a privilege: David Cameron, lobbying, and regulation

13th April 2021

Let us start with one proposition, so as to see if it is sound or not.

The proposition is: that in a liberal democracy there should be no closed class of those who can seek to influence public policy.

Just as – in theory – any person can go to the lobby of the house of commons or write a letter to a member of parliament, any person can also attempt to speak to a minister or protest outside a ministerial office.

If this proposition is sound, then there is nothing, in principle, wrong with any person seeking to lobby any parliamentarian or minister.

And if that is a correct statement of principle, then it follows that the principle can be asserted by persons one disagrees with or disapproves of – including finance companies and former prime ministers.

Framed in this way there is a certain superficial plausibility to the contention that the former prime minister did nothing wrong in seeking to influence ministers about a company in which he had a personal interest.

Any wrongdoing would, it can be contended, be at the ‘supply-side’ of ministers and officials who wrongly were influenced by such lobbying, not the ‘demand side’ of the person seeking to obtain influence.

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Let us now look at rules.

As the estimable Dr Hannah White explains in this informative and helpful article, it would appear that the issue of Cameron’s lobbying is not about whether rules have been broken but that there appear to be no rules to be broken.

And so we have a gap.

https://twitter.com/davidallengreen/status/1381610539147726853

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But.

There is something wrong.

It may be that there are no rules that have been engaged, still less broken.

And it may well be that one can (just about) aver that the general principle of openness means that any person from you to Cameron can seek to lobby a minister.

But it still seems wrong.

Yet a general sense of wrongness is not the same as effective regulation.

What can be done, if anything can be done?

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Part of the problem is indeed with the ‘supply side’ – any approaches by any person, former prime ministers or otherwise, should be reported and logged, and those approaches must be spurned unless there is absolute transparency.

It is not enough that we have the ‘good chaps’ theory that, of course, no minister or official would be (wrongly) influenced.

The general principle that any person in a liberal democracy should be able to seek to influence a minister does not mean such approaches should be cloaked – the quality of openness that attends the former carries over to the latter.

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Switching to the ‘demand side’ of seeking political or policy influence, the general principle that any person in a liberal democracy should be able to seek to influence a minister does not mean that there has to be an ‘anything goes’ approach.

Just as everyone has the ‘right’ to dine at the Ritz – but it an empty right when one cannot afford it – a right to lobby those with power is an empty right if one does not have connections or the know-how about making such access effective.

Unless lobbying is regulated then there will be a natural tendency for those with money – such as a finance company – and those with the best connections – such as a former prime minister – to have far more effective access and influence than others.

This then undermines if not negates the rights of others, as influencing decision-making, rule-making and policy-making becomes the preserve of those with better connections.

It is the right of the privileged, but one masquerading as a a general right of openness.

Any company should have the right to make representations to the government – but only on the same terms as as any other company.

This would mean that it is the merits of the representation that makes a difference, rather than the extent of the access.

And any lobbyist – of whatever background –  should not have a greater right of access than any other lobbyist.

This means by implication that there are certain individuals – such as former ministers and former senior officials – who if they are to be permitted to approach their former colleagues, should only do so under the full glare provided by absolute openness and transparency, and in accordance with published procedures.

And if such absolute openness and transparency and procedural certainty is not feasible, then they should not be able to directly approach ministers and officials at all – even if it is in respect of their personal interest (as opposed to on behalf of a paying client, which is a gap Cameron was able to exploit).

They can write a letter to a member of parliament, or wave a placard on Whitehall, like anyone else.

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