Category: Democracy, Elections and Voting

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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‘It was Remainers All Along’ – Brexit and Wandavision

9th April 2021

SPOILERS AHEAD FOR THE TELEVISION SERIES WANDAVISION

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The recent Marvel and Disney-Plus  series Wandavision was a brilliant – almost perfect – piece of television.

In particular it played to the strengths of a story told in periodic instalments, while playing with and exploiting the conventions, techniques and lore of other great television series over seventy years.

But there was part of the story – a misdirection – which makes me think of the current blame games about Brexit.

You may know this misdirection by a merry little song.

That it was ‘Agatha All Along’. 

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At the point of the series we are introduced to this lovely ditty, there is plausibility to it all being down to the rival witch Agatha.

And indeed: for many her theatrical wink is the compelling tell.

It must have been Agatha all along.

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Except, of course, it was not Agatha all along.

For although Agatha had a certain impact on the plot and the characters, the real causes of the predicament as set out in Wandavision are elsewhere.

The problems instead flow from deeper dislocations, and from distortions of reality, and from the limits of magical thinking.

A false – and ultimately flimsy – world is created, but it is unsustainable and so it comes crashing down.

Happy nostalgic images of the 1950s – and of other decades – are ultimately mere make-believe constructs.

Sound familiar?

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The state of Brexit at the moment is such that it is understandable that those who urged the departure of the United Kingdom from the European Union at such speed and with no planning are looking to blame others.

But it is difficult to blame Remainers.

Those blaming Remainers for the shape of Brexit forget that Remainers were not even capable of winning a referendum.

Remainers also had a real opportunity to delay Brexit – or at least have a further referendum – in the the months before the December 2019 general election – and they were not even capable of accomplishing that either.

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At each important point of Brexit – and especially in the crucial few months after the referendum result – the government and its political and media supporters prioritised speed and lack of substance over everything else.

Hardly a thought was employed as to the implications of ‘red lines’.

And once there was an agreement text, the race was on to ‘get Brexit done’ as swiftly as possible, with no proper consideration as to what was being agreed.

As I have averred over at Twitter, the withdrawal agreement and the Northern Irish protocol were the result of five distinct political steps taken by the prime minister Boris Johnson.

https://twitter.com/davidallengreen/status/1380216279232040972

 

The shape and manner of Brexit has many causes – but the overriding ones are specific political decisions made by pro-Brexit governments and parliaments when they had majorities in the house of commons – before June 2017 and after December 2019.

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One cannot sensibly hold that Remainers can be held primarily responsible for anything to do with Brexit – other than complacency before the June 2016 referendum and ineptitude before the December 2019 general election.

Of course, there will be Remainer ‘leaders’ – professors and lords and QCs – who like Agatha may tweet theatrical winks to the camera.

And this may in turn provoke Brexit supporters into singing that it was ‘Remainers all along’.

But the tune does not make it true.

It was Brexiters all along.

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Now there are worrying calls for restricting the franchise

7th April 2021

Over at the American site National Review there is a call – in all seriousness – for the franchise to be restricted.

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(‘Don’t give oxygen to such things,’ demand those unaware that ‘not giving oxygen’ to Trumpism and Brexit did nothing to stop the rise of such notions – but this is a law and policy blog and it exists to offer comment on such developments.)

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The contention at the National Review moves from the fact that as there are certain restrictions on voters – for example, felons – to urging that there should be other restrictions.

The entire piece is a practical exercise in political sophistry.

Yet it was commissioned for and published on a well-known website.

It is an attempt to re-open debates that one would have thought were long settled.

It is nothing less than an effort to re-impose Jim Crow type voting restrictions.

It is a dangerous development.

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This law and policy blog is written from a liberal rather than a democratic perspective.

That is say that there are certain things – such as fundamental human rights – that should not be subject to votes.

Even if a majority of people supported the torture of one human being, that torture would still be absolutely wrong.

Such a liberal perspective is alert to and wary of the consequences of populism and demagogues and majoritarianism.

Democracy can be illiberal – and just because a thing has a democratic mandate, it would not make a thing that is fundamentally illiberal right and proper.

But.

When things are subject to democratic oversight and control, then the votes should be equal and the franchise as universal as possible, and there should not be ‘super-voters’ with more democratic power than others.

In the United Kingdom, it actually used to be the case that such privileged voters did exist – those with more of a ‘stake’ in the community would/should have a better chance of a vote – and these were bog-standard arguments in the lead up to the 1832 reform act.

In the United States, such arguments were used to in effect disenfranchise slaves and those descended from slaves.

The anti-democratic arguments now being put forward have not really been put forward so earnestly and with such force since the 1800s.

It is almost as if the ‘march of democracy’ has not only halted but is now retreating – a corrective to the simple notion of linear political progress.

Authoritarianism and anti-democracy, like illiberalism, has never really gone away – it just was not so prominent for a while, at least in the United Kingdom – making liberals and progressives complacent.

Perhaps such anti-democratic views are just a blip – and we will carry on heading towards the right side of history.

Or perhaps there is no natural line of political progression – and every generation has to win the arguments for liberalism and democracy afresh.

The post-2016 anti-democratic, illiberal turn is not over yet.

Brace, brace.

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