Tag Archives: constitution

You can’t be a half-iconoclast

If there’s a problem with the Unspoken Constitution its that it barely qualifies as satire. The shenanigans surrounding MPs’ expenses, Carter-Ruck’s single handed attempt to rewrite the UK constitution to favour their client Trafigura and this torrid little paper sneaked out by the Ministry of Justice today (which patiently explains why Royal Prerogative powers are, in fact, all wonderful and the only thing that stands between us and authoritarianism), all amply illustrate that Stuart Weir and co’s attempt to write the famously unwritten constitution is more a reflection of reality than an exaggeration of it. A Modest Proposal is satire. Yes, Minister and The Thick of It are satires. The Unspoken Constitution is merely frank.

I have to admit to finding this week somewhat depressing in that it is clear that a great many MPs have returned from recess determined to shut down any further discussion about reform and that, to an extent, they are succeeding. The media itself has been very helpful in this respect, detailing the process almost moment-to-moment but almost entirely lacking in analysis. Let us not forget that the people who are now complaining about the unfairness of Sir Thomas Legg applying new rules to them retrospectively are for the most part the same people who attempted to keep this little scam of theirs shrouded in secrecy – in defiance of the law – for years. All the indications are that for the most part, they still haven’t learned why that was an utterly stupid and damaging thing to do.

The media, frankly, loves the status quo because it means it can write about politics on its terms. Everything can be about story; the notion that politics is about a battle of ideas takes a back seat. There has, if truth be told, always been a tension between the two, but the latter took a distinct turn for the worse 20 years ago and has never recovered.

The paucity of vision in politics today was on display at the Vote for a Change/All-Party Parliamentary Group for the Continuation of First Past the Post debate on Tuesday. I won’t attempt to sum up the debate because there wasn’t one to speak of; as Oona King pointed out very early on, almost everyone in the room had made up their mind already so what was the point? But I was struck by the number of MPs who stood up and waxed lyrical about how they regard their main role being to represent their constituents and their constituency, above all else.

Historically, that is quite a new notion and I know it is a notion that has a lot of support within the Lib Dems. But it is a dreadful one nonetheless. MPs’ primary role is to scrutinise – both the executive and legislation. Their first duty should be to the national interest, surely?

I’m not suggesting, incidently, that a sense of place for MPs is unimportant or that local issues should play no part. My beef is with the notion that this should be the priority. What’s worse is that it is a fiction to suggest that they do. Most MPs put party loyalty above parochial concerns most of the time. Local campaigns can force them to abstain or even defy their whips, but only if a lot of pressure is created. True, MPs are generally more likely to defy the whips than at any point in the recent past, but this is still the exception rather than the norm.

Either way, the notion of the MP as an independently minded individual who cares passionately about working within the system to bring forth their vision of the good society is extremely unfashionable. This is true whether we are talking about party politics or even this current vogue for indpendents; in fact, when it comes to the Martin Bells, Richard Taylors and Jury Teams of this world, ideas appear to have gone out of the window entirely – at least political parties have manifestos still. What I found on Tuesday was that the supporters of FPTP were united in arguing for this idea of parliamentary politics.

It’s a real problem for supporters of proportional representation because it is an argument that holds real resonance amongst the public. Who wouldn’t want an MP who is committed to doing whatever you tell them to do (leaving aside the fact that there will be 70,000 other constituents with competing interests for one second)? This idea of the ultra-local politician has taken a firm grip in the popular psyche; people even imagine that it was ever thus.

The problem for electoral reformers is that thus far we have failed to take on this argument. Worse, a great many electoral reformers actually agree with it. I’ve lost count of the number of times I’ve heard people tell me that they are a) pro-proportional representation and b) in favour of retaining the constituency link. It is one of the main arguments that people who support the Jenkins system assert.

I don’t believe we can ever win the argument for proportional representation until reformers can agree that what we need is a radically different kind of politics. Each time someone argues for essentially the status quo with a few tweaks to neutralise the worst aspects of it, they concede almost all the ground to the other side. It becomes, essentially, a narrow and technocratic argument about systems and practicalities. The moral force behind the argument for PR is entirely lost. We might as well not bother.

Ultimately this argument applies to the reform debate more widely and brings me back to The Unspoken Constitution. Our current system has become so toxic that the time for incrementalist change is now past. We need a fundamental shift, not an attempt to meet the status quo halfway. Tim Garton Ash is correct when he says that the Lib Dems aren’t arguing for this any more and that it is a crying shame. What’s odder is that Nick Clegg’s language nine months ago – before the MPs’ expenses scandal erupted – was significantly more radical. Even Cameron comes across as more forthright on this area now, even if he is hopeless when it comes to specifics.

Maybe it doesn’t poll well, but I’m not convinced that sounding like everyone else does either. Either way, the lack of a clear iconoclastic liberal voice in this debate at the moment is lamentable.

Dangerous Complacency over the Damian Green affair

Sniping at Tory mendacity aside, I can’t help but feel a palpable sense of complacency in the Observer today over the Damian Green affair.

First up, we have the normally sensible Vernon Bogdanor. WTF? It doesn’t take a Professor of Government at Oxford University to tell you that the police actions were constitutional. The “virtue” of our unwritten constitution is that pretty much anything the state decides to do is, unless Parliament has the foresight to see that it might happen and the backbone to prevent it (that would be a no, then). The real question is whether it should happen in a democratic state. And here it gets murky: I would be the first to argue that individual MPs should have some kind of exemption from the law. But that isn’t the same thing as saying that the office of Member of Parliament should be treated in the same way. I am hardly the first to point out that we expect MPs to deal with confidential information on a daily basis. It may well be the case the 19th century convention dictates that parliamentary privilege is limited to the floor of the Commons itself, but we live in the 21st century now. If that privilege doesn’t extend to MP’s hard drives and filing cabinets, it bloody well should do. And the whole point about conventions is that they can be revised with a wave of the hand. All it took was Michael Martin to say no, and that would be that.

Bogdanor also magics up this straw man:

‘If an MP were accused of theft and keeping stolen goods in his office at the House of Commons, should he be exempt from a police investigation?’

…to which the answer is of course no, but how can you compare that to receiving leaked information? If the test is, did Green do anything as serious as theft, then it is a test he will almost certainly pass by any measure. It is an utterly daft thing to say.

Andrew Rawnsley nails a lot of Bogdanor’s flummery in his article, pointing out that the 18th century law that Green was arrested under should have, if it was not a dinosaur statute that should have been scrapped alongside the law banning Welshmen from Chester years ago, have resulted in both Gordon Brown and Winston Churchill being banged up. But so caught up in the political mess of it all, Rawnsley too lapses into complacency, arguing that because the government is the big political loser in all this, and because no-one is being arrested for calling the UK a “police state” we have very little to worry about.

Yet this is classic wedge politics. I’m trying to avoid referring to boiling frogs here, because that is an unforgiveable cliche, but how much more ground do we have to give up before people like Rawnsley will accept that enough is enough? As he more or less acknowledges in his article, yet another line has been crossed. We’ve had two solid decades of lines being crossed now. The fact that we don’t live in a police state (and we don’t) doesn’t mean we can afford to dismiss it every time we take a baby step in that direction.

It can be no coincidence that this arrest happened during an interregnum period at the Met and a day after Parliament “prorogued” (a fancy word people use to make themselves sound intelligent which means Parliament wasn’t sitting, as it won’t do until Wednesday). Equally deliberate was Jacqui Smith’s act on Andrew Marr this morning, waggling her eyebrows meaningfully and casting innuendo about how there may (or may not) be important principles of national security at hand here (bombs! terrorism!) while, oxymoronically, continuing to emphasise the right of opposition MPs to “embarrass the government” (which speaks volumes about her real attitude towards scrutiny).

Ironically though, if the issue behind the raid is genuinely as serious as Smith implies, the way the police went about it was even less forgiveable. If this really is a matter of national security, then both Cameron and Green (Clegg too would be nice) should have been invited to a meeting in New Scotland Yard, had the nature of the threat spelled out to them, and asked for cooperation. Is anyone seriously suggesting that they wouldn’t have complied? In the event, the high profile of this arrest would have almost certainly damaged any corresponding intelligence work.

But the most startling thing about the Observer today is what’s missing: no article by Henry Porter. This is the journalist who has chronicled Labour’s raid on civil liberties for the past half decade and who has been warning of just this sort of behaviour. So what does the Observer do? Give him a day off. Notably, there isn’t a “Henry Porter is away” notice at the bottom of William Dalrymple‘s piece where Porter’s column can normally be found.

Notwithstanding the importance of the Mumbai massacre, it is an odd decision. It isn’t as if they dedicated pages elsewhere to the Damian Green affair – it only warranted a single page of news.

Thanks largely to Henry Porter, the Observer has acquired a strong reputation as a champion of civil liberties. I do hope that, as it comes to the crunch, it doesn’t start getting cold feet.

UPDATE: Henry Porter has an article today about the Damian Green incident on Comment is Free. Judging by the length, I’m guessing it was written for Sunday’s Observer.

Parliament should have scrutiny powers? How radical can you get?

If you want evidence of how weak the UK’s model of Parliamentary democracy truly is, you only need to glance at this article:

Parliament should be able to bypass ministers and launch its own inquiries into issues of “exceptional” public concern such as the Iraq war, MPs say.

This is a power that pretty much every single Parliament in an established democracy takes for granted. It goes to the heart of the point of democracy, yet here it is considered to be radical and should be reserved for “exceptional” circumstances.

Meanwhile, the government’s Constitutional Renewal Bill, which was supposed to usher in a new era of Parliamentary scrutiny, only actually codifies existing conventions on things like the government’s (or “Crown’s” if you will) war and treaty-making powers, and actually proposes to reduce scrutiny of the attorney general. Even Charlie Falconer dismisses it as “trivial“. That is what Gordon Brown chose to launch his premiership on all those months ago – a complete figleaf. Is it any wonder his government is collapsing like a compost heap on a sunny day?

Secret plot by Tory donor to rewrite UK constitution by the backdoor

The UK, famously, does not have a codified constitution. We have the beginnings of what is vaguely termed a “supreme court” but it explicitly does not have a constitutional role.

How, therefore, does Stuart Wheeler intend to argue the case for his proposal to judicially review the government’s decision not to progress with a referendum on the Lisbon Treaty?

To do so would not merely overturn a government decision but effectively a Parliament decision (which has not, lest we forget, actually been made yet). That would mean junking, out of a very high window from St Stephen’s tower, the long cherished notion of Parliamentary sovereignty.

I thought Euro-sceptics loved the notion of Parliamentary sovereignty? Of course, their affection for referendums (albeit only on their terms) does somewhat undermine that view, but surely they haven’t let go of their opposition to the idea of codifying the constitution so that it can’t be simply overturned by a parliamentary vote? If they suddenly love judges deciding everything so much, why the opposition for the Human Rights Act?

Wheeler believes he has an “excellent” chance of winning. I don’t, I should emphasise, share his confidence. But if he does, he will succeed in getting the High Court to completely and utterly rewrite the UK constitution from first principles onwards, with no public or Parliamentary debate and at the behest of a millionaire who made his money through the rater morally dubious route of the gambling industry. Isn’t our “flexible” constitution wonderful?

What is a constitution?

It seems I am caught between a rock and a hard place. On the one hand, the Lib Dem PP’s refusal to back a referendum on the Lisbon Treaty under any circumstances is something I’m not happy with. On the other hand, saying so publicly makes me subject to the fatuous braying of Tory bloggers like Iain Dale and Dan Hassett.

Let’s be clear: the reason the Lib Dem front bench don’t want a referendum on Lisbon is because they are (correctly) convinced we would lose it. To that extent they are being opportunistic, and no amount of soft soaping from Paul Walter or others will change that.

But is Nick Clegg correct to insist that an in or out referendum is the closest we have to the promised referendum on the Constitutional Treaty? Abso-bloody-lutely.

Because the whole point of the Constitutional Treaty was that it was a “delete all, replace with” process. It was a Year Zero approach to reforming the EU. Lisbon, at the insistence of the Euro-sceptics, is not; it is an amending treaty. That being the case, the EU’s constitution is the body of treaties going all the way back to Rome. If you want a referendum on the EU’s constitution, you have to have a referendum about that.

So if you want to get technical here, it is actually more dishonest and going back on past election promises for the Tories not to support the Lib Dem line of an in or out referendum than for the Lib Dems to not support the Tory line for a Lisbon referendum. Far more dishonest.

I think there has been a democratic deficit regarding the EU for a long, long time now. It has left scars and could harm the UK’s role in the EU in the long term. A referendum on Lisbon might help correct that. But the fundamental problem there is that we have a model of strong government and a weak Parliament. Which party supports the status quo the loudest in this regard? Step forward the Conservative Party.

Nick Clegg may not be exactly showering us in glory here, but at least we don’t have a shyster like David Cameron at the helm. I sleep soundly.

The referendum question

I have to admit to remaining of the view that if the Lib Dems are in favour of a referendum on our continued membership of the EU, which we apparently are, then if that option looks as if it will get nowhere (which it does) we should be supporting the next best option, a referendum on the Reform Treaty. The fact that we’ve consistently failed to enthuse the public about the EU should not be a reason for refusing to face the music.

But if I don’t quite get Clegg’s line, Cameron’s line is even more inconsistent. Why this fig leaf about a referendum? If the Tories are opposed to the Reform Treaty, which when you read between the lines they clearly are, then why not simply say so? Why push for a national referendum, at great public expense, when a simple no vote in Parliament would save us all a lot of time and money?

It is pure oppositionism – opposing the government for the sake of opposition. The purpose of a referendum in this context (since it isn’t citizen-initiated) is to ratify a decision of Parliament; but if Parliament doesn’t make that decision then we don’t require a referendum.

The Tories have always been the opponents of referendums. They now present themselves as champions, but look a little closer. With the Reform Treaty, they are seeking to give the public a vote on an issue that they oppose and calculate the public do to. With their proposals over council tax, they will only permit a public vote if a local authority exceeds a “trigger threshold” (or as it is currently known, a cap) set by the (Tory) government. Referendums have their place as a way to hold the government of the day to account; but when they are used by government to simply make themselves look popular they are a blatant abuse of taxpayer’s money. It is the politics of Napoleon or indeed Nazi Germany.

There are two ways you can arguably use referendums legitimately – to ratify a constitutional change or at the behest of a significant proportion of the public. You might oppose both uses of referendums, but the dangers inherent of allowing governments to pick and choose as it suits them must surely be worse? Even the much maligned Hugo Chavez doesn’t do that.

You might be uncomfortable with the thick authoritarian streak running through Labour, but Cameron’s weakness for despotism is potentially far worse.