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Tom Quinn: Mandates, Manifestos & Coalitions: UK Party Politics after 2010

One of the most important assumptions underlying this view of British politics since 1945 was that governments were given mandates by voters in elections. That followed from the fact that they were directly elected by voters, as there were no post-election coalition negotiations to intervene between voters’ choices and government formation. Mandates followed from voter endorsement of governing parties’ manifestos. The winning party was assumed to have a mandate to implement its manifesto in office.

The hung parliament of 2010 and the subsequent coalition government challenged these assumptions. If no party enjoyed a parliamentary majority, what sense did it make to speak of mandates? What was the role of manifestos if no party possessed a majority to implement one in full? What was the legitimacy of coalition agreements if they have never been put to the electorate? Ultimately, is it necessary to rethink the relationship between voters, parties and governments in the UK political system?

The Traditional Mandate Doctrine

The traditional ‘mandate doctrine’ of British government is, in essence, a very simple one. Two major parties, Labour and the Conservatives, compete with each other to form majority governments to implement their preferred policies. This two-party system was upheld by a first-past-the-post electoral system that made it hard for small parties to win seats. The first-past-the-post (FPTP) electoral system would help to turn electoral pluralities into parliamentary majorities. Elections were opportunities for voters to decide whether Labour or the Conservatives would form the government.

To facilitate this choice, the parties would offer manifestos before the election. These are detailed policy programmes setting out what each party would do in government. Voters could consult these manifestos and vote for the one they most preferred. The party that won a majority of seats in parliament would have a mandate to implement its manifesto. That is, it would have both the right and the obligation to do so. At the following election, voters could decide whether the governing party had been true to its promises: if it had, they might vote it back into power; if it had not, FPTP made it easy to ‘send the rascals packing’ by voting in the other party. Thus, Britain’s party system was based on the direct election of governments by voters, ensuring strong bonds of accountability. Manifestos were an important hinge, linking pre-election promises with democratically mandated post-election governance.

The clarity and simplicity of this theory is a large part of its appeal. In reality, it begs a number of questions. First, no party has won a majority of votes in a UK election in the post-1945 era. At best, the winning party secures a plurality of the vote. In 2005, Labour won the election on only 35% of the national vote, implying that almost two-thirds of voters refused to endorse Labour’s manifesto. Yet Labour still claimed a mandate because it had a parliamentary majority. In 2010, the Conservatives won 36% of the vote but had no parliamentary majority. Was their mandate weaker than Labour’s five years’ earlier? Secondly, manifesto pledges are offered to voters on a take-it-or-leave-it basis: in voting for a party’s manifesto, the party will assume voters have endorsed everything in it, even if it contains things they do not like. Thirdly, most voters do not choose parties on the basis of manifestos. Nowadays, they are much more likely to vote on the basis of party leaders and overall party competence.

The mandate doctrine has exerted a strong influence on thinking about British politics since 1945. The apparent demise of the old two-party system, with the hung parliament in 2010, has finally forced us to confront some of these problems.

Demise of the Two-Party System

From 1945 till the mid-1970s, Britain was an almost classic case of a two-party system, with Labour and the Conservatives winning 90% of the votes and almost all seats. Those days are long gone. Since then, we have seen the rise of the SDP-Liberal Alliance, and then the Liberal Democrats, who now hold 57 seats out 650 in the UK parliament. Nationalist and unionist parties win about 30 seats. We have reached a point at which somewhere between 60 and 80 Westminster seats are likely to continue being won by parties other than Labour and the Conservatives, making it harder for one party to win an outright majority. Hung parliaments will become more likely, though not guaranteed.

A shift to a multi-party system would require a rethinking of the process of government formation in Britain. If hung parliaments became more frequent, coalition or minority governments would become more likely. The notion of a manifesto-derived mandate becomes even more problematical than it already is when no party manages to win a parliamentary majority.

Minority governments are a frequent occurrence in Europe, though they are also common in another FPTP nation, Canada. Minority governments have weaker mandates than majority ones and do not have the parliamentary numbers to implement their entire manifestos. Unless they enjoy supply-and-confidence agreements with an opposition party, minority governments may find themselves at the mercy of those opposition parties waiting for the right moment to bring them down. Compromises may have to be sought if any legislation is to be passed.

The other alternative is a coalition government. Coalitions can occasionally be offered directly to voters before an election and receive voters’ direct endorsement, as with Britain’s ‘coupon election’ of 1918. More usually, coalitions are formed after electors cast their votes. For supporters of the two-party system, post-election deals by parties violate the principle of the direct election of the government by the people, as coalitions are chosen by political elites.

Coalition Agreements and Manifestos

When no party wins a parliamentary majority, then no single party has the means to implement its manifesto pledges. If a coalition is formed between two or more parties, the government’s policies will usually involve a combination of the participating parties’ preferred policies. The practice in Europe, followed in Britain in 2010, is for a coalition agreement to set out the government’s policies. Coalition agreements are negotiated policy deals between parties in government and they’re intended to reduce conflict within the coalition, as well as signalling to voters the direction of policy. They tend to work more smoothly as the ideological distance between the coalition parties narrows. If there are significant differences between the parties, devising a coalition agreement is more difficult and it may contain more gaps, as conflict is postponed by ‘agreements to disagree’ or the establishment of commissions of inquiry.

When government policy is based on a coalition agreement, parties’ individual manifestos become starting points for negotiations between the parties, with pledges tradable or liable to dilution. The UK coalition agreement of 2010 combined elements of both Conservative and Lib Dem manifestos. The Lib Dems identified their priorities as the four key themes of their manifesto – fair taxes, fairness in education, a green economy and political reform, with signature policies such as raising the threshold on income tax, introducing a pupil premium and electoral reform. The Conservatives focused more on their ‘red lines’ in the negotiations – immediate action to reduce the budget deficit, toughness on defence and immigration, and no further transfers of sovereignty to the EU without a referendum. In the end, both parties secured gains on key policy areas, with clear ‘wins’ for each party on particular policies. The Conservatives won out on their red lines; the Lib Dems made progress on their four priorities.

Coalition agreements are programmes for government and so they must be internally coherent, particularly on plans for taxation and spending. That may mean the negotiating parties go beyond specific policies in their manifestos. A manifesto’s tax-and-spend policies may all fit together, but if only some of those pledges make it into the coalition agreement, while others do not, there is no guarantee that they will continue to add up. There would have to be compromise and that might involve watering-down manifesto pledges or even creating wholly new pledges. For example, all spending plans in the coalition agreement were subject to the proviso that deficit-reduction was the government’s fiscal priority.

The pledge to hold a referendum on the Alternative Vote (AV) electoral system provoked some debate because neither the Lib Dems nor the Conservatives had mentioned AV in their manifestos (though, ironically, Labour had!). However, it seemed a reasonable half-way-house between a referendum on proportional representation (the Lib Dem position) and the maintenance of the status quo (the Tory position). This pledge was vital in securing the formation of the coalition.

Perhaps the most contentious feature of the coalition agreement was the section on university tuition fees. The Lib Dems’ manifesto pledged the party to ‘scrap’ tuition fees but the reality of deficit-reduction made that extremely difficult. The coalition agreement declared that the government would await the Browne Report on university funding and that Lib Dem MPs would have the right to abstain – but not vote against – any rise in fees. After receiving the Browne Report, the government brought a bill before parliament to treble the ceiling on fees to £9,000 p.a. Most Lib Dem MPs voted in favour of the increase. Vince Cable, the Lib Dem secretary of state responsible for universities, later denied that this volte face involved a broken mandate:

We didn’t break a promise. We made a commitment in our manifesto, we didn’t win the election. We then entered into a coalition agreement, and it’s the coalition agreement that is binding upon us and which I’m trying to honour.

For supporters of the two-party system, this episode encapsulated the illegitimacy of coalition government: a minister producing a bill that directly contradicted his manifesto, but which he justified as the price of coalition government.

There is no doubt that this controversy badly damaged the Liberal Democrats’ credibility. But we should be careful before seeing it as an inevitable feature of coalition government. There were many other pledges on which compromises were struck that were not nearly as contentious. On this one, the Lib Dems’ original policy was not merely watered-down; it was directly opposed to the one they implemented in government. The pledge to scrap tuition fees was one of the key identity-defining policies of the post-Ashdown Liberal Democrat party. Along with opposition to the Iraq War, it helped define the party’s ideological identity as left-leaning. Reneging on it would inevitably damage the Lib Dems. But it’s hardly characteristic of most policies in the agreement.

Single-party majority governments are just as capable as coalitions of breaking their manifesto pledges. Tony Blair’s Labour government did not hold a referendum on electoral reform despite promising to do so in its 1997 manifesto. New Labour also announced operational independence for the Bank of England to set interest rates just five days after coming to power in 1997. This policy had not been mentioned in Labour’s manifesto on which the party had just fought and won an election, but a chorus of approval from the financial markets ensured that it came to be seen as a masterstroke.

Conclusion

If we accept the assumptions of majoritarian democracy, then the advent of coalition government is an unwelcome development. It blurs lines of accountability between voters and governments, and hands too much power to party elites, especially those in small parties. Government policy becomes based on coalition agreements that have not been directly endorsed by the voters and that undermines their legitimacy. Small parties may find themselves still in government playing a king-maker role even as they lose popularity.

In reality, there were already serious flaws in the traditional mandate doctrine. The concept of an electoral mandate becomes more ambiguous the closer one looks at it. It relies on some heroic assumptions about manifestos and voters, assumptions that are never satisfied in the real world. A party winning 36% fails to secure a mandate in one election, but in the previous election, another party won 35% and its parliamentary majority, created by FPTP, endows its manifesto with the mystical qualities of a mandate. The hung parliament of 2010 shone a light on the weaknesses of the mandate doctrine of British democracy, weaknesses that had previously been concealed by a procession of majority governments. Asking whether coalition agreements enjoy electoral mandates, therefore, is not really the right question. Of course, they don’t; but in all likelihood, neither do manifestos, at least, not en bloc, as a set of pledges. The real questions are: do they represent a logical compromise between the rival positions of the coalition parties; and, do they remain true to the spirit, if not always to the detail, of those parties’ manifestos? If coalition government is deemed necessary, a formal coalition agreement at least offers voters an outline of future government policy. The experience of 2010 is that most coalition pledges will have some origin in one or other party’s manifesto.

In this process, trust is a key ingredient. In the mandate doctrine, voters must trust governing parties to implement their manifesto pledges, but if they don’t, voters must wait till the next election to punish them. The same is true of coalitions. Some pledges may have to be traded, but if parties are seen to renege on major pre-election pledges, they can be punished at the ballot box.

We have probably entered an era in which majority governments, minority governments and coalitions are all genuinely possible. But it does appear that the old two-party system has largely gone and that in turn requires parties, voters and political observers to think beyond the old mandate doctrine about how we might conceive of the democratic legitimacy of government in a new era of the British politics.

 

Dr. Tom Quinn is a Senior Lecturer at Essex University.

(Suggested citation: T. Quinn, ‘Mandates, Manifestos & Coalitions: UK Party Politics after 2010’ U.K. Const. L. Blog (18th July 2014) (available at http://ukconstitutionallaw.org/).

 

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Nick Barber: Does China Enjoy Greater Legitimacy Than Any Western State?

Nick1I was listening to the radio a little while ago, and heard Martin Jacques talking about China.  I listened with renewed concentration.  Jacques was formerly editor of Marxism Today, so he is a man who knows a thing or two about oppressive pseudo-socialist regimes.  Much of what Jacques had to say was insightful, but one of his claims seemed surprising.  Warning his audience he was about to shock them, Jacques asserted that ‘the Chinese state enjoys greater legitimacy than any Western state’.  This is, by any standards, a courageous claim to make.  Jacques advanced three, connected, arguments to support it.  First, he drew our attention to the support expressed by China’s people for their government. In recent surveys it seems that between 80 and 95% of Chinese citizens were either relatively or extremely satisfied with central government.  Secondly, he pointed to the stunning economic success that China has enjoyed over the last thirty years, enjoying a growth rate of about 10% per year.  And this success has not just caused the rich to get richer: Jacques could also have pointed to China’s remarkable success in lifting its people out of poverty.  Allied to these claims, Jacques argued that the Chinese have a different conception of the state to that found in the West: for the Chinese, the state is viewed in terms of the family.  Under this conception of the state, the leadership stands as the head of the family, intimately connected to, and entitled to exercise authority over, the people.

Each of these three claims deserves further reflection.

Jacques’ first point, resting on statistics that quantified the satisfaction of the Chinese people with their state, may demonstrate rather less than he hopes.  In Thinking, Fast and Slow,  the psychologist Daniel Kahneman warns of a trick that our minds tend to play on us.  When faced with a difficult question we are tempted to unknowingly substitute an easier question, and answer that instead.  So, a question about the importance of preserving an animal species or, perhaps, the effectiveness of the market in the NHS, is transmuted into a question about the cuteness of the animal or our how we feel about people making money from healthcare.  Similarly, in presenting this poll as a test of legitimacy, Jacques has shifted from examining the legitimacy of the government to assessing the perception of the legitimacy of the state.  Just because people believe that a government is entitled to rule, this thought alone does not make it so.   Given the control China exercises over its media, and the absence of any real opposition to the government, a general belief in the legitimacy of the government might not be all that surprising.

Indeed, it is even possible that the questions asked by Jacques’ surveys were directed towards something other than the legitimacy of the government.  The surveys appear to have asked after people’s satisfaction with the state, or their assessment of the government’s handling of the economy.  This is a very different thing to the entitlement of the government to rule.  It is easy to imagine a person – perhaps a subject in an imperial territory – admitting that the dominating power was competent, but still challenging its right to rule.  The Romans are still Romans, no matter how well they govern.  On the other hand, a citizen might regard her government as poor, on the verge of incompetence, but still endorse its legitimacy.  Many Labour Party supporters would bitterly criticise the Coalition’s policies, but still recognise that the United Kingdom possesses a legitimate government.

This is not just a semantic quibble.  Political scientists distinguish between two forms of legitimacy: input legitimacy and output legitimacy.  Jacques has focused almost exclusively on output legitimacy in his talk.  Output legitimacy is a function of the competency of the state.  People do, or should, support the state and comply with its commands because doing so will make their community a better place to live.  Input legitimacy, in contrast, is a function of the way decisions are made.  People do, or should, support the state and comply with its commands because of the way the government has been formed and the way the commands have been produced.  Ordinarily, some form of democracy is at the heart of input legitimacy. These two forms of legitimacy are complementary and interconnected.  Perhaps one form of legitimacy is valueless without at least an element of the other.  That the people of China are satisfied with their government, coupled with the strong economic success of that country, shows that China has a plausible case to make in terms of output legitimacy.  The lack of input legitimacy may, though, still throw into question the broader entitlement of the Chinese government to rule.

Jacques’ third point – about the Chinese conception of the state as a family – might be an indirect response to this point.  In the family, the authority parents enjoy over their children, especially young children, rests on their ability to make decisions in the best interests of their child.  Parents’ right to tell their children what to do does not rest on a vote or even on consent.  Perhaps Western preconceptions of legitimacy cannot be applied in the context of China?

The difficulty with this reply is that China does have democratic structures in its Constitution.  These are just not very effective.

In a valuable recent book, Professor Qianfan Zhang explains the structures and operation of the Chinese Constitution.  The Constitution asserts that China should be governed democratically.  It sets out a bottom-up structure of democratic control.  The people elect representatives to the lowest levels of assembly at town and county levels.  These assemblies then elect deputies to sit in Local People’s Congress that, in their turn, elect deputies to sit in the Congress at the next level up.  The process continues all the way to the National People’s Congress, which is the highest representative body.  In reality, though, the Communist Party exercises control over every stage of the process: the bottom-up approach of the Constitution is, as Zhang explains, countered by a top-down system of Party control.  Party committees, controlled from the centre, are able to vet candidates standing for election.  In effect, the appointment of representatives at each level of legislature is subject to the review, or even control, of the Party committee that sits at a governmental level one stage higher than that body.  The 1982 Constitution calls for a system that starts with the citizen and works up to the NPC, with each deputy accountable to the lower body that elected her.  The constitution with a small ‘c’, in contrast, starts with power vested at the top of the Party and then devolves power down to the regions, with each deputy accountable to the higher body that selected her.

Jeff King  has written of constitutions as mission statements, as declarations of the type of polity the state wishes to be.  In China’s case there is a sharp contrast between this declaration and the realities of state power.  China’s government fails to achieve legitimacy even in the terms set by its own Constitution.  This creates a sort of constitutional cognitive dissonance: a discomfort caused by the gap between peoples’ actions and the way they think they ought to behave.  It is a discomfiture that is very evident amongst Chinese public law scholars who struggle to connect the Constitution with the actual rules that structure the state.  It is also evident in the speeches of China’s leaders, whose rhetorical exhortations sometimes seem remote from the state they have fashioned.

Trying to ground a polity largely or entirely in terms of its competency is a dangerous business.  It may prove successful whilst the economy is booming, but economic success never lasts forever.  And the stability it brings can be quite shallow.  After the defenestration of Bo Xilai  tanks were seen on the streets.  If this had occurred in London, people would have thought it was the start of a parade.  In Beijing, people thought it was the beginnings of a coup.  Chinese people’s satisfaction in the conduct of their state may be high, but their faith in their leaders, and their confidence in the stability of their country, may be less buoyant.

Nick Barber is a Fellow of Trinity College, Oxford, and, in 2012, Visiting Professor at Renmin University, Beijing. 

Suggested citation: N. W. Barber, ‘Does China Enjoy Greater Legitimacy Than Any Western State?’ UK Const. L. Blog (28th November 2012) (available at http://ukconstitutionallaw.org).

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Jeff King: Down with Pirates

In this post, I argue against protest voting for fringe parties that mock the conventional party systems.  To some it may look liberal and progressive, but it in fact offers a false and faddish mirage of progressive action that is liable to have precisely the opposite effect.  It  encourages dropping out of a viable party-system at a time that joining in is exactly what’s needed.

There has been a surge of such protest voting in Europe in the last few years. The most notorious example has been the rise of the ‘Pirate Party’ in Germany, a party that originated in Sweden in 2006 .  They have won seats in Nordrhein-Westfalen, Germany’s largest state (Land).  They also won 15 seats on the Berlin city council on 18 September 2011. And it is feared they will enter the Bundestag in the next federal elections, having won 2% of the 5% of votes needed in the September 2009 election.  Similarly, the comedian Beppe Grillo has led a party in Italy known as the Five Star Movement, which has taken a range of offices across the country. In my view, this is all a good joke gone bad.  Politics is no laughing matter.  We need parties that are serious, warts and all.  Why so?

1.         Parties offer collective intelligence and collective action

Modern government is extremely complex.  Adopting policies on taxation, fiscal policy, employment strategies, and managing a legislative programme requires a lot more than gut-feelings about right and wrong.  It requires comprehension of vast quantities of information, and mechanisms for processing it that are delegated and fragmented. It requires organisation.  Indeed this is a key reason for the rise of political parties in the first place.

The Pirate Party proposes to rely on ‘liquid democracy’ where it would consult the preferences of its members (see http://www.piratenpartei.de/mitmachen/arbeitsweise-und-tools/liquid-feedback/ or http://www.pirateparty.org.uk/wiki/Liquid_democracy).  They run software called ‘liquid feedback,’ which generates real-time party member preferences on all policy issues confronted.  This idea is related to a much wider problem of using direct democracy techniques in modern governance.  Shall we take a straw poll on the present need for quantitative easing?  Yes, me neither.

This is why we have representative democracy, and the division of labour required within political parties to have policy formed by people who know how to read the dense bits of the broadsheets. They then coordinate with each other to produce a coherent global political platform that reflects the general political principles of the party.   True, that coordination and discipline may provide cover for inertia and elite access, but it also comprises vast networks of interests and channels for careful negotiation, deliberation, and the discipline required to prioritise and carry forward public policies on crucial issues.

‘Liquid democracy’ threatens to replace that with gut feelings fuelled by a cyberbalkanised media landscape.

2.         Parties offer channels for compromise

Compromise sounds dirty. And since Weber coined the phrase ‘politics is the art of compromise’, politics has a dirty image as well.  Some even accuse politicians of acting ‘politically’!

The criticism is wholly misguided, however.  We compromise in life all the time. We do so in families at the grocery store, on holidays, and at the film shop.  And we also do so in national politics, in most areas of policy.  Compromise is about mutual accommodation. Entire political systems – consociational, those in perpetual coalitions, and many others – are founded upon the harmonious effects of effective compromise (see Bellamy; Braybrooke, below).  Compromises are only ‘dirty’ or ‘rotten’ (see Margalit, below) if they unjustifiably violate someone’s rights, or harm the common good or welfare by comparison with the alternatives.

The Pirates are likely to undermine parties’ capacity to compromise on the right issues, and grandstand as the champions of truth and integrity in the process. It can promote a bunker mentality and gridlock in legislative bargaining.  Some argue that public grandstanding (as opposed to hard bargaining) has destabilised constitution building at critical junctures in some countries’ development (see Jon Elster, “Forces And Mechanisms In The Constitution-Making Process” (1995) 45 Duke L J 364). At any rate, it will be interesting to see how the Pirate Party’s idealism evaporates if ever it would be given power over a public budget. It will then need to take collective decisions and assign someone to speak definitively with one voice for the Party.   When the decisions are big, someone, ultimately, has to hold the conch.

3.         Parties do offer avenues for change and protest

The constant refrain is that political parties do not offer choice.  Well, choice for what?  In Germany, voters can choose – and do – between five parties that span the entire political spectrum, from extreme right, to neo-liberal, to Christian Democrat, to Green, Social Democrat, to the farther left.  It is ironic in fact that these protest parties have proliferated in countries with proportional representation.

Perhaps there are some issues that these parties are not taking seriously?  Well obviously piracy isn’t one of them, but we shouldn’t let the costumes eclipse the fact that the movement includes serious and intelligent people with real policies and new ideas on offer.  The Pirate Party characterises itself as a social-liberal or centrist party, its link to the broader political agenda. But that declared orientation leaves unanswered the obvious question of why it should be seen as different from the Social Democratic Party or Green Party.  The big idea in the Pirate Party is greater Internet freedom. Is that the big single issue worthy of a new political party?  No doubt it is important, but the idea that it should eclipse jobs, monetary stability, equality for women and climate change (the Greens get a hall pass) frankly beggars belief.

Even in the realm of media regulation, it pales in importance next to the impact of concentrated media ownership, and the decline of print media and conventional investigative journalism, fuelled by the rise of blogging, tabloids, and online titillation posing as news.  If Pirates want to take radical action on media policy, try paying for a newspaper subscription.

There may in fact be a more troubling fact afoot.  It would be interesting to ask the Pirate Party how many of its members were in fact members of any other political party in their lifetimes.  (The Pirates’ Wikipedia page reports that two former Bundestag members of other parties have joined the Pirates, one of whom, Jörg Tauss, has since left for non-political reasons).  Have they tried for change from within, or merely recoiled from the business suit?

Party membership has plummeted in Britain, to take one example.  In 1957, one in eleven in Britain were members of a political party, whereas presently the figure has sunk to one in  eighty-eight.  (See generally, ‘The future of parties’ (2005) 59 Parliamentary Affairs 499 (special issue)).  And let’s not even ask about trade union membership.

Is it because these parties themselves no longer offer choice?  Hardly.  Within all the parties, discrete camps jockey for position within the party before, during and after leadership contests.  To say that this is mere ‘politics’  – a battle royale of type-A will-to-power personalities – is to deliver a crude and uninformed picture of politics.  Really, what else are they supposed to do?

And there is choice even in the most mainstream parties. In the UK, the Tories teeter between highly conservative backbenchers who want to scrap the Human Rights Act 1998, withdraw from the EU and the European Convention on Human Rights, and a more pragmatic frontbench that wants to keep the Coalition alive and focus on slashing public spending and reorganising the welfare state.  In the Labour Party, the dispute between Brown and Blairites, and between Ed and David Milliband, was rightly understood as more than personality politics – it was a contest between left and right tendencies in the party.  In neither party is the result a winner-takes-all victory, either.  The claims of the losing side remain present at all times, because if entirely ignored they can fester and destabilise the party in government or opposition, whether by backbench revolt or leadership coup.

So there are avenues for change within political parties.  But one needs to join a party and vote.  Of course, in any big party with a diverse membership, people will disagree about policy. To turn one’s back on the parties is ignore the need to act collectively to create change on the issues that are crucial, and to take other people’s wishes seriously.  That’s serious business, and costumes aren’t welcome.

Jeff King is Senior Lecturer, Faculty of Laws, University College London. (The author extends his appreciation to Caroline Daly for research assistance, and apologies to Steffi Metzler).

Suggested citation: J. King, ‘Down with Pirates’  UK Const. L. Blog (20th October 2012) (available at http://ukconstitutionallaw.org) 

Further Reading

R. Bellamy, Liberalism and Pluralism: Towards a Politics of Compromise (London & New York: Routledge, 2002).

D. Braybrooke, ‘The Possibilities of Compromise’ (1982) 93 Ethics 139-50 (reviewing the Pennock and Chapman volume below).

J.P. Day, ‘Compromise’ (1989) 64 Philosophy 471-85.

A. Margalit, On Compromise and Rotten Compromises (Princeton University Press, 2009).

M. Nachi (ed), ‘Compromise: Exploring Theory and Practice’ (2004) 43(2) Social Science Information (special issue).

 J.R. Pennock & J.W. Chapman,  Nomos XXI: Compromise in Ethics, Law, and Politics (New York: New York University Press, 1979).

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Mike Gordon: Time for a Citizens’ Assembly on Lords Reform?

After the collapse of the coalition government’s House of Lords Reform Bill in August, the UK Parliament’s upper chamber remains resolutely unreformed.  The substance of this most recent attempt to complete the process of reform which commenced with the first Parliament Act in 1911 has been examined in detail by a Joint Committee on the Draft Bill, in recent contributions to this blog, and elsewhere.  For some, although certainly not all, the demise of the Bill is not to be lamented, yet the reasons for this vary substantially.  Almost every element of the Bill has been criticised by someone, somewhere, with it being surprisingly difficult to identify a key overriding deficiency of the proposed reform (although clause 2, which provided that nothing in the Bill would affect the primacy of the House of Commons is perhaps the leading contender for most frequently considered flaw).  The failure of this attempt at reform thus had an air of inevitability about it, fulfilling the prophecies of the many commentators who confidently predicted that the Bill would not attract sufficient support to progress through Parliament.

The primary purpose of this post is not, however, to reconsider the merits and/or demerits of the Reform Bill.  The innovations proposed in the Bill have already been thoroughly evaluated, perhaps with the exception of the sheer length of time the government’s reform plan would have taken to implement, with three new intakes of elected members envisaged over the course of three general elections.  Indeed, a staggered transition to the new arrangements, with reform of the Lords potentially incomplete until 2025, would in my view have engendered unnecessary uncertainty in relation to the legitimacy of the interim chamber(s), and unduly delayed the development of a distinct political culture and working practices appropriate to the reconfigured house.  And, of course, a three stage process would have left future governments with two convenient opportunities to ‘pause’ reform prior to its conclusion, potentially transforming interim arrangements into a more enduring state of affairs as is almost traditional in relation to the Lords.

Nevertheless, the purpose of this post is to suggest a way forward.  While it has been argued that this most recent proposal represented a once in a generation chance to reform the House of Lords, this seems likely to have been rhetoric rather than reality.  Lords reform has already proved to be an issue of remarkable resilience, remaining a matter of debate for over a century.  All three major UK political parties now accept that the Lords is in need of reform, and committed to bringing about change in their 2010 manifestos (distinguishing this issue markedly, for example, from the also failed attempts to reform the voting system for elections to the House of Commons).  Further, the possibility of Lords reform being re-employed as a bargaining chip between potential coalition partners cannot be discounted.  This is especially the case in an era when a pluralist approach to politics, filtered through a first-past-the-post voting system designed to cater for two parties, leaves the prospect of future hung parliaments more rather than less likely.

Yet even if a need for reform of some kind is accepted in principle, have politicians, academics and other interested parties reached the point of fatigue with respect to the detail of reform of the House of Lords?  The volume of material produced might suggest not, yet as the failed proposals, committee reports, and academic commentaries mount up, it becomes ever more difficult to see how progress which is satisfactory to a large enough contingent can be achieved.  Appeals to international experience cannot in and of themselves offer a clear way forward, due to the diversity evident when the composition and powers of elected second chambers around the world are compared.  How might we move, then, from the wealth of solutions that we presently have, to decide definitively how to put the upper house in order?

One way in which this objective might be achieved is to focus on the methodology of constitutional reform, rather than the substance of the reform itself.  In circumstances of disagreement about the desirability of competing visions of a reconfigured House of Lords, the major political parties could together commit to resolve this disagreement by democratic means.  The Joint Committee on the Draft Bill proposed that a shift to an elected House of Lords was of such constitutional significance as to require that a referendum be held to approve the change.  Yet the three main political parties could go further, and commit to convene a citizens’ assembly after the next general election to settle the issue of Lords reform decisively.

Citizens’ assemblies have been used in a number of countries in recent years to assess options for specific constitutional reforms, and make recommendations which can then be put to the general public for further consideration, and potentially, approval at a referendum.  Citizens’ assemblies were established in Canada to consider electoral reform at a provincial level, in British Columbia in 2004 and Ontario in 2006, with referendums subsequently held (two in the case of British Columbia) giving the electorate the opportunity to accept or reject the assemblies’ proposals.  The Canadian assemblies were comprised of citizens selected at random from the electoral register, with adequate representation of geographical regions, men and women, and aboriginal people ensured.  Further, at a national level, a Civic Forum on electoral reform was convened in the Netherlands in 2006, which was also composed of randomly selected citizens.  This Civic Forum was, however, tasked with making recommendations to the Dutch government, rather than directly to the people via a referendum, in contrast with the two Canadian assemblies (on these citizens’ assemblies generally see G. Smith, Democratic Innovations: Designing Institutions for Citizen Participation (CUP: 2009), Ch 3).

Similar methodology is also imminently to be used in Ireland, where a constitutional convention, with two-thirds of the members to be citizens selected at random, is to be established to consider a number of specific constitutional issues (including the reduction of the Presidential term of office to five years, reducing the voting age to 17, and reviewing the Dáil electoral system) and report to the Houses of the Oireachtas.  Interestingly, for present purposes, the convention will not consider reform of the Irish Seanad, with a referendum on abolition of the upper house instead to be held in the latter half of 2013.

Finally, and most boldly, in Iceland citizens were chosen to form a Constitutional Council to draft a new revised constitution for the state in the aftermath of the 2008 financial crisis.  Following a larger National Assembly held in 2010, which involved a significant number of randomly selected citizens reflecting on the core values underpinning the Icelandic constitutional settlement, a smaller group of 25 citizens were tasked with producing a new constitution, relying extensively on the internet to canvass the views of members of the wider public.  These citizens were selected originally via an election to a Constitutional Assembly, distinguishing this example from those considered above, but this was subsequently invalidated by the Icelandic Supreme Court on technical grounds, leading to the formal appointment by the government of the same ‘elected’ individuals to a Constitutional Council (on the process of reform in Iceland generally see T. Gylfason, ‘From Collapse to Constitution: The Case of Iceland’ CESIFO Working Paper No. 3770, June 2012, at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2034241).  Having been considered by Althingi, the Icelandic Parliament, six questions relating to the draft constitution will now be put to a referendum of the people of Iceland in a matter of days, on 20th October 2012.

This necessarily brief sketch is intended simply to demonstrate that citizens’ assemblies (whether comprising of members selected at random or by election) can be, and increasingly have been, employed to consider both specific and general constitutional conundrums.  Such assemblies can be tasked with assessing a variety of alternative solutions, drawing on appropriate expert support and the views of the general public, and ultimately making recommendations for evaluation and approval in the polity at large.  The virtues of such citizen-led deliberation are that it enables a broader range of perspectives to be considered in a public space designed for informed reflection, while enhancing the authority and legitimacy of the proposals developed, which are untainted by any general disillusionment with professional politicians.  As such, and perhaps crucially in relation to the problem of the House of Lords, a citizens’ assembly could be used to bypass deadlock or intransigence among political elites, and provide fresh impetus for constitutional reform.

Of course, the utility of citizens’ assemblies should not at this stage be overstated; they are not necessarily a panacea for all constitutional ills, and while such mechanisms have obvious classical democratic origins, are only gradually re-emerging as a tool which can be used for the implementation of contemporary constitutional reform.  Further, the use of a citizens’ assembly to develop proposals for reform does not guarantee that successful reform will actually be the result, as the Canadian examples clearly demonstrate.  In light of this, the result of the imminent Icelandic referendum will be of great interest to those who find the idea of citizens’ assemblies attractive in principle.

Nonetheless, in relation to Lords reform in the UK, a citizens’ assembly could potentially offer a very useful democratic solution to a problem politicians have been unable to resolve, as well as a normatively appealing way of increasing popular engagement with constitutional issues in its own right.  And if the key objection to the continued existence of the House of Lords is its undemocratic nature, it would be apt for the future of the upper chamber to be settled by a group of UK citizens, potentially subject to the approval of the entire electorate at a referendum.  The time seems right for the UK to experiment with such an approach to constitutional change, and convene a citizens’ assembly to try to solve the problem of Lords reform once and for all.

Dr Mike Gordon is Lecturer in Public Law at the Liverpool Law School, University of Liverpool.

Suggested citation: M. Gordon, ‘Time for a Citizens’ Assembly on Lords Reform?’   UK Const. L. Blog (17th October 2012) (available at http://ukconstitutionallaw.org)

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Filed under Comparative law, Constitutional reform, UK Parliament

Conor Gearty: Liberty and Security

The contemporary discussion about secret trials in the UK echoes earlier controversies about TPIMs, control orders, detention without charge, special advocates, the use of torture – the list seems depressingly endless. Defenders of the rule of law and of human rights appear permanently on the back foot these days, desperate just to stay in the game and having long given up any notion of making the running themselves.  For most of those working in the field (whether as lawyers, activists or scholars), the goal is survival not success.

Why should this be the case?

What has made it so difficult to argue positions that – until really quite recently – were taken largely for granted?

I have been thinking hard about this over the past few months as I have been finalising Liberty and Security, a book to be published later this year (or early next) by Polity Press.  It is about the shape that these words ‘liberty’ and ‘security’ have taken through time and from place to place, how much they have been realised and for how many, and what their standing is today.  In reflecting on these questions I have, I believe, stumbled upon an unattractive global trend, which in the book I call ‘neo-democracy’.

I want to use this short post to explain what I mean by this and – hopefully – start a discussion.

The key to understanding ‘liberty’ and ‘security’-  and therefore to identifying how these words work today – is to see that while their core meaning is not hard to work out, it is the reach of the benefits that each word so powerfully evokes that truly matters.

-       It is the ‘for how many’ issue that mainly concerns me: to whom are liberty and security to be extended?

-       Is it to be to all or just the few?

-       If it is to be to all, is it to be through community, state, non-state, regional or international action?

-        If guaranteed for all, how practical in their reach do these theoretical commitments prove themselves to be?

I think that the central arguments over liberty and security have really always been about this issue of remit rather than of meaning.

My book argues for a particular approach, one that regards the benefits of liberty and security as being rightfully available to all, and thereby capable of reaching (being required to reach) the many rather than the few.  It does not argue the ethic of such a perspective from first principles. Instead it rather takes the moral desirability of universality for granted – as most societies now say they do (whatever about how they truly act). Viewing liberty and security in this all-inclusive way shapes how I approach both the past work these words have done and the present-day reach that (I say) should be consistently accorded to them.

This is not as easy as it looks.

Saying is not doing. A different approach is reflected in the growing presence of walls in divided societies, blatant efforts by the ’haves’  to shut out not only the sight of the ‘have-nots’ but also any opportunity the unlucky many might have to glimpse what a better future would look like.  Israel’s ‘partition fence’ might be the most well-known of these but it is by no means the only one: see http://www.marketplace.org/topics/economy/separation-barriers-world  And when where there are no physical walls, our neo-liberal society has increased embraced metaphorical walls even while it has ostentatiously embraced the virtues of the level playing field.

And important bits of our shared history might be on the side of the neo-democrats.

If we look to the past, neither ‘liberty’ nor ‘security’ has been routinely understood in the broad terms for which I argue. Indeed the primary understanding of liberty and security in the pre-democratic era was always narrowly selective as to who was to benefit from the opportunities afforded the one and the safety delivered by the other.  It was only when the radically egalitarian idea of community self-government took hold on a national scale that liberty and security found themselves open to being wrenched out of their elitist corrals and offered to all.

Democracy gave the universalist reading of liberty and security an entry point and strong support but it could not by itself deliver effortless supremacy for the reach that this approach affords these words.  This was because (as I argue in the book) the democratic victory was itself incomplete, a freedom for all that was invariably not forged afresh but rather tentatively grafted onto a pre-existing society that had been designed for the few.

Old elite readings of liberty and security persisted into the democratic era, jostling for space with their egalitarian interlopers.

This takes me to the central argument in the book, the one that I wanted to flag up in this post.

Around the world we are drifting towards a post-democratic (‘neo-democratic’) model of government.  This is a polity that increasingly wears democratic clothes as a disguise rather than a proud necessity. So we see these old, pre-democratic meanings of the terms returning into popular use, underpinning and explaining readings of liberty and security which remain apparently universal but are now falsely so – words that hide inequality and unfairness by seeming to reach all when in fact in their practical impact they are tailored to the few.

It is not just the so-called emerging democracies that are in reality neo-democratic in this sense: increasingly it is places like the US, the UK and even the UN itself.  Former authoritarian states are reaching up to neo-democracy while the old democracies are stooping down.  They are meeting in the middle, in virtual democracy: this is the world of secret trials, special advocates and so on.

My book argues that we should recover the universal in liberty and security, restoring the egalitarian thrust that drove the turn to democracy that was such an important feature of the evolution of universal freedom.  Such a move has two important allies in its quest to impose its version of the truth, two large-scale movements that have had a beneficial impact across the world.

The first, the rule of law, predates the democratic turn but complements it, maintaining that everyone must be subject to the same laws and (just as critically) that the maker of any given law should not at one and the same time be its authoritative interpreter.

The second, the human rights movement, is of more recent origin (at least insofar as we understand the idea today); the very way that its self-description dedicates itself to all humans reveals the commitment shown by human rights to an egalitarian vision of the world, one in which we all should have a right to the freedoms that were once assumed to be the privilege of the few.   And human rights today also reaches beyond the protection of liberty (narrowly defined) to encompass rich readings of human security, the sort which democratic government once made popular. It is about much more than this or that law, just as it is not about selfish choices masquerading as entitlements – it is about universal freedom.

The neo-democratic turn in contrast wants us to regard democracy, the rule of law and human rights in this sense as outmoded. It wants us to see these ideas  as ‘old hat’, incapable of coping with the challenges of the modern global world, the rise of extremism, climate change, the movement of capital, population growth, refugees, etc.  The proponents of neo-democracy (conscious and unconscious) are happy to see the terms ‘liberty’ and ‘security’ contaminated by misuse, forsaken by those who should love them most as creatures of illusion and hypocrisy.

True liberty and security – that is liberty and security for all and not just the already empowered few – depends on recovering the finest meanings of these terms and then using them as offensive weapons against the onward surge of the over-privileged minority whose ideal world would see liberty and security as their exclusive preserve alone.  They must be resisted. It is time to get back on the front foot.

Conor Gearty is Professor of Human Rights Law, LSE, and a Barrister at Matrix Chambers.

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Filed under Human rights, Judiciary, UK Parliament