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Soapbox debates: The Alternative Vote

In Constitutional Spotlight, Events, Home Affairs, Parliamentary Spotlight, Soapbox Debates on May 4, 2011 at 5:35 pm

Stephan Wan, polarii, David Weber, James Langford, Jack Blankley, Ronald Collinson

With the referendum on 5th May rapidly approaching, The Daily Soapbox has decided to help any remaining floating voters make up their minds about AV (the Alternative Vote), by using it for the first of our written debates, in which 6 of us give our views about AV, along with how we intend to vote in the referendum.

At present, the UK uses the ‘first past the post’ system to elect MPs to the House of Commons. Should the ‘alternative vote’ system be used instead’? Yes or no?

Stephan Wan: YES

This is not a perfect question. There is no doubt that in an ideal world, we would not be seeing just a choice between Alternative Vote (AV) and First Past The Post (FPTP), but also with other voting systems. However, this is not an ideal world, and ultimately we are faced with a simple choice. Is the AV system better than FPTP? The answer is yes. The AV system is both a more legitimate and more effective voting system, that has both fairer process and fairer outcomes.

Firstly, in what sense does AV involve fairer process? A good electoral system must seek to accommodate and realise the preferences of the electorate – the more a system takes into account the wishes of the voters, the better a system it is. AV allows exactly this – the system gives every voter the right to rank the candidates from the one they want the most, to the one they want the least. In comparison, FPTP allows no such choice – it does not reflect what views you have on other candidates, or your preference relations between them. This problem leads to the phenomena of tactical voting; currently, the voter may vote for a candidate other than the one they most support, in order to prevent another candidate from winning who they least support. AV eliminates tactical voting, by allowing these preferences to be shown on the ballot paper. AV is a better system for reflecting voter preferences.

AV graph

Secondly, in what sense does AV involve fairer outcomes? A good electoral system must also seek to result in the election of candidates who have the support of the majority of the electorate. The greater the correlation between the outcome of the election, and the preference of the electorate, the better the electoral system it is. FPTP has a poor record of correlation between outcome and preference – constituencies can have MPs elected on as little as 30% of the vote. AV will in theory work in a far better way – candidates must gain over 50% of the vote to win, either outright through gaining 50% of first preference votes, or through the reallocation of second and subsequent preferences. AV thus ensures that over 50% of the voters will have in some way chosen the winning candidate over all other candidates. This is more legitimate than FPTP – AV is a better system for fairer outcomes.

polarii: NO

Before laying out my case against AV on the issues of practicality – Ronnie and James will have much more to add in other respects – I shall briefly rebut some of Stephen’s points. He argues that tactical voting is a problem; why then, does he advocate a system that encourages it? In FPTP, when a ballot paper is marked, some electors do indeed consider the wider ramifications of voting, rather than just what they want. In AV, voters also consider the wider ramifications, but simply mark a second preference to indicate their ‘tactical’ choice. Instead of removing the problem, it legitimises it.

Furthermore, where preferences are not filled to the bottom of the ballot, there will be a significant number of ballots will be blank, which will be counted as ‘spoiled’ after round 1. So it is not necessarily true that MPs elected under AV will have 50% of votes cast.

AV is used in Australian, Fijian, and Papua New Guinean Parliamentary elections, and Irish and Indian Presidential elections. In Ireland, a major party is always returned to the presidency, and half the elections have been uncontested since 1980; the Congress Party has won every Indian election since its formation. Though both have had fewer hung parliaments than the UK, Australia and Fiji have only two main parties; PNG has only one. The ‘third party’ in Australia, the Greens, took 11% of the vote, yet received 1 seat of 150.In Fiji, only 4 MPs do not hail from the major parties; and unrepresented parties receive over 10% of the vote. However, in the UK, the highest party not to receive representation was UKIP at 3%. These statistics do not suggest that AV is more representative – in fact, it may even be less so.

In Australia, the parties distribute leaflets showing people how they should use all their preferences for the maximum advantage of their preferred party.

Moreover, there is significant disengagement with the system. Turnout in Ireland is 47%. In Australia, 7% prefer a fine to voting; 5% spoil their ballots and 55% admit to following a party-issued card that says how to rank the candidates. This is indicative of serious problem; people are not really convinced in these countries that their vote will matter, or are very unsure about how to use their system. The system does nothing to solve any democratic deficit created by FPTP. In fact, it may even make it worse.

And who actually wants AV? Certainly not David Cameron, who is campaigning for FPTP. Certainly not Nick Clegg, who describes it as ‘miserable’. Maybe Ed Miliband, but he hasn’t said much about it. MPs report a complete absence of pleas from constituents advocating AV. Yet, it seems that if voting trends are the same, the Liberals will gain about 20 more seats – though it is not clear that UKIP will get one, for instance. This is the reason the Liberals are so eager to have it. And the people who run elections don’t want it either; elections will cost more, take longer, and be much harder to check.

In short, no benefit will come of AV. No-one will be satisfied by having it. And likely, fewer people will engage in democracy once we have it. FPTP is clear, popular and simple. There is no choice. FPTP receives not just my preference, but my vote.

David Weber: YES

What separates the Alternative Vote, in a bad way, from First Past the Post? This is the standard of proof those who oppose AV have to meet. It is no use complaining about the cost of the referendum, because it will happen anyway: our MPs have decreed it. So the ‘No’ campaign needs to demonstrate why we should reject AV in favour of the current system. It needs to demonstrate that AV is comparatively worse.

This is what polarii, in the previous speech, failed to do. His argument that AV is unrepresentative (backed up by an impressive array of statistics) is irrelevant. Both systems are unrepresentative, and for the same reason. In both, MPs represent a single constituency, including those who did not vote for them. This is what makes them unrepresentative, and neither can be criticised above the other because of it.

polarii also claims that AV ‘may even be less’ representative. Does he explain how? Does he corroborate it? The ubiquitous statistics are strangely silent on this point! In order to demonstrate this, he has to show that AV has additional problems, which he has failed to do. I invite you to re-read the previous speech if you wish, in case you don’t believe me.

A (hypothetical) AV ballot paper

A highly complex ballot paper

Nor do I think AV would increase disengagement with the system. It’s hard not to be derisive here; I find the idea that voters will be put off by having to number preferences both hilarious and outrageous. The slogan “it’s as easy as 1, 2, 3…” is possibly the only accurate campaign slogan in history. It really is as easy as 1, 2, 3. People are put off from voting for real reasons, not because they have to count in single digits.

So that’s why there’s no reason to reject AV in favour of the current system. Equally, why support AV over it? The answer, when it boils down to it, is actually very, very simple. If MPs do represent an entire constituency (including, as I pointed out earlier, people who did not vote for them) then they should have the support of as many of their constituents as possible.

The current system allows an MP to be elected even if a majority of the electorate vehemently opposes them. This is ludicrous. Representing people is not the same as winning a 100 metre sprint. It should not mean collecting supporters. It should mean seeking the support of as many you seek to represent as possible.

This is why no political party worth its salt uses FPTP. Labour uses AV to elect its leader. The Liberal Democrats also use it. The Conservatives use an almost identical system. It appears that there is consensus among all three parties in favour of AV for them — but not for us. I wonder why this is?

James Langford: NO

Firstly I would like to add my support to Mr Bagg for his excellent contribution into this debate. There are many strands of argument which I could hope to explore in this article but firstly I want to make some refutations to the proposition focusing in particular on comments made by Mr Weber. On a point of technicality Labour or the Conservatives do not fully use AV to elect their leaders – they have both invented their own electoral systems which incorporate procedure similar to that of AV. Moreover – he asks us why FPTP? Simply – it creates strong and accountable governments, gives us coalition at times of national uncertainty, works simply and efficiently during election periods with easily interpretable results, the list goes on…

Returning to my own argument I would firstly like to explore the background to this referendum. This referendum is a waste of money; it’s the voting system that no one really wants – people who want us to change our voting system, such as the Lib Dems, want fairer representation and representation for the smaller parties, but by switching to another majoritarian voting system neither of these aims can be realized. This is the wasted compromise. Those people need PR or STV – and if either of these voting systems had a solid base of national support or could mobilize such a base we would be having a referendum for one of those.

Now I want to bring us back to reality – the democratic idealists are proclaiming that ranking candidates is better but in this voting system safe seats will ignore rankings and tactical ranking will be widespread. Moreover in the marginal constituencies we will still see some MPs elected without 50% of the vote. In a voting system where two of the main principles of that system are not enshrined the average voter will be left confused. I’m not talking about the political nuts like ourselves but the ordinary people of this country, who may only ever engage with politics by voting once every five years. I’d also like to infer that given the increased complexity of this voting system and the lack of understanding behind the procedure, some will become disillusioned and give up voting altogether. In the pursuit of democracy we may damage our democracy.

Jack Blankley: YES

May I first say well done to all the contributions so far, they have been very interesting and this has been a very intelligent debate on a hotly contested issue.

First things first, I am not a supporter of the AV voting system. I believe it is a system which will not fully represent the British public and lead to only a slight improvement on the current system, which I believe is outdated and lacks sufficient representation of the population.

My main argument for supporting the change in the voting system is not so much about the empirical arguments against FPTP, which I believe are not fundamentally changed with the introduction of the AV system, but about wider politics in general. Over the past couple of years, are politicians have been riddled with scandals ranging from expenses claims to affairs, with the tabloid press coming up with imaginative names for our politicians, such as “2jag Prescott” and “Paddy Pantsdown”. A change in the way politics works in this country might help to bring people back into politics, which nowadays is seen as an elitist subject. This is the one thing politicians should be trying to avoid!

Even Mervin King, the governor of the Bank of England, says he’s surprised with the public reaction to the banking meltdown, saying people should be angrier. I believe nowadays people believe there is nothing they can do due to the British political system, and these views of “they’re only in it for themselves”, “greedy” and “out of touch” are comments regularly used in the tabloid press describing all 3 main parties. I know this arguement is hard to understand and even harder to try and write down! But this small change may be a way to reconnect with some lost voters showing that politicians are willing to change a system which the British people think is inherently flawed!

Finally the argument that the referendum is a waste of money is one I disagree with. A referendum is the fairest way to change constitutional practises and to suggest it a waste of money is to suggest that MPs decide how they are elected (which leads to a democratic deficit). The public should be directly involved in deciding on the voting system.

Ronald Collinson: NO

Mr Blankley’s post rounded off what has been a stimulating debate. Several of the supposed arguments in favour of AV have already been dealt with: against Mr Wan, Polarii and Mr Langford noted that it is simply untrue to say that candidates would require the assent of 50% of voters to be elected; against Mr Weber, Mr Langford noted that no major political party in fact uses AV to elect its leaders. Polarii also demonstrated the several respects in which AV may be less representative than FPTP.

It might be added that tactical voting remains possible under AV: the important question is which parties you want to make it into the final round; the order of elimination matters. It is therefore possible to model scenarios in which candidates might in fact be benefited if some of their supporters had given them second rather than first preferences, a clear violation of the principle that expressing second preferences should not harm first preferences. Of course, to exploit this system requires substantial local and national political knowledge – so tactical voting would not be eliminated, but made the preserve of precisely the political obsessives Mr Blankley railed against.

Mr Weber and Mr Blankley both claimed that changing the voting system would revitalise British politics. If that is so, the British people don’t seem to be aware of it: while the 2002 march in favour of the minority pursuit of fox hunting attracted more than 400,000 people, the electoral reform ‘rally’ in May attracted only 1,000; while even the deplorable Facebook group in support of police-killer Raoul Moat attracted over 38,000 members, the Electoral Reform Society has not even achieved 9,000. There is no evidence whatever to suggest that public malaise has anything to do with the electoral system.

Indeed, the aftermath of the expenses scandal was, if anything, a vindication of FPTP. Several MPs in supposedly ‘safe’ seats, like David Heathcoat-Amory and the ludicrous Lembit Opik, were duly unseated. There is substantial academic debate about how AV would change the distribution of safe seats, but there is clear consensus that it would not eliminate such seats. But the evidence of last May is that such seats are not in fact ‘safe’ against the force of local anger.

AV does not, then, reliably make electoral battles more competitive; it restricts tactical voting to the voting to the elite; it violates its own preferential principles; it does not require victors to have the support of a majority of voters. It is, additionally, a much more complex system, lacking the easy transparency of FPTP in which the candidate with the most votes wins.

On this question of ‘the most votes’, Mr Weber ambitiously attempted to draw a distinction between ‘collecting supporters’ and ‘seeking… support’, claiming that under FPTP a candidate can win against an ‘opposing majority.’ But what is the significance of an ‘opposing’ majority if its representative is contingent entirely on the order in which other candidates are eliminated? National politics isn’t like a student union election: there is no option to ‘re-open nominations’. Voters must align themselves by one programme for government or another – simply voting on the basis of ‘not you’, which is surely the ruling logic of the alternative vote, can hardly be considered satisfactory.


This marks the end of our first written debate. If you are interested in participating in future debates we choose to hold, feel free to email David Weber at dingdongalistic (at) gmail (dot) com, or leave a comment underneath this post.


Concerning Devolution, and Democracy

In Constitutional Spotlight, Government Spotlight, Home Affairs, Ideology, Parliamentary Spotlight, Party politics, Regional politics, The Media on January 6, 2011 at 12:49 am

David Weber

Warning: long article approaching

For a while I’ve been wanting to write something equivalent, or at least in response to polarii’s analyses of democracy, not just to outline differences in opinion but also to cover issues which, I feel, were not discussed. The cut and thrust of this article, and possible future ones, will mainly focus (through the prism of a leading issue) of on the general untidiness of democracy; in attempting to define it, assessing its qualities, and outlining solutions. We will start by looking at Devolution.

Devolution has been in the news recently, and for once it isn’t the arguments about a Scottish independence referendum. The new powers proposed by the Calman commission are (partially) being unveiled by the new government, which seeks to deliver a certain amount of tax-raising power to Scotland, presumably not least with the intention of forcing it onto a more equal fiscal footing with England. That Scottish Government ministers are protesting that it will make Scotland worse off in cash terms seems to be evidence in support of this.

I do not have a great deal of sympathy for the Scottish government here, not least because the level of Scottish spending seems unnecessarily disproportionate to England. Obviously, Scotland being in general poorer than England, a degree of higher spending is needed, but for that to extend to free University tuition seems ridiculous, when there is no evidence that English students are particularly disadvantaged by the system which applies to them. Clearly, in this place, if in no other, there is some fat which could be trimmed.

But while the Commission’s terms of reference were the fiscal imbalances in Scottish devolution, I will be looking at democratic imbalances of devolution in general. According to some schools of thought, these are so grave as to override any merits the policy may have, and make abolition of the devolved assemblies the only solution. I am not so sure. I will begin, however, by outlining the case against Devolution.

The first, and most obvious attack, is the “West Lothian Question”. This actually originates from a theoretical question asked by the eponymous MP for West Lothian, Tom Dalyell, in 1977, long before the 1998 Scotland Act came into force:

“For how long will English constituencies and English Honourable members tolerate … at least 119 Honourable Members from Scotland, Wales and Northern Ireland exercising an important, and probably often decisive, effect on English politics while they themselves have no say in the same matters in Scotland, Wales and Northern Ireland?”

The word “decisive” is crucial, as some might hope this question away as an eternally theoretical one, with majorities never slim enough for it to truly make a difference. This is wishful thinking. Labour governments often rely on Scotland for a lot of their support, and indeed the Labour government in 1979 was brought down by the votes of Scottish National Party (SNP) MPs. More recently, in 2006, the vote on — you guessed it — University top-up fees was won based on the support of Scottish MPs; had they abstained, it would likely have been defeated. Democratic Unionist Party MPs voted in favour of raising detention without trial to 42 days in 2008, which passed by a majority of exactly the same number as the 9 DUP MPs, although that particular bill was rejected by the House of Lords.

Not only this, but there is also a more fundamental undemocratic charge against Devolution. It provides some people more representation than others, creating a two-tier or even a multi-tier system, where geography determines strength of political representation. Thus in Scotland, voters elect not only sovereign Westminster MPs, with theoretical responsibility for everything, but near-as-sovereign Holyrood MPs, with very real responsibilities for Health, Education, Justice etc. into the bargain. The voter therefore has two calls for help if something goes wrong, and, in theory, twice as much leverage in their everyday battles. In contrast, a voter in Herefordshire elects a sovereign Westminster MP and a couple of rather dusty councillors, if they even know that a local election is on. Voters in Wales have something of a half-way house between English anonymity and Scottish power. Voters in Northern Ireland — well, I’ll not get into that minefield (until later).

As suggested by the preceding paragraph, devolution is also unequal between regions. The Welsh Assembly does not (yet) have the extensive powers of the Scottish Parliament. London has the Greater London Assembly which, although weaker still, is far more powerful than most local government in England. So in summary, the picture painted by devolution is a very uneven and untidy one, resembling the sort of painting which attaches a lot of importance to the leaves of a tree but somehow fails to convey the basic structure of the trunk with balance and accuracy.

Such is the case against devolution. And before I go into any further, and consider the counter-argument, it is worth considering the fact that nothing argues for the current system quite so well as the inability of its opponents to outline sensible solutions.

One such solution is “English Votes on English Laws”: barring Scottish and Welsh MPs from voting on English legislation. This has a certain long-enduring popularity, and it is often assumed, most often by Conservatives, that this would solve the Question in a blow.

Now, if there is any one phrase I have grown to hate, normally because it is nearly always misapplied, it is “constitutionally illiterate”. Yet I am tempted to apply it here. Devolution, as some opponents evidently fail to grasp ten years after its implementation, is not the same thing as Federalism. The official power of the UK Parliament to overrule the Scottish Parliament is absolute. Parliament is sovereign. It’s political power is, of course, limited severely by devolution. But this is not to say that it will never overrule the devolved assemblies.

And whereas the ability of regional MPs to overrule the will of English MPs is limited, due to their small number, the scope for English MPs to overrule the will of the devolved assemblies, should they wish to, is far greater. Therefore the only way “English Votes on English Laws” would be constitutionally balanced would be to similarly ban English MPs from voting to overrule the devolved assemblies. Which would mean that for each of the four countries, there would be matters where the UK Parliament had no say. Far from strengthening the Union, English Votes on English Laws would go some way towards dividing it permanently.

There are also more practical objections. There is the fact that it probably wouldn’t lead to equality of representation in the first place, because it doesn’t address the “different quality of representation depending on region” criticism of devolution that I outlined earlier. Scottish, Welsh and Northern Irish voters would still have far stronger local democracy than England, although I acknowledge that the situation is almost impossibly complex to assess when it comes to Northern Ireland. But the gravest objection is that it would throw up the possibility of two different majorities being available in the House of Commons, one for English legislation and another for UK legislation.

Such a possibility would not result in, say, a Conservative English legislative agenda put forward by a Labour UK government, because a Labour government would never allow it. The result would be stagnation, or at best, coalition between the two parties on English legislation.

Here is the fundamental problem. People seem to think, against all political observation, that the devolved legislatures are the only important part of devolution. The fact is, however, that without devolved government, devolution is at most a panacea. So quite apart from the constitutional issues, changing the rules governing English legislation would at best only be a half-way step towards the full-blooded localism which has transformed Scottish and Welsh politics.

It is, of course, possible to engineer a more low-key, slimmed down version of English Votes on English Laws. The Democracy Taskforce, set up by David Cameron in 2006 and chaired by Ken Clarke, recommended changing Parliamentary practice to make it convention for regional MPs not to be involved in English legislation during committee and report stages only, without banning them from doing so; thus avoiding the constitutional objections. and limiting the potential for deadlock (as all MPs would vote during first and second reading, thus the whole house would initiate English legislation). In seeking to be so reasonable, the Taskforce created an opposite problem: the solution would be far too limited to address the extent of the problems. Not only this, but the potential for deadlock and odd results would still be very real: a bill could be re-written or sabotaged in committee and report stage, creating a legislative mess and confusion about where accountability lies.

So what other solutions? English devolution holds some attraction and almost certainly far more merit, but would run up against some much stronger political roadblocks. The amount of power it would be necessary to give away even to grant it the same stature as the Welsh devolution would entirely transform the way UK government works, and might alarm even the most ‘radical’ of reforming governments, who rarely give away power with no thought to the consequences, which would be unknown in such a big step. More problematic would be the size of England: with approximately 80% of the people in the whole Union, an English system of government would operate very similarly to the UK one. Such an idea also ignores the political motivations behind devolution to begin with, which I will come to shortly.

So were, or are, the opponents of devolution right? Is it impossible for the system to work democratically, or ‘neatly’? Is it crucial for the future of the Union that the devolved assemblies be abolished? Should we offer the regions (and perhaps Cornwall) an “all-in/all-out” referendum? It is at this point where I realise that I am vaguely puzzled, because no opponent of devolution ever makes the case that before devolution, the UK was a model of democratic perfection. This is because it wasn’t.

In fact, the democratic imbalances inherent in UK government before devolution far eclipse any created by devolution since. In 1979, Scotland went from one extreme of propping the Labour government up to being positively ignored for the following 18 years. Wales was in a similar position during the mid-80s, with Plaid Cymru at one point selling “Tory-free” mugs in celebration of Wales’ utter lack of connection to the UK government. In contrast, in 1997 virtually all of Scottish and Welsh representatives supported the incoming government.

In fact, what opponents of devolution really fail to grasp is that the UK system of government has never been particularly democratic when it comes to a matter of detail. If you wanted completely democratic government, then all elected representatives would govern in coalition. Elections as we know them are about winning. Winning is incompatible with everyone being listened to. In a competition, there are winners and losers, which leaves some people with power and some people without it.

In fact, the only system which comes close to being democratic is the devolved Northern Irish assembly, where the two biggest parties must by law be in coalition, which ironically is as a consequence of their historic inability to co-operate with each other. Winning is only proportionate to a public mandate, and the voice of the loser is granted equal respect as the voice of the winner. The lessons learnt from Northern Ireland’s history should, I hope, actually go some way in helping people to appreciate the importance of taking note of everyone’s voice, no matter whether they conform to a majority, plurality, minority, or just form one person’s opinion.

And this is what devolution to Scotland and Wales also set out to do, to end the ludicrous situation where UK politics regularly left regions polarised and often marginalised. Opponents of devolution rather remind me of people stood with a magnifying glass in front of a work of art, moaning about a hairline crack in the middle of the darkest shade, while utterly failing to appreciate the beauty of the picture as a whole. In fact, in my dedication to creating a fair and exhaustive summary of the flaws of devolution, I have been rather complicit in this myself. No doubt there is still much room for improvement. England lacks the local voice that, in time, it may find it needs. Westminster could do much more to prevent regional MPs from acting undemocratically. And Scottish politics is still alarmingly close to polarisation, with a separatist party viewed as the official alternative to Labour. But Scotland has found itself open to far more political plurality than it ever understood before, with the Liberal Democrats finding a voice in its previous government, with the SNP winning Westminster seats which would previously have been considered solid Labour territory, and with a proportional legislature which has quite failed to self-destruct and has quietly governed on a cross-party basis. Far from being a thorn in its side, devolution could teach the Union quite a few lessons for its future.

Tuition fees round-up, part 2

In Education, Events, Home Affairs, Ideology, Parliamentary Spotlight, Party politics on December 15, 2010 at 1:39 pm

David Weber

Part 2 of 2

These articles were written as one, but split into two parts because of length. Click here for part one.

The next thing I want to focus on is the practicalities of this issue. If one assumes that fiscal austerity made Higher Education cuts inevitable (which I do), how justifiable has the Coalition’s response been? Were they wrong, as Aaron Porter, President of the National Union of Students, contends, to rule out a graduate tax as a viable alternative? How thorough have they been on matters of detail in ensuring fairness?

The first issue to look at is a graduate tax, as this is the basis of most constructive disagreements over the policy, such as the NUS’. It is worth noting as we start that despite quite a lot of strong arguments against it, not all criticism of the graduate tax has been worthy. Quite a number of criticisms have had something of a weasel nature, criticising the worst possible form of the policy without addressing any of the stronger proposals on the table. It would be all very well if these were merely the typical emanations of those who do not know better, but when they crop up in the Browne report itself, it is indicative of a more serious ideological agenda.

Arguments such as: “poorer graduates would have to pay back more”; “it would take time for the money to accumulate”; and even “you could avoid the tax by moving abroad” are simply not credible in the manner they are flung about by most opponents. Arguing that poorer graduates would have to pay back more under a graduate tax is simply childish. It assumes that a government would levy the tax directly on top of the basic rate of income tax, which it would be under no obligation to do. As for the money taking time to accumulate, given that student loans are paid back as a deferred graduate tax, this will already hold true. No new money will come in from the new fees until roughly three years after they come in. It is true that the government loans money upfront to the student by which they pay fees immediately, but the government could just as easily loan money to the University and wait for greater future returns from a graduate tax to pay it off. There is little difference. As for moving abroad, although graduates do now have to make repayment arrangements with the Treasury on moving abroad, this will prove difficult and the Treasury allegedly receives little money from graduates living abroad. If that wasn’t enough, there are also political difficulties. No government of a democratic and liberal nature will want to be seen to use student debt to force graduates to stay within the country, therefore proving that a graduate is not paying their fair share will be very difficult.

That said, I think that there are strengths to the fees system. The first is that it relieves government of the political control it has of University funding, at least to a degree (no pun intended). Any system with a cap on fees is of course going to incur a certain amount of co-funding by government, to prevent public Universities from losing out to private ones (although private Universities currently number only two in Britain). The fees system means that Universities are therefore less often under the danger of political tinkering or sudden funding cuts than they would be if they were funded by taxation.

It can also be argued that government control of the system of funding is more likely to lead to inefficiencies and wasted money than student control. I am somewhat more sceptical of this view than I used to be, however, mainly through my own experience of university and the knowledge that students are, in general, poor consumers. We do not know what the experience of a course will be, in full, until at least a year in, by which point a lot of money is spent. We do not know a great deal about educational methods ourselves, and are not likely to be able to assess university quality in our current positions. Add into the equation the distorting effects of a fee cap, and it is likely that some Universities over-charge by quite a degree for their own courses, confident in the knowledge that the cap makes it unlikely that students will disregard higher quality courses for a cheaper alternative. And just to cement this argument, evidence from America, which has the highest University fees in the world, shows that it is unlikely that an uncapped system would keep prices down.

But there are other flaws with a graduate tax system. There would be no incentive for Universities to invest in the future of their graduates — unless the student paid their taxes directly to their University, which would incur its own problems: high paying degrees would immediately become the market winners, distorting it beyond any level that a market in fees would. Arts and certain humanities courses would only survive by being subsidised by ‘winners’, which would be the death warrant for specialised colleges such as conservatoires and arts colleges.

With a fees system, funding follows the student in a rational way, where higher paid graduates merely pay back their contributions quicker than the lower paid — in the long term, there is little difference between the two. Admittedly, the new system is more skewed, interest means that many will pay back more than what they were loaned, whereas many will have their loans written off partially unpaid. But by taking on all or part of the risk, the government can tame this problem. And passing on a little of the risk to Universities would mean that they had a small incentive to offer high quality courses, without spelling the death warrant for Arts and Humanities.

So is the bill that has just passed in the Commons a perfect solution? By no means. The main criticisms I have, in fact, are a matter of far smaller detail than I have yet discussed, and therefore represent not so much an ideological difference of opinion (unlike many critics) than a practical one. I find myself uneasy about the impact of passing on the higher fees all at once. What private good on the market will suddenly increase in price by 200%? Indeed, if it is fiscally possible, the government would be well advised to accept a proposed amendment in the House of Lords, which would stagger the increases.

I am also concerned by the introduction of interest. Despite the fact that I can see good intentions behind this decision — a growing rate of interest will mean that the higher paid the graduate, the more they pay off — and an upfront penalty for early repayment will prevent the very richest from escaping their fair share. But interest is a clumsy way to ensure fairness, and already the possibility of stricter Muslims refusing the loans has arisen. Though I by no means believe the government should be accommodating of every religious value, this is a clear case where it should accommodate.

The fact that the government is fighting a losing battle in communicating the universalism of this system — the fact that everyone will be able to afford university — is also depressing. Here I am not just critical of the government, which only has so much influence with the public, but also the NUS, the media, and the countless people who believe that their own free University education was the only affordable way to go. No doubt such people would be perfectly happy to pay higher taxes to afford that opportunity to today’s generation of students.

In conclusion, then, there are a number of unpleasant factors behind the recent vote to reform university funding, and increase tuition fees. Not only that, but on some points the policy is wrong, and potentially damaging. Despite this, it remains for the most part a necessary, if unpleasant, reform.

Part one

Tuition fees round-up, part 1

In Education, Events, Home Affairs, Ideology, Parliamentary Spotlight, Party politics on December 15, 2010 at 1:13 pm

David Weber

Part 1 of 2

These articles were written as one, but split into two parts because of length. Click here for part two.

You’ll probably be pleased to know that I intend these articles to be my last on Tuition fees for a while. On the other hand, my record for sticking to pledges made in The Daily Soapbox is worse than the Liberal Democrat’s record of sticking to pledges made at election time. At least they’ve only broken one.

After a somewhat excessive and unfair rant about priorities of students marching in the recent protests, I intend to take a step back and analyse not just the overall picture behind last week’s vote, and whether it was necessary or not, but the cracks and flaws within the art-work as well. I generally think that despite last week’s vote being necessary as a policy in a time of public spending cuts, there are some less than palatable aspects to the whole debacle and one or two individual elements of the policy with which I disagree. When the government will clearly struggle to achieve the fiscal timetable it intends to and is already cutting deeper in some areas than I would like, it was the right decision to pass on some of the costs of universities to future graduates. But it is a pity that it had to approach it from such an unfortunate backdrop, and it has not got the question right on every level.

The first thing to note is the fact that a perverse situation exists where most of the protesters have the moral highground, despite the necessity of reform. There can be no question about this. Despite the fact that Nick Clegg was clearly more sensible about the issue before the election than most of his party, he not only emphasised a manifesto policy he knew not to be sound, but went to the ultimate extreme of signing a separate pledge in public, surrounded by students.

Some background about the Liberal Democrats’ political traditions is necessary to gain a nuanced understanding of this. The Liberal Democrats like to do things en masse. What better demonstrated this than the speculation that Vince Cable might actually abstain over his department’s legislation? This is somewhat ironic for a party wedded to the politics of compromise and coalition, of meeting people half-way — but we have seen ever since the coalition that there is a significant section of the party grassroots which prefers the purity of opposition politics to the practicality of government. And given the amount of time the Liberal Democrats, the Social Democrats and before it the Liberal party have spent in opposition, this is magnified to a far larger degree than in any party of government since 1931.

Nonetheless, the Liberal Democrats’ volte face can only be seen, in a moral light, as betrayal. They have performed the opposite action to that which they promised their voters, many of whom only supported them because of this. This is more than a simple broken promise, it is one of the highest order in a democracy. However, it is yet another example of the fact that the British constitution works far better when it comes to government than when it comes to democracy.

And unfortunately for the beliefs of democrats, this is not an example in democracy’s favour. The pledge the Liberal Democrats signed was naive and unsustainable, but they entered into government at a time when the interests of sustainability and hard-nosed decisions demanded it. They were caught between a rock and a hard place. To abandon their pledge would have been immoral, but no less so than to stand impotently by and engineer an impotent government. Viewed in this light, in choosing to sacrifice the pledge and join government they picked the lesser of two evils.

Does this lessen the betrayal towards many students, and from many students’ point of view? Not at all. The simple fact is that the Liberal Democrats broke their manifesto promise, and as such they deserve to be punished at the next election. Whether or not they should be is another matter. The British system of democratic government does not often serve the interests of justice well, contrary to the regular claims of its supporters. The 2005 election, in an ideal world and an ideal system, would have seen Labour more comprehensively punished for the Iraq War, but other considerations proved weightier on polling day. The 1992 election would, in an ideal world, have seen the support attained by John Major garner comparative rewards, but instead his party suffered a humiliating reduction in the size of its majority. Elections are often determined by a rag-bag cocktail of issues, which are often quite trivial compared to the verdict they deliver.

So much, then, for the Liberal Democrats’ shocking betrayal. History may attach little importance to it when judging their record in government. Such is politics. The next important moral issue which requires attention is the conduct of the Conservative and Labour parties during the election. Though these fine parties made no rash promises to renege on afterwards, in certain ways their conduct was more insidious than that of the Liberal Democrats’ recent betrayal. It is a fact that for an opposition party, the Conservatives kept surprisingly quiet about the Browne review, and its likely recommendation of higher fees.

This isn’t to say the the Conservative party should have come out against higher fees. But it could have built support for them, rather than merely using the Browne review as an excuse not to talk about it (“we will … consider carefully the results of Lord Browne’s review into the future of higher education funding”). In “considering carefully”, it colluded with the Labour party, by accident or design, to limit discussion and decrease choice on the issue at the ballot box. Such a course of action was, if intentional, clearly self-interested. Labour’s actions fare worse. Despite setting up a review clearly loaded, as shown by polarii’s recent article, to recommend higher fees, it refused to engage in discussion of the issue — then miraculously came out against the Browne review after the election.

So like MPs expenses, in many ways this is a ‘plague on all your houses’ issue, in spite of the visibility of the Liberal Democrats’ betrayal.

Part Two


In Constitutional Spotlight, Events, Home Affairs, Parliamentary Spotlight, Party politics, The Media on September 27, 2010 at 4:18 pm

David Weber

I do not have particularly high hopes for the hopefully forthcoming referendum on the Alternative Vote. My reasons are mainly that it tends to be the most intelligent, careful reforms which garner the least respect from those who are interested in them. Therefore, I would not be at all surprised if many of those who advocate electoral reform simply do not turn out, or actually vote “no” next May. To the passionate advocate of PR, all that matters is the national outcome. On the local level, the strength of personal representation, and the quality of debate during an election, are all unimportant.

However, one thing I do respect about the objections of more radical constitutional reformers is that they at least have accuracy in mind. Despite a misplaced focus, their objections are entirely correct. The Alternative Vote is not more proportional than First Past the Post. This is because it does nothing to reform the basis of the system, which is local, nor the form of representation, which is direct. Instead, it merely makes the form of these elections fairer.

So though it might be a game-changer during individual elections, it will do little to change the party system. The two parties would likely remain entrenched in United Kingdom politics. The Liberal Democrats would likely become more listened to, but only marginally more representated. Independents would be able to stand in good conscience of contributing to the debate without splitting the vote — but that is all. Moreover, extreme parties like the BNP would become more frozen out than ever from hope of winning seats, as the system of election would rely on finding broader support among the electorate.

So I respect the objections of many to AV, despite supporting it firmly myself and believing it would do a lot to improve the fairness of political discourse. It is a ‘small’ reform, the electoral equivalent of the first stage of Lords reform, designed to make a flawed system stronger without overhauling its composition. So no wonder why it is so unlikely to incur passionate support in the electorate. I doubt we would have flocked to the polls in support of the constitutional reforms of the past 13 years, for they have nearly all been the minor, careful reforms that are the proud tradition of the British Constitution.

However, if I am resigned to expecting an unenthusiastic debate at best, I would at least have hoped for an honest one. Not so, it seems. For the more verocious opponents of any change whatsoever, every argument is fair game, no matter how mis-informed or, indeed, deliberately misleading.

Or so a recent article by Matthew Elliott, chairman of the “No2AV” campaign, would suggest. In it, Elliott impressively manages not only to lower the tone of the whole political debate, but also apply the wrong arguments at every corner. Not since Simon Heffer accused Gordon Brown of trying to introduce PR have I seen someone so wilfully misunderstand one of the most simple reforms to the electoral system there is. Elliott manages to use Australia to back up his argument that AV will “lead to permanent hung parliaments”, apparently having missed the fact that Australia had only 6 Hung Parliaments in the previous century — despite having shorter parliamentary terms than the UK, at 3 years.

Elliott also claims that AV would not address what Nick Clegg calls the “scandal” of safe seats. Here is is in less uninformed company, as this is often an argument made hastily by some Lib Dems. The reality is that it is utterly counter-intuitive to suggest that AV would do nothing about safe seats, because many are won by under 50%, or barely over that mark. Bringing the threshhold of election to 50% would have the effect of suddenly making many of these MPs more wary, as they realised that a sudden swing of unpopularity in their direction and the votes of their opponents could easily stack up against them.

This brings me to an earlier point he makes, that the system violates OMOV (One man, One Vote). This is one of the most baffling criticisms of AV that I’ve come across, as it appears to confuse the act of voting with the process of elections. Under AV, anyone can fill out a full preference vote. So it is clearly not the case, as Elliott seems to think it is, that only the supporters of minor parties get to “vote multiple times”. Yet if this is not what Elliott refers to, then he can only mean the process of election, i.e. which votes “count” towards electing the winner.

If Elliott refers to the process of election, then by his own logic First Past the Post would be a far worse offender. Under AV, 50% of the votes might end up “counting” to the election result. But under First Past the Post, there is no lower limit to the amount of votes that have to “count”. So in other words, First Past the Post would be a massive failure of OMOV. The winner does not even have to gain a majority of votes, merely a plurality — one more than his nearest rival. AV is not particularly representative in terms of “which votes count”, but FPTP is dreadful. Elliott might as well claim that the 2005 Conservative leadership election violated OMOV, because some people voted for Ken Clarke in the first round and David Cameron in the last, while some people voted both times for Cameron.

Luckily, I don’t think we need accept Elliott’s definition of OMOV, because no system has yet been devised by man to allow every single vote to count toward an election result, even that holy grail of voting systems, STV. To my mind, and to the minds of most, I think, OMOV merely means giving everyone the same voting opportunities — i.e. not giving a landowner two votes more than a tenant. How they use that vote and to what advantage is entirely up to them.

Elliott also characterises the current electoral system as “long-standing”. I suppose this depends on your definition, but to most historians, I suspect it would be anything but. First Past the Post was not been used to elect every single MP until after the second world war. Prior to that, there were multi-member constituencies in places, and at one time there were many. In fact, the gradual change of our electoral system from the time of rotten Boroughs to today is a great argument against the idea that the British Constitution has been successful and unchanging. All too often, it has been neither.

Nor is it the case to claim that electoral reform, or “political tinkering” was unheard of in ages gone past. One of the lesser-known measures of the 1867 reform act was Limited Voting, where multi-member constituencies would elect 3 members on 2 votes per person, thus providing for minority representation — in some ways, a simpler version of what STV attempts to do. Other ideas in the past have included STV elections for the cities and towns, and AV for the counties. And a bill to introduce AV for elections in the UK was only thwarted by the House of Lords back in 1931.

As for First Past the Post producing “clear and uncomplicated election results”, it’s surprisingly difficult to work out what those election results mean sometimes. I’m not referring, unlike Elliott, to hung Parliaments (though it is worth noting the two results of 1951 and 1974, when governments were ousted despite winning the support of more people than their challengers). But I’m referring to what election results are precisely taken to mean.

1992 is a brilliant example. When formulating their review into the electoral system, the Jenkins commission effectively made one of their criteria that the system they recommended would have delivered a hung parliament in 1992, but not in 1983 or 1987. Quite why they did this is unclear, for John Major’s conservative party suffered a mere -0.3% swing at the polls in 1992, and actually won more actual votes than they had in the previous election, 1992 being something of a triumph for turnout. The reason Major’s majority was reduced to a mere 21 is almost entirely down to the workings of First Past the Post — yet the Jenkins Commission appeared to not even consider this, because of the widespread (and false) idea that the Conservative party lost much of their support at the polls in 1992.

Or what about 1983? The triumph for the Thatcherite government, returned with a majority of 144? Not necessarily. The proportion of the voting electorate they secured had actually fallen, from 43.9% to 42.4%. The old adage is true — you can prove anything with statistics, and what FPTP actually does is to add to the confusion of election results. (It is, however, true that Labour were roundly punished at that election, losing over 9% of the voting electorate. This, more than anything, was the reason for the sweeping victory the Tories’ secured).

As for accountable government (or accountable opposition, as we have just seen), AV might not change much on the national scale, but it cannot be denied that it is a way of making individual MPs more accountable. What the Conservatives have tentatively suggested with one or two open primaries is in some ways very similar. And the way the Conservative party elects its leader is also very similar, being a series of run-off elections. AV simulates run-off elections, at a fraction of the cost. Indeed, it is ironic that, given their support for FPTP, the Conservative party is strangely lacking in exercising that system in its internal party democracy. I suppose this is no less dubious than Labour’s stance — the only party to propose the system in their manifesto, who now oppose a bill to introduce it after they were defeated on an amendment.

So to sum up, I think I would prefer it if proponents of PR were allowed to chair the No2AV campaign. Then at least we would have some real understanding of electoral reform. It would also make life easier for the Conservatives to get on with what they’ve always done at their best — outflank the opposition. There are few legitimate reasons for the Conservatives to oppose AV. It does all of what they regard as good and right in First Past the Post, better, with a few additional advantages of its own. The only criticisms that are really applicable come from quite different directions.

So now our new masters have managed the *impossible*. Now it is time for them to *manage* the impossible.

In Constitutional Spotlight, Events, Home Affairs, Parliamentary Spotlight on May 15, 2010 at 4:06 pm

David Weber

…Not the most pithy of titles, perhaps, but it sums up my feelings. I never did seriously believe that the outcome of the election would be a coalition between the Liberals and the Conservatives, although I did view it as a far more likely scenario than a coalition between the Liberals and Labour. I grin did momentarily play on my face today, though, as I remembered the incredulous reaction I suffered when, two years ago, at the height of the ten pence tax row, I declared that a Liberal-Conservative coalition was now a more realistic probability than a Liberal-Labour one. Not once did I seriously believe it, though.

The fact that it has become a reality can be mainly attributed to something I never expected; Cameron’s commitment to finding a majority. My expectation was that Cameron, in line with the tone of the Conservative campaign, would be bold and attempt to go it alone, winning votes on a case-by-case basis as the SNP in Scotland have done, perhaps with a supply and confidence deal with the Lib Dems. The Tory campaign seemed to back this assumption up; to the end combative and as sure of the Liberals’ wrongness as it was its own rightness, it made ideas of a coalition seem far away.

In retrospect, a large part of this was perhaps due to fright at the Lib Dems’ performance at the leaders’ debates, and worries that an election in which they came second might lead to a Labour-Liberal majority, or even a Labour plurality. But the attitude of the Conservatives in opposition was troublesome for considered, collective decision-making even before this; the party has behaved infamously in the practice of making up policy “on the hop”. Though the Lib Dems are not innocent of this, it at least tended to provoke reactions from their grassroots, whereas idiotic commitments from the Conservatives such as cutting the number of MPs and a 4 year mandatory sentence for knife criminals went largely unnoticed or uncared about. Only the imposition of female candidates sparked anger from the grassroots, which speaks of perhaps skewed priorities.

So the commitment with which Cameron pushed for this coalition speaks volumes to his credit, particularly after a 4 year opposition strategy undermined his reputation with those like me who feel policy and government should be matters of caution as well as boldness. The Conservatives’ continual press releases with instant policy recommendation, as impotent as they were frequent, was a matter of serious irritation to me, as was the Osborne “pulling a tax rabbit out of the hat” act at Conservative party conferences, even if I realised that this was more politically necessary. Cameron’s first bold act of government, using the coalition as an excuse to ditch many, if not most of the politically expedient but unwise policies out of his manifesto, is a work of political genius, far more meaningful and improving than Tony Blair’s “clause four moment” ever was.

The second person to congratulate is Clegg. Equidistance has paid off volumes, as the approach now allows him to sell a Con-Lib deal as legitimate to his party and indeed his voters, where it would have seemed unthinkable a few years ago. The Liberal Democrats are no longer seen as an alternative left fringe party, but as a very serious party of political reality. Clegg has also played the hung parliament well, managing to secure a truly joint policy agreement, even if he did edge dangerously close to the line of using Brown’s predicament unkindly towards the end. Still, he can hardly be blamed for attempting to maximise his party’s advantage in negotiations.

The joint policy deal, which I have skimmed, effectively removes the least important and most unwise parts of each party’s manifestos. Gone is the IHT cut, in return for the mansion tax plan biting the dust. The Liberal Democrat’s income tax proposals are being gradually implemented, presumably in return for their agreement not to kick up a stink over a married tax allowance. An immigration cap will be adopted, an acceptable (and likely self-defeating) price to pay for the ending of the shocking detention of children for immigration purposes.

This is real progressive politics. Not the constant glancing over the shoulder at the tabloids when even the smallest redistributive measure is considered, but the hard-nosed negotiation for full-blooded reforms in specific areas. And the beauty of coalition is that, in the next election, both side can spread the blame around and allocate each others a more generous share in the credit than they really deserve. Risk is pooled.

Of course, it could always go badly wrong. And this is where my header comes in. In coming to this agreement, strong though it is initially, the Liberal Democrats and the Tories have only managed to do what was thought impossible. But now they have to manage, continually, to do the even harder business of hammering out the details in government. The process of continual negotiation, as it were, will be difficult, despite the comprehensive policy agreement. The latter is, in effect, political theory, whereas the former is political reality. And will prove far more difficult.

As such, their early efforts to make this coalition stable should be applauded, not sneered at. And the now controversial idea of a 55% threshold for dissolution should be counted as such. Contrary to what some people believe, it is not to protect the Liberal Democrats from the Tories! The Tories could not muster dissolution alone – they have 47% of the seats, and would need backing from Labour, Nationalist or Liberal Democrat MPs. The whole point is to protect the Tories from the Liberal Democrats, who with only a 50%+1 threshold for dissolution could easily break away and form a pact with the opposition at a time which looked politically expedient. Though they might be punished at the ballot box for doing such a thing, this is no guarantee.

What protects the Liberal Democrats is the historic transfer of the dissolution power, in the first place, away from the Prime Minister. And this is very important. It is a far bigger transfer of power back to Parliament than the super-threshold is a constraint of its powers. And as the architects of this policy point out, dissolution is not the same as confidence. The House of Commons could theoretically vote for a change of government mid-term, but not dissolution.

There is one danger in the legislation – that the House of Commons would be able to do the unthinkable, IE force a Prime Ministerial resignation but to refuse to put forward an alternative candidate. In this case, there could theoretically – very theoretically – be the risk of a government shutdown, similar to that of Bill Clinton’s administration in 1995. This must be avoided, and could easily be done so by the insertion of a safety clause to provide for emergency elections in the event of such a situation developing. The emergency elections could only hold valid for the remainder of the previous parliamentary term, thus creating an incentive against any party seeking to engineer one.

The only issue with 55% is that it is too low. It means that the Coalition as a whole can effectively vote for an early election if it believes it will do well. In reality, to have proper fixed-term parliaments, the threshold needs to be higher, as it is in the Scottish Parliament. So far from this being undemocratic, it actually safeguards the right of the House of Parliament to be superior to government – the representative body standing tall over the practical, but unrepresentative one.

Constitutional Spotlight:

In Constitutional Spotlight, Judicial Spotlight, Parliamentary Spotlight on September 23, 2009 at 12:20 am

To what extent will the creation of a new British Supreme Court cause problems in the relationship between Parliament and the judiciary?

This essay will argue that it impossible to make a firm judgement over to what extent the creation of the new British Supreme Court will cause “problems” in the relationship between Parliament and the judiciary. Whether the judiciary will become more activist (causing tensions with Parliament) depends on a host of other factors, including the kind of legislation enacted by future Parliaments and the composition of the Court. It is important to note that the Supreme Court has no new powers, suggesting that the judges may not have the ability to become more activist; however this essay’s conclusion will be that a much more important factor in increasing tension between Parliament and the judiciary is the Human Rights Act, since judges can reinterpret legislation to ensure consistency. The introduction of the Supreme Court may hasten this process, since there is some evidence that the Law Lords have been more conservative than lower courts in their challenging of the executive and legislature, perhaps due to their involvement in the legislative branch of government. Finally this essay will question whether it is appropriate to regard tension between the judiciary and Parliament as problematic, arguing that robust judicial review is profoundly democratic (on the right, “partnership” conception of democracy) and so most welcome.

To start, what “problems” could conceivably be caused by the creation of a new British Supreme Court? It seems that the fear is the erosion of Parliamentary sovereignty, which Parliament’s website calls “the most important part of the UK constitution”. Parliamentary sovereignty means that Parliament is “the supreme legal authority in the UK, which can create or end any law”. “The courts cannot overrule its legislation.” The functions of Parliament and the judiciary are strictly separated; Francis Bacon in one of his essays likened judges who drew authority from outside the text of the law as being like the “Church of Rome”, who illegitimately did not draw authority from the Bible alone. “”Judges ought to remember that their office is jus dicere, and not jus dare: to interpret law, and not to make law or give law.” (This narrow view of the proper role of the judiciary in a democracy will be challenged later on in this essay.) Thus Lord Neuberger fears that the new Supreme Court “may start to assert itself” – start making law, not just interpreting it. The justices may “arrogate to themselves greater power”, as the American Supreme Court did in the 1803 case “Marbury vs Madison” when they for the first time declared a part of a statute (the Judiciary Act of 1798) unconstitutional. That the Supreme Court can in effect make law was demonstrated in the 1973 ruling Roe v Wade, which established the right to have an abortion up to the point of viability. Though this judgment was not technically a new law, but rather an interpretation of the Fourteenth Amendment, it is in some ways more binding than a law, since it can only be struck down by another Supreme Court ruling, and the composition of the Supreme Court (since justices are appointed for life) is much slower to change than that of Congress.

Why does Neuberger think the Supreme Court would threaten the traditional territory of Parliament? He mentions the “law of unintended consequences”: the judges’ new titles, statuses and building may inflate their sense of importance and cause them to overstep their authority, creating “a real risk of confrontation between the judiciary and the executive”. Lord Turnball and Lord Falconer agree, saying that the creation of the Supreme Court will “enhance the confidence of the judiciary”. However, perhaps they are overstating their case. Their argument seems to be based on little more than speculation about the psychological effects of a new setting and title. Much depends on the composition of the Supreme Court, which will ultimately determine its propensity to cause tension in its relationship with Parliament. Lord Phillips, the Supreme Court’s first president, seems to take a relatively conservative view of the role of the judiciary, saying of the prospect of judicial activism: “I don’t think it’s likely”. Moreover, there will be little or no scope for judicial activism in the sphere of criminal law, since it is envisaged that the Supreme Court will hear criminal appeals very rarely, if at all, due to the justices’ lack of criminal expertise. The British Supreme Court has also been given no new powers; like the Law Lords, and unlike the American Supreme Court, they cannot invalidate statutes created by Parliament.

However, just because the new British Supreme Court has no additional powers does not mean that it does not have the capacity to become increasingly activist; such powers were given to the judiciary by the 1998 Human Rights Act, which is a much more significant reason why there may be future problems in the relationship between Parliament and the judiciary. The Human Rights Act gives the judiciary the power to issue a “declaration of incompatibility” between the Act and statute passed by Parliament; however this does not invalidate the statute. Parliamentary sovereignty is upheld because it then is up to Parliament to amend the legislation; the declaration has no legal force. For example, on 14 Oct 2005 in R (on the application of Sylviane Pierrette Morris) v Westminster City Council & First Secretary of State, the Court of Appeal ruled that section 185(4) of the Housing Act was incompatible with Article 18 of the Human Rights Act. In August of the following year, nothing had been done to remedy the incompatibility. Thus, the opportunities for judicial activism afforded by declarations of incompatibility are minimal. However, their power to reinterpret legislation so that it is compatible with the HRA is extremely significant. In 2004 the Law Lords ruled that the phrase “surviving spouse” in the Rent Act had to be interpreted as including the survivor of a gay couple, giving a same-sex partner “the same rights to take over a protected tenancy as the survivor of a married or cohabiting couple”: Tom Zwart says that this ruling was “an amendment [to the law] in anything but name”. The tension in the relationship between Parliament and the judiciary due to the HRA was also evident in 2001 when the courts interpreted the Youth Justice and Criminal Evidence Act 1999 as allowing rape victims to be cross-examined over their sexual history where this was necessary for a fair trial, despite Parliament having included a “rape shield” provision to prevent such lines of questioning. In Daly, 2001, before plans for the new British Supreme Court had even been announced, the Law Lords established the principle that it was for the courts to determine whether “relevant weight” had been accorded to “interests and considerations”: a principle of proportionality, giving future courts much greater scope for review. “Judicial review had therefore moved on. At least where rights are affected, it is now concerned with substance [traditionally the domain of Parliament] as well as legality and procedure” (Diana Woodhouse in “Law and Politics”). Thus there is no need for or likelihood of the Supreme Court Justices “arrogating to themselves greater powers”, as Neuberger fears: they have, post-HRA, what is in effect significant law-creating powers at their disposal.

Still, there may be some substance behind Neuberger’s fears. The Law Lords, to date, have not been as bold as they could have been in challenging the executive and legislature. When the case of Shafiq ur Rehman came before the Law Lords in 2001, the Special Immigration Appeals Commission had ruled that the Home Office was not justified in deporting him. (His alleged involvement in a Kashmari terrorist organisation was thought to be a threat to national security.) However, the Law Lords overturned this judgement, saying that “the judicial arm of government [needs] to respect the decisions of ministers of the Crown on the question of whether terrorist activities in a foreign country constitutes a threat to national security”. The Law Lords, in what was described by many commentators as a disappointingly conservative ruling, also overturned the declaration of incompatibility made by the High Court in Alconbury. This case was brought by a number of developers who alleged that, since the Secretary of State for the Environment, Transport and the Regions has responsibility for both planning policy and individual planning decisions, they were denied the right to a fair and impartial hearing provided for them by Article 6 of the HRA. Cases such as these lead Diana Woodhouse to conclude that “the High Court is more liberal in its protection of rights than appeal courts”, because of the Law Lords’ “concern not to disrupt government policy”. If this is correct, and Rehman and Alconbury certainly indicate that it is, the creation of the new British Supreme Court could result to a significant extent in more judicial challenging of the legislature and executive – because it is now a separate body, like the High Court – and therefore more tension in the relationship between Parliament and judiciary.

However, this essay’s topic is whether the creation of the British Supreme court will cause problems in the relationship between Parliament and judiciary. Thus the question is raised: are tensions in this relationship problematic? It seems that increased judicial review concerns people for two main reasons: firstly, that it represents a break with tradition, and secondly, that it is undemocratic. The first kind of fear is evident in Neuberger’s assertation that “you muck around with the British constitution at your peril”. Any possibility of the judiciary being more assertive in challenging Parliament should be regarded with caution and suspicion, because robust judicial review is “foreign to the British system”. However, this argument fails to persuade on two counts. Firstly, judicial involvement in what is effectively law- and policy-making has been a feature of the British political system since the passing of the Human Rights Act in 1998, as has already been demonstrated. A further example of the transfer of power from the government to the judiciary is that, following a ruling from the Strasbourg Court in 2000, the responsibility for setting the minimum tariff for murder committed by juveniles passed from the Home Secretary to the Lord Chief Justice. Secondly, even if judicial review were “foreign”, that does not constitute a decisive objection against it. Unfortunately, a thorough examination of (so called small-c) conservatism is beyond the scope of this essay, though a few doubts will be expressed. Could it not be a form of the well-documented phenomenon of “status quo bias”, where people (irrationally?) are disproportionately in favour of structures and practices that actually exist? Does this bias towards the already existing not warp our politics by ensuring that new, so-called “radical” ideas are not given proper consideration? Take drug prohibition. Many commentators have argued that the best way of dealing with drug use and addiction is not to impose criminal sanctions on users, but rather to decriminalise or even legalise drugs. A 2002 comment piece in the Guardian claimed that the war on drugs could never be won, and it was “time for a new approach”. The same author wrote a year later that ““Hounding hundreds of thousands – indeed millions – of young people with harsh criminal penalties is no longer practicable or desirable.” This view is supported by the experience of Portugal; since decriminalisation, illegal teenage drug use has fallen, the number of deaths from heroin has been cut by more than half, and the number of addicts registering for treatment programmes has more than doubled. Yet the alternatives to prohibition are barely even mentioned by Labour or Conservative politicians, who seem to repeat the same message over and over again, like a broken record: “we remain determined to crack down on drug-related crime and the harm it causes to communities….robust action is ensuring drugs are being taken off the streets” (Home Office Minister Alan Campbell). The author of the aforementioned articles was none other than David Cameron. His rhetoric seems to have been toned down greatly since he became Tory leader; does this reflect an awareness of the “status quo bias” of the electorate? This essay is not necessarily arguing that drugs should be legalised, but just that the merits of different policy choices should be fairly considered, free from “status quo bias”. What is true for drug legislation is no less true for the role of the judiciary; assertations like “you muck around with the British constitution at your peril” do not substitute for proper argument about the judiciary’s role.

The second ground for opposing an increase in the scope of judicial review is that it is (allegedly) undemocratic. Dworkin says that “almost everyone assumes that democracy means equal voting power among competent adults, that majority rule is therefore the nerve of democracy, and that any failure in majority rule is undemocratic”. If this equation of democracy and majority-rule is correct, then it is certainly undemocratic for the unelected, unrepresentative judiciary to have any policy and law- making role, the responsibility of our elected representatives in Parliament. Moreover, the new head of the Supreme Court, Lord Phillips, professes to be unmoved by public opinion. However, Dworkin seems to be correct in rejecting this “majoritarian” conception of democracy: that “a state is democratic…to the degree to which government…pursues the policy that is actually favoured by the largest number of citizens at the time”. This view does not allow that there is anything undemocratic about 51% of citizens ruling as a permanent majority, ignoring the wishes of the other 49% – the “tyranny of the majority”. Instead, he adopts a “partnership” conception of democracy: that “institutions are democratic to the degree that they allow fellow citizens to govern themselves collectively through a partnership in which each is an active and equal partner”. Since ordinary citizens have no say in judicial decisions, it may seem far-fetched to suggest that a strengthened judiciary facilitates self-rule. However, the judiciary may be essential to check the tendency of Parliament to restrict the liberties necessary for citizens to be “active and equal partner[s]” in governance. Diana Woodhouse explains why: “The courts are concerned with the protection of individuals and their rights. Governments are mainly concerned with broader issues of national interest, economics, politics and , of course, their popularity at the ballot box.” An instance of the judiciary’s protection of human rights against the wishes of an overbearing government is the Law Lords’ June 2009 decision that those foreign and British terror suspects subject to control orders must be allowed to know the evidence against them. Therefore robust judicial review, if it ensures (through its protection of basic rights) that citizens can participate in governance as free and equal citizens, is profoundly democratic.

Thus it is an error to construe tensions between the judiciary and Parliament as “problems”, as this essay’s title seems to do. Their different priorities mean, as Diana Woodhouse argues, that “the concerns of ministers and judges will, at times, collide… there is no harm in this. Indeed, there should be a tension between these two arms of government.” It remains to be seen whether the creation of the new British Supreme Court will increase such tension; for who knows how authoritarian the next Parliament will be, filled as it is likely to be with Tories. The Tories have also indicated that they will attempt to limit the scope of judicial review by abolishing the Human Rights Act and replacing it with a British Bill of Rights, which will come with “guidance notes” to tell judges how it should be interpreted. Therefore the extent to which the creation of the new Supreme Court will cause tension cannot be accurately ascertained, dependent as it is on so many other factors.

Cameron must not be afraid to fight Brown and his government

In Home Affairs, Parliamentary Spotlight, The Media on September 19, 2009 at 9:50 pm


Daniel Hannan’s loose tongue has provided somewhat of a dilemma for David Cameron, but the Tory leader must challenge Labour’s incompetence over the NHS and other vital issues.

SUGGESTING health care reform and attacking the poor decisions that Labour have made does not make you a right wing militant, joining a crusade against a socialist ideal.  As many have rightly claimed, the NHS is an institution that Britons should be proud of. It is a fundamental part of our society, one that we must cherish and protect. However, it has major faults. The problem is, the mere suggestion of reform from the Conservatives leaves many reactionary left wingers screaming for Tory blood, convinced that the pompous and capitalist right wingers are back with a mission to privatise the health care system, to finish what even Thatcher couldn’t achieve.

This is simply not going to happen. Even those who dislike the Conservatives know that they would never privatise the NHS. Yes, there is a section of the Tory party that would love privatisation to happen, and have a deep dislike of the system. However, whilst Cameron is leader they will be ignored, and rightly so. The way to solve the problems inside the NHS is most defiantly not to sell it off, and the majority of Tories are well aware of that.

The fact is that there are huge problems within the NHS. It was reported in the press recently that prisoners now receive better food than those who are ill in hospital, with food needlessly transported up and down the country. GP’s have managed to secure a bizarre deal whereby they work less, but receive more money. Since 2003, the salary of a GP has increased 58%. On average, a GP now works 35.6 hours a week, and receives £114,000 a year. It has also emerged that 45,000 NHS staff claim in sick every day, double the rate for the private sector. Astonishingly, many are paid overtime, due to a deal struck with the unions. This costs the general public £2 million a year.

However, despite what many say, I don’t think the problem is NHS staff. The majority of those who work for our health service deserve our upmost respect, as they are in an extremely worthy and noble profession that is helping the health and well being of our country and her people. There are bad employees, but the same could be said of any occupation across the land. Although some of their salaries may be too high, the predicament does not lie with the staff.

We must look at the Prime Minister, Gordon Brown, as one of the main culprits. Brown arrogantly tells the British Public that Labour know what is best for the public, and how to spend our money. Better than the Conservatives, and certainly better than us. Our Prime Ministers assumption is up for question, especially when we see that Labour has spent an excessive £110 billion a year on health. Despite this, for many the NHS remains simply a postcode lottery.

The irony of all this is that there are still people out there who believe that in Mr Brown we have a safe pair of hands, someone with admirable financial prudency that can see us through the recession. Nothing could be further from the truth. Labour often moans about the lack of genuine policies from the Tories, and their cloudiness and failure to deal in fact. Here are some facts.

When Gordon Brown became Chancellor of the Exchequer, the economical fundamentals were in place for a strong economy. Unemployment was already falling from 3 million to around 1.6 million, and the country was thriving from privatisation of businesses. Brown’s supporters claim that the financial state we are in is merely bad luck on Brown’s behalf, but using that logic, surely his successes was then just good luck as well?

Between 1998-2005, public sectors swelled by 11%, creating nearly 600,000 more public employees. The state also now employs 3,250 press officers. Which leads to the questions, what were all these people doing?  The benefit system has lost 2.3 billion through various errors. 9 resignations from the health service have cost the country three billion pounds. When a fifth of the Royal Navy Fleet had to be cut in order to save money, the go ahead was given for a 2.3 billion HQ for the ministry of defence.  Brown also introduced 66 new types of tax, and used complex language to disguise what was really just a waste of public money, which played a huge part in getting us into the financial mess the country is in.

In another regretful move, Brown decided to sell a great deal of our gold supply, believing that at the time it was selling at a good price. Since then gold has rocketed in value. The treasury’s electricity bill has tripled since 2000, and spending on stationary has risen so fast it represents the cost of 10 million ball point pens! Worryingly, The Centre For Economic and Business Research found that £58.4 million is squandered across the public sector.

Brown loves to boast of the generosity Labour have show in public spending, and it is true they have increased the amount of money that goes towards education and health significantly. However, the problem is that the government seem to think that throwing money at something makes it better. It doesn’t. Has education really improved as a result? Results suggest not. Does the NHS offer a better service? Many would argue that it doesn’t.

In fairness to Brown, he has not been solely responsible for all of our financial difficulties. Nor has he been behind one major individual problem. However, all of these needless acts of extravagance have undoubtedly contributed to our financial crisis. Does Scotland Yard really need to spend £12.5 million a year flying it’s officers first class around the world? Despite all of this, Brown has convinced himself he is a hawk eyed defendant of our money. The trouble is other people are accepting his delusion. They really believe that the Tories are going to come and turn the country into a right wing state and cut all public spending.  These people should look more towards Labour. Can you imagine if The Conservatives had attempted to push through the detention bill that Brown himself was so fond of? They would be labelled as a cluster of legalistic right wingers, denying human rights. However Brown somehow survived that absurdity.

This leads me on that what I feel has been a serious mistake on part of The Conservatives. This is a real chance for David Cameron to prove his worth as a top class politician. He should forget about the ramblings of attention seekers such as Dan Hannan and focus on Brown. The facts are there and Labour is there for the taking. But so far Cameron has restrained from launching a full scale attack on the government shambolic misuse of finances. I fear that Cameron is worried about his party receiving the tag of being ‘anti-public health care’.

There is no denying that New Labour has had many positive moments, some of which have been genuinely good for Britain. In 1997 the time was right for change, and the Conservatives were not fit to lead the country. Even now, whether their policies are up to standard is a separate debate altogether, and will come under much scrutiny before the general election. David Cameron will have to prove to the electorate that he is genuinely concerned about those less fortunate than himself, and he can understand and support them. Many people simply don’t think he can. The public’s frustration with mainstream politics is completely understandable; as is the fact the people don’t want the Conservatives in power. However, that many of those same people would consider voting for a further term for the Labour government beggars’ belief. It is easy to respect what Labour used to stand for, and many are clinging on to that ideal of the party, even though it is long gone.

The problem is that many of the electorate are living in the past. They want to hate Cameron’s Conservatives. Why? Because they lived through the supposed dark days of Thatcher. Or perhaps their parents told them about ‘Iron Lady’ and how they considered her to be a wicked woman. What they fail to understand is that politics has moved on. It hurts them to admit that the previously left leaning government are now as conservative as the Tories. It is fairly clear that Tony Blair and Labour opposed hardly any of Thatcherism, and instead of abolishing many of her policies, they simply toned them down and made them more practical, with Blair providing a more friendly face than the  formidable Thatcher. The truth is that David Cameron is far more similar to Blair than Thatcher.

The truth is that the choice between Labour and The Conservatives is no longer between left and right. No longer do Labour represent socialist values, or stand for the working man. If anybody things that a government who declared war on Iraq and tried 42 day detention bill are verging on the left they are fooling only themselves. It is clear the parties have simply merged in the middle of the political spectrum.  Voters must decide who will make a better government, and put the best wishes of the country first.

The excitement and positive outlook of New Labour is dead. The Iraq War was the start, and other events have just been further nails in the Labour coffin. ‘New’ Labour is old hand, and is dying a slow and painful death. Let’s see if Cameron has it in him to finish them off.

Parliamentary Spotlight:

In Parliamentary Spotlight on August 27, 2009 at 11:54 pm

Prime Minister’s Questions

Prime Minister’s Questions officially began in 1961, set up by Harold Macmillan to be held twice weekly on a Tuesday and a Thursday. It stayed this way until 1997 when it became one of the first of Tony Blair’s parliamentary reforms. The idea of PMQ’s is so that the premier can be scrutinised by all members of the Commons. Which is all very well in theory.

But in practice it is a different story. Now once a week for half an hour, it is becoming extremely tiresome. Critics of Blair often put the reason for change down to Blair wanting to spend as little time in the Commons as he could get away with, but half an hour is much, much too long.

The whole drama of the event vanishes after the two leaders of the opposition have finished their questions. Between their 8 questions, they will normally have asked most of the serious matters on people’s minds, and if not, then these will be asked very shortly afterwards, leaving at least 15 minutes left. The rest is all filler, and not even interesting filler. For the most part it is desperately dull.

From the opposition, there is often either basic repetition of what has been said before, or just a basic question asking whether the Prime Minister has received a letter about one of their concerns and “will you have talks with me about it later?” Occasionally you will get an inflammatory question about some deficient act of government policy, and plenty of noise from both benches to accompany it. Occasionally.

But by far worse is the inevitably cringe-worthy spectacle of watching an MP on the government’s side ask a question. Normally a younger sycophantic backbencher, usually with aspirations to become a minister and told by the whips that this is a good way to get themselves noticed. This patsy question will normally go along the lines of “Congratulations to the Prime Minister on [insert drivel here], but will my right honourable friend do all he can to help the [insert group of people here] in my constituency, who…” As if the Prime Minister is going to turn around to them and say ‘No.’

The above has to be not only the worst part of the process, but it’s not even as clever as the backbenchers might think. Not so very long ago, perhaps two months or so, Gordon Brown was having one of his best PMQ sessions since becoming PM. It was refreshing to see him on top of things for a change. He knocked back all of David Cameron’s questions reasonably well, and thought on his feet well when other Conservatives tried to dig the knife in. He even said something to the tune of  ‘The opposition have no serious questions, they are all on style, and none on policy,’ and no-one laughed at him.

But then it happened. He had just answered an opposition MP’s question and one of his own backbenchers, possibly the notorious Margaret Moran, was called to speak. ‘Would the Prime Minister,’ she began, grinning inanely with all the smarmy qualities of somebody who really has no idea of the damage they are about to cause, ‘like to celebrate with me on Luton Football Club being moved up a division for the next season?’ The opposition had a field day. All of Brown’s accomplishments in that one session vanished and he limped on amongst immense jeering.

Sad as it is, performance at PMQ’s can really matter for the party leaders. Margaret Thatcher would have been thankful that it was not televised when she was in opposition, as she often only asked one question and was never really a match for Wilson or Callaghan. But nowadays, PMQ’s can be said to have contributed to the failed leadership of Iain Duncan Smith and Menzies Campbell.

It is hard to say what should happen to PMQ’s but perhaps it would at least be better reverted back to twice a week. Unfortunately, the new speaker John Bercow seems enthusiastic to take in as many backbenchers’ questions as possible. In reality, this I feel takes away from any sense of scrutiny by PMQ’s and instead merely turns it into a joke.