More on 55%

May 13 2010

A debate has been raging on Twitter and elsewhere about the new coalition’s proposal to legislate to require a 55% Commons majority to dissolve Parliament. Quite a few people are arguing that I and others have got this wrong, and that the proposal is not so awful as it’s been painted.

The central misunderstanding, it’s said, is that a vote for dissolution is not the same as a vote of no confidence; it would still be possible for 51% of Parliament to vote a government down, and force it to resign, according to this argument. Mark Pack has argued that understanding this distinction is the key to “getting” the proposal, and so has Keith Death. So a Commons majority’s inability to force an election if, say, the coalition broke down would not mean a minority Tory government could remain in office. Many, like loveandgarbage, argue that an enhanced threshold like this applies under the Scotland Act, and is no big deal; the coalition simply wants the same sort of rule.

James Medhurst has also put me right, by reminding me that Labour’s manifesto included a promise of fixed-term Parliaments. Quite right, James, I should have remembered that, but didn’t.

Good points, all. But I’m not satisfied – not by a long chalk.

First, let’s look at the Scotland Act. It’s quite true that section 3(1)(a) only permits an “extraordinary general election” (i.e. one before the Parliament runs its full term) if two-thirds of the Parliament votes for one. But you have to bear in mind section 3(1)(b), too, which requires an election if the Parliament is unable to decide who should be First Minister. Section 46 deals with the nomination of a First Minister, and makes it clear the Parliament has 28 days in which to decide on one. Finally, Rule 11.10 of the Standing Orders of the Scottish Parliament sets out the procedure for nominating a First Minister. Those rules are complex, but if you consider paragraphs 5, 7, 8, 9 and 13 you realise that any candidate ultimately needs a simple majority in his or her favour in order to be nominated. It’s possible for MSPs to abstain, and allow a minority preference to be nominated; but it’s also possible for a determined minority of 51% to block any nomination, and thus force an election under section 3(1)(b) of the Act. The Scottish system therefore contains a “safety valve” requiring dissolution if a Parliamentary majority wants one. It isn’t true to say it always requires an enhanced majority for dissolution as a hard and fast rule.

If the coalition wants a similar system to that, it would make their 55% proposal more palatable. But do they? It seems to me that to do so would actually defeat the purpose of the 55% rule.

Think about it this way. If the LibDems left the coalition, then they, Labour and others could get together and vote the government out of office. David Cameron would have to resign, according to Mark Pack and Keith Death. But who would govern in his place? If you have a hard and fast 55% threshold for dissolution, then the majority would have to form some sort of arrangement to govern together, the progressive coalition would be mandatory, and (because it would only have 53% of the seats) could not seek a mandate without Conservative agreement, even if it wanted to. But what if the progressive coalition couldn’t agree? Would Harriet Harman, as leader of the second party, have to form a government? If you think about it she would have to be tolerated by the failed progressive coalition, or else she’d be defeated on a confidence vote, too, and would have to resign. On this logic, politicians who could not agree on a programme would be forced to tolerate an unwanted minority government, or else leave the country without any sort of government at all. The country would be at the mercy of the Conservative party, and we’d have to hope its MPs acted sensibly

And of course these decisions – Labour’s and the LibDems’ decision whether or not to work together, Plaid’s, the SDLP’s and others decisions whether to join in and so on – would have to be taken within the short period between David Cameron’s resignation following the no confidence motion and the summoning of a new PM. How long would be allowed? Would the country be without a government for days? Or would (as my original post feared) a minority Conservative government be allowed to stay in office anyway, pending an alternative?

When you take all this in, you realise that the distinction between a no confidence vote and a vote for dissolution is a vanishing one. If the LibDems left the coalition, they would first need to decide whether or not they could strike a deal with Labour and others. If so, they could vote down the remaining Conservative administration, and the Queen could send for Harriet Harman. But if not, there would be no point whatever in a no confidence motion. The 55% rule would operate just as intended – as a deterrent to such a motion. It would indeed protect a minority Conservative government even if it did not have the confidence of the House.

It’s quite true that 51% of MPs could vote to repeal the 55% rule, so rendering it ineffective in the first place. But first, that depends on the current administration allowing Parliament to debate and vote on a Bill introduced by opposition MPs. Could we be sure it would do so? Second, that assumes the coalition is not intending to “entrench” its 55% rule, by for instance requiring a 55% majority to repeal it. That would be really dangerous constitutional fiddling – but then the 55% rule is dangerous constitutional fiddling anyway. I wouldn’t put it past them.

What are the alternatives? Well, you could have the Scottish safety valve I described above, which would allow a 51% majority to force a dissolution, after all – you would simply have a 28 day waiting period, and no truly fixed-term Parliament at all.

A much better way of achieving what I think the coalition wants is a public agreement that a 51% majority in Parliament must agree before the PM could seek a dissolution from the Queen – arguably creating a new constitutional convention about dissolution. Or, if that’s not firm enough for them, they could pass legislation requiring a 51% majority resolution before the PM could ask for a dissolution. That would prevent David Cameron from seeking a dissolution without LibDem agreement. But it would not protect him from Parliamentary accountability.

The 55% proposal remains a bad, undemocratic one, and should be opposed. None of the arguments anyone has made have persuaded me otherwise.

2010-05-13T13:00:47+00:00Tags: , , |

No to 55%

May 12 2010

The new government is only a day old, and already it’s engaging in constitutional whimmery, even though its formation and existence proves the value and robustness of the constitution we have. The coalition agreement (Part 6, page 3) says this:

The parties agree to the establishment of five year fixed-term parliaments. A Conservative-Liberal Democrat coalition government will put a binding motion before the House of Commons in the first days following this agreement stating that the next general election will be held on the first Thursday of May 2015. Following this motion, legislation will be brought forward to make provision for fixed term parliaments of five years. This legislation will also provide for dissolution if 55% or more of the House votes in favour.

This must have seemed reasonable at the time; it makes sense that the two coalescing parties should want to bind each other in to a fixed-term agreement. I was expecting them to make a public agreement that the Cabinet should have to agree unanimously (or perhaps with a maximum of three votes against, say, bearing in mind the LibDems will have five Cabinet seats) before the PM could seek a dissolution of Parliament. In effect, it would be an agreement to suspend the convention that the decision to seek dissolution is for the PM alone.

This proposed legislation, though, seems to aim at preventing an election even if 54% of MPs want one. That is wrong in principle, it’s undemocratic, and it must be opposed.

What it would mean is that if the coalition broke down, the Con-LibDem administration would end too. Of course. But there wouldn’t and couldn’t be an election. Instead, a minority Conservative government would be able to carry on – its 306 seats giving it a blocking minority of 47% – and as long as it kept discipline it could rule without the confidence of Parliament. Bear in mind that this could happen the moment this new legislation comes into force, which is presumably intended to be soon, so that government could go on, effectively behind Parliamentary barricades, for months or for several years. Even for this to be theoretically possible is, I’m afraid, outrageous and unconscionable. Whatever government we have, it must be accountable to Parliament.

Constitutional reform is one thing. Constitutional whimmery is quite another, and it’s something we’ve had far, far too much of recently, particularly from the Tories, strangely enough – David Cameron came out with a bonkers, half-baked unmanifestoed idea during the election campaign that was almost the exact opposite of this 55% one. Interestingly that idea wasn’t quite the direct opposite of this 55% one; both would protect him, and only him, if he did lead an unmovable Cleggless minority later this Parliament. His whimmery has been consistent in the one sense of being entirely self-serving.

This is a major constitutional innovation, dreamt up in a back-room by politicians and never put to the voters.

I have no hestitation in supporting the new “No to 55%” campaign. I urge you to support it too.

2010-05-13T00:01:41+00:00Tags: , , |

Who’ll be the new Attorney?

May 11 2010

As I write, David Cameron is the new Prime Minister forming a government that probably will be a coalition – but we’re not yet sure, quite. I type while watching the BBC’s Newsnight and waiting to hear confirmation that Liberal Democrats will join the Conservatives in office. But already, journalists and bloggers are speculating about who will get what job in the new administration.

Here at Head of Legal I’m naturally enough concerned about the legal jobs, especially. Justice is an important post, and the new Lord Chancellor will be responsible among other things for constitutional change including any change to the Human Rights Act (something I predict will remain in place by default, Tories and LibDems being unable to agree on change) and for the referendum it appears we’ll have on a new voting system, as well as penal policy. I’d be surprised if the LibDems got this prize.

Most political commentators however vastly underrate the importance in government of the Attorney General, which in my view is the more important and influential law-related post in government. I’d certainly want it over Lord Chancellor, even if it’s not a Cabinet post (which in my view it should be). Superintending the CPS is a serious responsibility, and under Labour, the Attorney had a policy role in the criminal justice field. Far more important, though, is the Attorney’s role as the government’s legal adviser, a role which allows the holder to decide policy disputes between departments (a key role especially in this administration), influence enough to determine the content of legislation in every policy field and the UK’s negotiating stance in Europe and, as we saw with Iraq, even effectively decide issues of war and peace. It really matters who gets the job.

The first point to make is that there are two Law Officers, not one. In a coalition government, especially one between two parties who take quite different views on the role of law and rights in government, and on this country’s relationship with Europe, I’d expect the Attorney General to come from one party and the Solicitor General from the other. The work each minister undertakes depends very much on personalities and the preferences of individuals: in my day in government, Ross Cranston as Solicitor General carried out a lot of advisory work under Lord Morris as Attorney, while Harriet Harman and Mike O’Brien were less legally-orientated ministers under Lord Goldsmith. There’s no reason why both Law Officers should not advise or even collaborate to produce agreed legal advice if they see fit. Whether they need to do this, and whether they will be able to, will depend on the level of trust between them and between the parties more broadly. If it doesn’t work well, more pressure will fall on government lawyers and more reliance will be needed on outside counsel.

The current shadow Attorney is Edward Garnier, who might well get the post. Another Tory possibility is Dominic Grieve, and Jonathan Djanogly has I think in the past shadowed the Solicitor General post. The biggest LibDem legal beast is Lord Lester, but I’d be astonished if he were appointed. Human rights is an area of serious potential policy tension in this new government, and Lord Lester is so closely associated with a pro-human rights campaigning approach that I doubt, frankly, that David Cameron could have confidence in his advice. He got pretty quickly to the end of his tether as Gordon Brown’s “goat”, after all. I doubt he’ll be milked again even if he could stomach working with Tories.

Another prominent Liberal Democrat lawyer is Lord Carlile, who presumably can no longer serve as the government’s independent reviewer of terrorism legislation, and as a more traditional barrister less obviously associated with the human rights view of the world, might be an option. Finally, the veteran LibDem lawyer Lord Goodhart comes to mind. David Howarth, the Cambridge academic lawyer, might have been a runner but stood down as MP for Cambridge this time. Presumably that means he’d rather be writing and lecturing that advising the government as Lord Howarth pending an elected Lords.

I suppose it might be a temptation to avoid partisan division and, killing two birds with one stone, to nod to the “independent Attorney” lobby, by appointing a non-party figure – in which case the crossbench peer Lord Pannick, probably the leading public law barrister of the last twenty years, would be the obvious choice.

2010-05-11T23:49:48+00:00Tags: , |

Kerry McCarthy is innocent!

April 30 2010

Or at least I think she may be.

She’s trying to get re-elected as an MP, and is as it happens Labour’s new media campaigns spokesman. But she’s in trouble, for having tweeted which parties a sample of postal voters had chosen. Here’s her statement on the matter.

There’s been a fair amount of speculation as to what offence she might have committed. Mark Park, who knows a lot about election law, initially suggested the disclosure could be contrary to section 66A of the Representation of the People Act 1983. I don’t think this can be right, though (and Mark agrees). The heading to the provision tells us it’s about exit polls, and it’s drafted so as to catch precisely what an exit poll is. Since what Kerry McCarthy tweeted was the results of actual votes, rather than being based on information given by voters after they voted, the section doesn’t apply.

In the BBC article, Bristol City Council suggest there might be an offence under section 66(4)(d). But that can’t be right either since it arguably only prohibits communication of who any particular ballot paper is cast for. It is not clear on its face that it catches disclosure of the results of an anonymous sample. And once you accept that it’s not clear, you have to apply the presumption that penal statutes are to be narrowly construed – in other words, you have to resolve the ambiguity in favour of the defendant. So Kerry McCarthy’s not guilty of that one, either.

If there’s an offence, I think it must be under section 66(4) simpliciter, as an old-fashioned Latin-spouting lawyer might put it. It’s not an offence under any of section 66(4)(a) to (d) – I’ve already dealt with subsection (4)(d), and subsections (4)(a) to (c) prohibit disclosure of information about the “official mark” (whatever that is) or of the number on a ballot paper. But the stem of section 66(4) – the bit before paragraphs (a) to (d) – imposes a duty on anyone attending proceedings in connection with the receipt of postal ballot papers to maintain, and aid in maintaining, the secrecy of the voting. If she’s breached that duty, she may have committed an offence under section 66(6).

But was she subject to the duty at all? It only applies to someone attending proceedings in connection with the receipt of postal ballot papers. In her statement, Kerry McCarthy says

On hearing the results of a random and unscientific sample of postal votes, I posted them on Twitter. It was a thoughtless thing to do…

which suggests she may not have attended proceedings at all, but rather heard the information from someone else who did. If that’s right, it may be that person who committed an offence, and not Kerry McCarthy at all.

I suppose there might be an argument that she aided or abetted the disclosure, by passing on the information to a much wider audience than the original audience of herself (presumably) alone, and that she’s therefore herself guilty of it. But, without doing extensive research into the application of the law of secondary liability here, I think there could be real legal difficulty with prosecuting her on this basis. How can she really be said to have assisted the offence if everything she did happened after the principal offence was complete? The Law Commission’s 2007 paper on assisting and encouraging crime suggests (from para. 2.30, especially paras. 2.32 and 2.33) that

what matters is that [Kerry McCarthy]’s assistance or encouragement has some impact on the course of conduct that ends in the commission of the offence

and that

The authorities speak of there having to be “a connection” between [Kerry McCarthy]’s conduct and P committing the principal offence. In A-G v Able, Mr Justice Woolf said that that there has to be a “sufficient” connection. However, the precise nature of this sufficient connection is elusive. It is best understood, at least where [Kerry McCarthy]’s conduct consists of assistance, as meaning that [her] conduct has made a contribution to the commission of the offence.

On the first approach, she’s certainly committed no offence. It must be doubtful in the circumstances that her own action really is “connected” to the principal offence in the sense of having contributed to it.

In any event, I think she can rest easy. Since she has removed the tweet now, since it appears to have been a genuine mistake (however silly) and since it’s unlikely to have influenced the election result, the CPS guidance on election offences suggests it will not be considered in the public interest to prosecute, even if the evidence is there.

2010-04-30T14:53:03+00:00Tags: , |

Short shrift for Lord Carey

April 30 2010

Lord Carey’s complaints about secularist oppression of Christians and call for “faith-sensitive” judges have received an unusually direct response from Laws LJ in his Court of Appeal ruling refusing permission to appeal in McFarlane v Relate Avon, the unfair dismissal and religious discrimination claim that Lord Carey had supported:

The general law may of course protect a particular social or moral position which is espoused by Christianity, not because of its religious imprimatur, but on the footing that in reason its merits commend themselves. So it is with core provisions of the criminal law: the prohibition of violence and dishonesty. The Judaeo-Christian tradition, stretching over many centuries, has no doubt exerted a profound influence upon the judgment of lawmakers as to the objective merits of this or that social policy. And the liturgy and practice of the established Church are to some extent prescribed by law. But the conferment of any legal protection or preference upon a particular substantive moral position on the ground only that it is espoused by the adherents of a particular faith, however long its tradition, however rich its culture, is deeply unprincipled. It imposes compulsory law, not to advance the general good on objective grounds, but to give effect to the force of subjective opinion. This must be so, since in the eye of everyone save the believer religious faith is necessarily subjective, being incommunicable by any kind of proof or evidence. It may of course be true; but the ascertainment of such a truth lies beyond the means by which laws are made in a reasonable society. Therefore it lies only in the heart of the believer, who is alone bound by it. No one else is or can be so bound, unless by his own free choice he accepts its claims.

The promulgation of law for the protection of a position held purely on religious grounds cannot therefore be justified. It is irrational, as preferring the subjective over the objective. But it is also divisive, capricious and arbitrary. We do not live in a society where all the people share uniform religious beliefs. The precepts of any one religion – any belief system – cannot, by force of their religious origins, sound any louder in the general law than the precepts of any other. If they did, those out in the cold would be less than citizens; and our constitution would be on the way to a theocracy, which is of necessity autocratic. The law of a theocracy is dictated without option to the people, not made by their judges and governments. The individual conscience is free to accept such dictated law; but the State, if its people are to be free, has the burdensome duty of thinking for itself.

So it is that the law must firmly safeguard the right to hold and express religious belief; equally firmly, it must eschew any protection of such a belief’s content in the name only of its religious credentials. Both principles are necessary conditions of a free and rational regime.

I agree with Laws LJ completely; Lord Carey’s observations were indeed misplaced, and his response is a total refutation of them. I can understand the urge to set out plainly the clear and incontestable case for secular courts and law dispensing equal justice to all. So I support him. But I’m a bit surprised by this, to be honest, and I wonder how wise it is. No one who believes Christians are oppressed in this country is likely to be persuaded by anything anyone says to the contrary, however sensible. But by in effect publicly debating with them, Laws LJ risks lending credibility to campaigning fundamentalists. Some well-meaning people in the muddled middle, who don’t yet realise this case and Lord Carey’s intervention are part of a shrill, atavistic campaign of religious self-assertion, may be told and perhaps even believe that Laws LJ has taken a non-neutral stance. Certainly, if religious activists are (as I suspect) about to start trying to have judges removed for supposed anti-Christian bias, Laws LJ has given them their first target. I note Lord Carey hasn’t been slow to attack again.

It might have been better to ignore Lord Carey and simply rule on the case itself, which was the worst, most hopeless and absurd kind of religitigation. Gary McFarlane tried to claim not only the personal right to discriminate against gay couples in his counselling work, but apparently the additional right to resile from a personal assurance that he would not discriminate. Mind you, perhaps Laws LJ felt he needed to include ten paragraphs about Lord Carey just to bulk up the judgment a bit, which otherwise would have been an embarrasingly short dismissal of a silly attempt at an appeal.

Finally, as an atheist, my views on church leadership may be of no account, but even I would like to be able to admire and look up to religious leaders as impressive men and women of moral principle. Unfortunately Rowan Williams, in his appeasement of bigotry and flirting with sharia, personifies unprinciple; and now Lord Carey has lent himself to a narrow, mean-spirited and selfish cause. If Christians feel their faith is held in contempt, perhaps they should look to themselves and the leaders who make it contemptible.

2010-04-30T11:53:38+00:00Tags: , , , |

Erasing David

April 28 2010

Erasing David is David Bond’s documentary dealing with liberty, privacy and the “surveillance state” – I was lucky enough to attend a screening last night. The official website describes it in these terms:

David Bond lives in one of the most intrusive surveillance states in the world.  He decides to find out how much private companies and the government know about him by putting himself under surveillance and attempting to disappear, a decision that changes his life forever.  Leaving his pregnant wife and young child behind, he is tracked across the database state on a chilling journey that forces him to contemplate the meaning of privacy and the loss of it.

The first thing to say is that Erasing David is an absorbing, entertaining and well made film which certainly does make you think. I enjoyed it a lot. The concept is an intriguing one, David Bond is engaging company and often funny, and the detectives he challenges to track him down are an interesting pair, too. The film has humour as well as a serious message, and is all the better for that. It’s well worth seeing either in the cinema or when it’s shown on More4 next Tuesday at 10 pm. It’s a good piece of work and a contribution to an important debate. Do you feel a but coming?

The but is simply this: I don’t think Erasing David even gets close to making out its implicit argument that we live in a “database state”. I do not share the conventional liberal wisdom that we live in some sort of “surveillance society”, and as I watched Erasing David I began to think it confirms my feelings much more than it does the fears of civil liberties campaigners.

The first, crucial point is that right from the very start, David Bond concedes the central point of the argument: the state would not try to find him unless he committed a crime, he tells us. That’s why he involves private investigators. Had he not approached them, he wouldn’t have been under any surveillance at all. The so-called surveillance state simply isn’t interested.

But the methods the investigators use to find him are also revealing. They do not use DNA or the DNA database. Of course not – partly because they have no access to it, and partly because DNA can’t be used in surveillance. Nor do they use CCTV, partly because they have no access to it, I suppose. So neither of the main building blocks of the “surveillance state” is tested by the film, which provides us with precisely no evidence that either can be used to keep tabs on us, or is being used in that way by “the state”.

In fact, the methods they used to track him owed nothing to databases or to the state. They harvested as much information as they could from websites, like Facebook and LinkedIn, where Bond had voluntarily posted information, without any requirement or encouragement from the state. They searched his dustbin. Then they contacted his friends and tried to lure them into revealing information about him. They found his address and those of his parents (information which must be accessible through something like the electoral register, I accept) and were prepared to stalk those addresses – a very low-tech method of surveillance. They tried to trick him into visiting a special website so they could locate him via computers. Finally, they impersonated him over the phone, gulling the NHS to remind him of his wife’s ante-natal appointment, and gambling that they might find him there, too.

What does any of this prove? Nothing. The information about the appointment was nothing to do with databases: that might have been any appointment, public or private, noted down in any diary. Is our privacy breached when our friends jot down reminders of our lunch dates? And how could that kind of data security breach be prevented? Only by the NHS’s insistence on having you provide secure evidence of your identity – for instance by asking to see your passport, something the film suggests at one point would be a privacy risk, or by means of the sort of biometric ID system that would horrify David Bond. The key point of the whole film proves that talk of a “surveillance state” does not refer to one, big cause at all but to a series of separate causes of concern (DNA, CCTV, data error, identity theft, fraud, commercial use of data, carelessness about social media, the risk of investigators training through your bins …) some of which, crucially, are in tension with each other and none of which relate to anything the state is doing.

David Bond pleaded with us in a discussion after the screening (those who do not have unusual health conditions, anyway) not to allow our data to be held on the new NHS database. But I was no clearer by then what bad thing he thought could happen to us if we did. What is the actual fear? And what is the proposal to deal with it? The only real damage to individuals the film cites are the case of a woman whose criminal record wrongly says she has committed theft (which would be solved by improving the criminal records system, not by abolishing it) and the case of a man wrongly drawn into a child porn investigation (but released because his credit card company had a computer record of where his card had fraudulently been used). David Bond fell back on imagining a possible future tyranny and the potential for it to abuse our data. But a future tyranny would not need DNA, CCTV, credit cards or computers in order to oppress any of us. The Nazis had none of those things, and the Stasi can at most have used bad computers in their last few years. Just as David Bond was tracked using old-fashioned methods, so those same old-fashioned means could be and have been used to build a genuine police state. In contrast to real history, David Bond’s concerns are simply sci-fi horror fantasies that happen to fascinate, just now, a surprising number of people in our very free society.

A final point. The state, as I’ve said, is not spying on us. There are, however, private interests who are prepared to follow and spy on an innocent woman as she buys underwear, to photograph her and to tell us all about it, without public interest justification. If you’re as shocked as I am by that, read all about it here. If you want to do something about that sort of real surveillance, you need to defend privacy law against claims of untrammelled liberty. Do all civil liberties campaigners agree about that?

2013-10-13T22:32:23+00:00Tags: |

Should innocent people be on the DNA database?

April 28 2010

It’s unfashionable to say yes, but I was defending that position again in the Times last week.

Some say that DNA taken from some suspects on arrest can legitimately be compared with unidentified DNA from unsolved crimes. So it’s all right for police to use the DNA of innocent people to investigate whether they’ve committed unrelated offences in the past; but not to use the same profiles later to see if they’re linked to a future crime. How can you agree to the first, if you claim the second breaches the presumption of innocence? The distinction is one of timing, not principle.

Actually the Times edited this part of my piece for some reason: what I originally wrote was that Liberty themselves accept DNA taken from suspects on arrest can legitimately be compared with unidentified DNA from unsolved crimes. Anita Coles’s reply to my piece confirms that. So Liberty’s approach to DNA is not as consistent or principled as first appears.

I also said:

The DNA database is in its infancy: to strangle it at birth would be a disproportionate response to unreal fears. We don’t yet know how vital it may be to keep the DNA of innocent people, and how many serious offenders it will enable us to catch and stop. Only experience and and research will show us.

If we took Liberty’s approach, how would we ever know?

2010-04-28T11:00:50+00:00Tags: , , , |

Cameron’s new constitutional whim

April 24 2010

I agree with the point David Cameron makes about hung Parliaments and coalition politics: the problem with them, and the proportional representation that would all but require them, is that they result in politicians, not the voters, deciding who governs. It becomes very, very difficulty to sack a government you hate – a power the British people don’t realise they have, and perhaps won’t, till it’s gone. I’m not sure what the solution is in the context of three-party politics. I do know PR for the House of Commons would be a mistake.

But Cameron is now also proposing that Parliament should have to be dissolved within 6 months of a change of Prime Minister.

I have some difficulty with this on its merits. What would happen if there were a hung Parliament? In the days after May 6 we may have a succession of Prime Ministers. Gordon Brown may be able to hang on for a week or two, or for months supported by a minority Labour party, or by the LibDems. If it only becomes clear after a few weeks that minority or Lib-Lab government could not be sustained, and David Cameron has to be sent for – should he have to call another election within 6 months? If Nick Clegg does a deal, say on May 12th, to serve under a new Labour leader, with Gordon Brown resigning – should there have to be an instant election then? Even worse, consider the constitutional position had the Brighton bomb succeeded, and the Prime Minister killed. Under Cameron’s new plan, we’d have had to have an election in Spring 1985, less than two years since the previous one. That would have been pointless and unfair to Labour – Neil Kinnock had by then had only one full year to begin transforming his party and would have been much less ready than he was two years after that. An instant election would have handed a new Tory leader power until 1990; and if you think about it, Kinnock might never have been able to reform Labour.

But the real point I want to make is that the new proposal is the direct opposite of the other bad idea he previously toyed with, of fixed-term Parliaments. The idea of fixed-term Parliaments is to remove the incumbent government’s advantage – or even an incoming government’s advantage – by making sure elections are spaced at 4 or 5 year intervals, with no option to go to the people early. Under this new plan, a governing party could engineer an election when it wanted, by timing a change of leader. It might have suited Gordon Brown very well, in fact, had he been forced to go to the country in Autumn 2007, instead of being able to flunk it, as he did. It certainly would have helped John Major win a “khaki” election in Spring 1991, soon after the defeat of Iraq in Kuwait. It would have given them each a perfect excuse to “cut and run” to take advantage of a poll bounce. Cameron’s proposal assumes that early elections are a constraint on new Prime Ministers – but in fact, they might often haved liked them, had they been able to get away with them.

Politicians’ constitutional whimmery has to stop. Is it even worth mentioning that this wasn’t in the Tory manifesto?

2010-04-24T19:13:30+00:00Tags: , , |

Lap-dancing clubs and human rights

April 21 2010

I’ve written at Comment is Free today about the threat, made by lap-dancing club owners, to use the Human Rights Act to challenge the new legislation regulating them:

It’s difficult to argue that firms should never enjoy convention rights – if they didn’t, media organisations like the Guardian would be unable to enforce freedom of expression, in all our interests … But there is a real absurdity in the idea that a hedge fund based in the Cayman Islands can claim its human rights have been breached.

I explain the new legislation, then give my view on the club owners’ chances of success and on the attitude councils should take in the face of them. Read the full piece here.

2010-04-21T14:36:18+00:00Tags: , , |

Arresting the Pope: a Catholic response

April 19 2010

I’m interested in the response by the Catholic Union to the recent suggestion that the Pope should be arrested and held legally liable for his alleged failure to tackle the sexual abuse of children. The full pdf file of the press release outlining their response is here.

To say, as they do, that

There is not a single criminal offence under British law which could conceivably be alleged against Pope Benedict

is I think putting their case unnecessarily high. I agree there’s nothing he can realistically be arrested for, but to consider the documentary evidence of what he has done in the past in legal terms, as Richard Dawkins and Christopher Hitchens have asked lawyers to do, and to suggest that international human rights law may be or should be relevant is neither inconceivable nor “risible”, as the Catholic Union also suggests.

I don’t think they help their moral case by implicitly arguing on technical grounds that the Pope, or Cardinal Ratzinger as he was, cannot be legally responsible for the Church’s actions:

The power exercised by Roman Catholic bishops in law relates to their position as employers, school governors, trustees etc under English law. None of these offices are held by the Pope. His influence is exercised through the purely voluntary obedience of Catholics. Without direct legal power no duty in law can be justly implied. Even the appointment of bishops is not always recognised by some countries.

Which amounts to defending him on the basis that “he never gave any orders”. This strikes me as the worst sort of casuistry. It is quite clear that both the Pope and the Prefect of the Congregation for the Doctrine of the Faith make authoritative decisions, determine the culture and practice of the church and set its policies; and of course in the Kiesle case it appears Cardinal Ratzinger personally made the important decision not to defrock.

But they go further:

… responsible commentators ought to weigh carefully the possible consequences of this campaign of vilification against Pope Benedict XVI. An attempt was made on the life of Pope John Paul II by an assassin in 1982. Many public figures face dangers of this sort in today’s world. If a protester is incited to perform a publicity stunt such as a citizen’s arrest of the Pope, then police officers will be put in a difficult position. Faced with having to make a swift decision as to whether a situation is a publicity stunt, a lawful protest or an attempt on the life or limb of the Pope, the consequences of any such decision might be serious and involve innocent bystanders.

which seems completely over the top as a way of trying to deter and silence criticism.

Finally, the Catholic Union brings religious hatred into it,

Incitement to religious hatred is a criminal offence and has public order ramifications. Moreover, religious vilification against the Pope may ultimately result in the same happening to innocent British Catholics

which clearly implies that trenchant criticism of a particular religious person and critical scrutiny of his actions in legal terms amounts, or may amount, to religious hatred.

That simply proves how lucky we are that the Racial and Religious Hatred Act 2006 was watered down before it was passed so that only threatening words intended to stir up religious hatred amount to an offence. Had the legislation been aligned with section 18 of the Public Order Act, as ministers originally wanted, no doubt someone would be asking the Attorney General to prosecute Richard Dawkins already.

2010-04-19T17:06:45+00:00Tags: , , |
Copyright 2022 Carl Gardner. Site by Samsara
Go to Top