Wednesday 27 May 2009

Progressive reform through Conservative means?

David Cameron yesterday gave a speech on constitutional reform.

I agree with the idea that local councils and devolved assemblies should have more power and autonomy, though Cameron has avoided the whole issue of Parliamentary Sovereignty - if the constitution can be so easily changed to devolve power down, then power can be quickly and easily centralised again by a determined government/parliament. Also disappointing is Cameron's avoidance of the issue of the House of Lords.

It would be too much to hope for Cameron to start a debate on the sorts of policy and the areas of competence that local government should have - and what this means for policy areas such as health, policing and education. If health is controlled more locally (decisions over medicine provision, etc) then how will/should that affect access to health care outside your area (if it should be controlled locally to a degree)? Should police be subject to some local control, and what are the implications for the political neutrality of the police? Hopefully now the issue of competence has been raised, there will be some debate on it.

I like the talk on the power of the whips being reduced for the early stages of the legislative process, but how will this be enforced? If it's just a political convention, political pressure could see a government or an opposition increase the power of the whips again when "politically necessary" for the party. Conventions are weak, and depend on the self-restraint of MPs - perhaps some sort of parliamentary disciplinary procedure for whips who interfere at a point where parliamentary procedure allows MPs a free vote...?

The temptation to break with convention - even the most powerful and respected of conventions - can be very tempting when there's a political advantage in it. Daniel Hannan has recently called on the Queen to dissolve Parliament and call an election if Gordon Brown doesn't:

"If the Prime Minister will not ask the Queen for a dissolution, perhaps she should force his hand. Her constitutional role is very limited, but this strikes me as a case where she might reasonably act. The country unquestionably wants fresh elections. The legitimacy of our democratic system is in the balance. All three party manifestos have been rendered obsolete by events - as much by the financial crisis as by the expenses revelations. The only possible argument against an early poll is based on low political calculation - which it is precisely the Crown's role to transcend. Your ministers have failed you, Ma'am: send for better ones."
If the Queen is supposed to be politically neutral, then she shouldn't intervene - those judgments are political ones, and, really, it's not up to the Queen to judge her ministers. I can't see how the Queen can call an election unilaterally when the polls show that the Tories will win and it wouldn't be see as political. It would be breaking convention and a breach of political neutrality for the Queen to decide what the best political course of action is. Especially since constitutional reform is in the air. The Queen is wise not to start tempting fate by exercising her power in a controversial way (even if you hate Labour) when people are pushing for constitutional reform.

Cameron's speech also has some points I would be seriously critical of:

Cameron's reasons against PR - that in a fixed term parliament it would be bad to have a parliament where the government didn't have a majority and that is weakens voter's ability to decide on the government.

First, the problem of weak governments could be fixed with a minimum requirement of votes to ensure there are coherent parties and if a government can't be formed after, say 3 months or 3 attempts, then there could be an automatic election under a fixed term system - fixed term meaning that parliament or the Queen don't decide on when an election happens, but the stability of a government and the set term of the parliament does.

Second, if parliament is to be strengthened at the expense of the executive, then no government will be able to push through their manifestos and implement them. Wasn't that the point of reforming parliament - so that it would be stronger and more diverse views would be expressed and constituents would be better represented? The more power parliament and individual MPs have, the more consensual politics become, and manifestos are implemented less directly and clearly. If Cameron wants MPs to go through legislation line by line and for parliament to have more legislative input independent of the executive (with perhaps even citizens proposing legislation for parliament to debate), then the importance of government manifestos is weakened as a more consensual approach to legislation is taken. Why then, is a consensual government - or coalitions - a bad thing? If you're going to have a more powerful and consensual parliament, then why not go for PR, where fewer votes are wasted? Does Cameron fear Parliament becoming political? Did he just want MPs to make legislation more efficient and effective and leave the serious politics to the government? Coalition governments can be effective in implementing their respective parties' manifestos - it's more likely that right-wing and left-wing parties will join with like-minded parties to govern, and the changes in policy from manifesto to government need not be so great. And, again, since a consensus needs to be build in Parliament anyway, what's wrong with a consensual government programme? Or to put it another way: why should a party with 1/3 of the vote be able to impose it's manifesto outright?

On Human Rights and the power of the judiciary, I wonder if Cameron actually knows much about this area in the first place.

"...since the advent of the Human Rights Act, judges are increasingly making our laws."

Increasingly? Judges in the common law system always had some law-making power - that's what the common law is: judge-made law. The Human Rights Act involves the interpretation of Acts of Parliament in the light of the Human Rights Act (another act of parliament, though it copies and pastes practically all of the ECHR, it's still an Act of Parliament, and the ECHR only has legal effect because of this). The HRA states that judges can interpret laws into line with the ECHR (which they do, sometimes creatively) or declare laws incompatible if such interpretation is impossible (which has the effect of doing, well, nothing). So judges interpreting law passed by Parliament in light of law passed by Parliament - sounds pretty much what judges are supposed to do, doesn't it?

And the alternative?

Cameron proposes a "British Bill of Rights" to "strengthen our liberties". Ok, so what does that mean, exactly? From the speech, it sounds like he thinks that the HRA has gone too far, so I would guess that he wants a diluted version of the ECHR. Does he propose pulling out of the ECHR? If not, people can still appeal to the court in Strasbourg which, although unbinding (almost like the judges' rulings under the HRA if there's incompatibility), it does have a political effect. So does he want less rights than the ones under HRA? More? What does he want - does he have policies or is he just staking out a populist decision? And again, what about the old question of Parliamentary Sovereignty - where does Cameron stand? If, under a British Bill of Rights, the rights are enshrined and cannot be repealed by implication by Parliament and judges still interpret the law, then judges have the same power (maybe more if declarations of incompatibility start to mean something), but if PS is reasserted, then rights won't be protected as well as they will be vulnerable to the whims of Parliament. So what's it to be, Cameron?

Finally, on Europe, Cameron highlights it's unaccountability and its remoteness. So, where are his policies? What powers should be taken back? What policy areas shouldn't be? On the policy areas that shouldn't be, what policies will the Conservatives pursue in the EP and how should the EP be reformed to make it more in touch with voters? Cameron has failed to articulate any opinions he has on these issues (and you never know, he may have some) despite the looming European election. How do you propose to make the exercise of power in the EU that you're happy to leave there more accountable if you fail in your duty to explain and formulate policies for the voter to choose or reject?

Sadly, the Conservatives are far from alone from this in the UK.

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