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The importance of confronting the unjust

The Countryside Alliance continues its quixotic fight to use the approved levers of power to overturn the ban on hunting with hounds. Somehow the realisation that there is nothing at all ‘undemocratic’ about the fact they are being oppressed by the state has still not percolated through those worthy but rather thick country skulls.

Mr Jackson said the Countryside Alliance believed that the House of Commons acted unlawfully in forcing through the Parliament Act in 1949, without the consent of the House of Lords. Mr Jackson stressed that he was not challenging the supremacy of Parliament.

But why not? If Mr. Jackson believes that what is being done to him by Parliament is unjust, then why not challenge the supremacy of Parliament? There is nothing sacred about a bunch of lawmakers and a law is only as good as its enforcement. If the Countryside Alliance actually have the courage of their convictions, they must start challenging the right of the state to do whatever it wishes just because its ruling party has a majority in Parliament. Maybe if they realised that they are a minority and will always be a minority they would be less inclined to trust the old way of doing things. There is a long history of civil disobedience to duly constituted authority in the defence of what is right. That matters far more that what is or is not legal.

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44 comments to The importance of confronting the unjust

  • Euan Gray

    If Mr. Jackson believes that what is being done to him by Parliament is unjust, then why not challenge the supremacy of Parliament?

    Because Parliament is legally supreme (read Dicey) and frivolous challenges like that not only get thrown out of court in seconds, but they undermine the valid position the protest is trying to establish. That’s why.

    they must start challenging the right of the state to do whatever it wishes just because its ruling party has a majority in Parliament

    But that’s not the same thing. Parliament is supreme, but for as long as the law exists it must obey it (rule of law). It can of course change the law, but in this case it has not. The protest is against the use of the Parliament Act of 1949, not against Parliament per se, and appears to hinge around the concept that the use of the act to force through law other than constitutional law might in itself be unconstitutional.

    EG

  • Richard Thomas

    It’s the wrong battle anyway. So say they manage to win and the house of Lords does have to approve any such act. What re they going to do in 5 years time when the old guard have died off and Tone has stacked the house in his favour?

    That said, I don’t have much sympathy for them. Unbridled freedom to inflict suffering on animals is not a right. Speaking as a pretty hard-line libertarian, there must be some room in the libertarian philosphy for the protection of animals.

    Rich

  • Kristopher Barrett

    If you own that animal, you should be able to do with it as you please.

    If someone else does something evil or disgusting to animals, I would suggest that ostracism and public ridicule are the best options to deal with the problem.

    And yes … parliment is supreme in the UK … and the same crap is starting to happen in the US as well. The US Constitution has one fatal design flaw in it …. it depends on being enforced by judges who are selected for office by the very politicians it is supposed to limit.

    At some point, all States eventually get stupid and oppressive, and require revolt to fix.

  • Guy Herbert

    I’m with Euan Gray on this one. Start insisting courts address substantive injustice and you quickly spiral the way of the New Left and arbitrary people’s courts, even if the content of the “justice” you support is a reactionary one. The rule of law that mostly gets supported on this site is precisely that: fair procedure (meaningful) rather than fair result (not, in general).

    Where I depart from EG is …”and appears to hinge around the concept that the use of the act to force through law other than constitutional law might in itself be unconstitutional.”

    I don’t think that’s the contention.

    The point I believe being put it that the Parliament Act 1949 is not an Act, so its procedure can’t be used for anything. It isn’t an Act in this view because the 1911 Act can’t be used to alter parliamentary arrangements. It is the application of the 1911 Act and the consequent validity or otherwise of the 1949 Act that the courts will be asked to decide.

  • Della

    I think the way the Parliment act 1949 was put through was not proceduaraly valid. If they succeded in abolishing that act the consequences would be quite small. It has only been used 4 times, and 3 times by Blair, the only significant piece of legislation was the European Parliment Elections Act. The other 3, hunting, gay age of consent 18-16 and Nazi war crimes act are not so important (most Nazis are dead now) and could be gotten through using the 1911 act if they were just a bit more patient.

  • Pete_London

    That Parliament is the UK’s supreme authority in law-making and government is simply a matter of convention and tradition. It is not supreme due to ‘Divine Law’ and certainly can and on occasion must be challenged. The law making process may well drip with tradition and come surrounded by regalia but the Hunting Act 2004 is still nothing more than a few hundred people telling a few thousand that they can no longer carry out an activity which they have long enjoyed.

  • Euan Gray

    My mistake, it seems Guy is right & the challenge is that the 1949 Act is invalid.

    My prediction: this will get nowhere. The Act has been used on three previous occasions to force passage of law, as Della notes, and this has never been challenged.

    EG

  • Barnabus

    (speaking from across the pond)…I thought you people weren’t allowed guns anyway…lol…isn’t it more PC to just go “hunting” with the hounds alone and leave the guns to law enforcement…oh wait they only carry nightsticks….OK then just leave the guns to the criminals.

    Yeah I know, that was a cheap shot

  • Ken

    Yeah, the attack on the Parliament Act is ridiculous and doesn’t really give the credibility of the Countryside Alliance much strengthening.

  • Verity

    Kristopher Barrett – If you own that animal, you should be able to do with it as you please.

    Your post is a tiny bit untenable on two points, the first of which is, the farmer doesn’t “own” the fox. It’s a free agent roaming over land which may be owned by several different people or families. So the fox isn’t the farmer’s possession.

    Second, although I think the RSPCA has gone the way of the International Red Cross and other originally well thought of organisations which have been overtaken by expansionist and controlling ambitions, we have laws against cruelty to animals in Britain – and throughout the Anglosphere. Even if I owned a dog, I would not be free to beat it, starve it, neglect it or torture it.

    So you seem to be a little disconnected from reality.

  • Because Parliament is legally supreme (read Dicey) and frivolous challenges like that not only get thrown out of court in seconds, but they undermine the valid position the protest is trying to establish. That’s why.

    You completely miss my point. Yes, I know all that. My point is “so what?” They should be concentrating on making the law unenforceable and putting in the intellectual work to get their supporters heads around the idea that just because democratic politics say they have to do something, it ain’t necessarily so. Fighting in the courts is fighting on terrain which inherently favours the establishment and the Yeomen of the CA need to admit that they are not the establishment anymore. Remember the entirely democratically enacted legislation commonly called ‘The Poll Tax’? Parliament needs to be reminded of the limits of its political power and that means not playing by the rules. That is why civil disobedience is called… disobedience.

  • Your post is a tiny bit untenable on two points, the first of which is, the farmer doesn’t “own” the fox. It’s a free agent roaming over land which may be owned by several different people or families. So the fox isn’t the farmer’s possession.

    Not quite. It is a wild animal and so yes, the farmer does not ‘own’ the fox, but he should indeed own the right to hunt it (or prohibit it from being hunted) when it is on his land.

  • Jeremy Nimmo

    Verity, we’re not talking about people abusing their pets. Foxes are pests, as (in my country anyway) deer, wild horses, feral dogs etc. The RSPCA has been taken over by mindless freaks everywhere. In New Zealand, one regional group is trying to prosecute fishermen for cruelty to animals because (surprise surprise) sometimes you catch fish that are so large you have to gradually wear them down. How is that different from pursuing foxes as a social occasion? Here, likewise, an insane animal rights group forced the Department of Conservation (which owns/wastes about 1/3 of the country) to capture rather than kill some worthless feral horses which probably such went to some hippies who had them put down later anyway. For all I care, our SAS could have been trained by hunting them down and silently killing them with knives.

    Your Hunting Act is not a be-nice-to-the-foxes-which-are-useless-pests restriction on the maximum duration of a hunt, it is a violation of civil liberties. If you want to save the foxes, adopt one as a pet.

  • Richard Thomas

    But let’s look at this word a moment:

    right

    In terms of discussion, this word tends to trigger as synonymous with “entitlement” and oftentimes more incorrectly as “privilege”. However, its usage is based in its more literal interpretation as “correct” or “not wrong”.

    Thus it is correct that I should be able to defend myself, therefor I have a right to do so. It is correct that I should be able to speak freely hence I have a right to do so.

    I would posit that it is wrong for a being capable of understanding to inflict undue suffering on an animal that can feel it. Hence it is correct that that animal should be free from such suffering, thus animals which can feel it have a right to be free from undue suffering.

    Sure, hunt for food, it’s the way of the world. Maybe it’s even possible to justify vivisection. But start playing a Monty Python style mouse organ and you’ve crossed the line for sure.

    Rich

  • Christopher Price

    As Ive mentioned in previous posts on this blog, the libertarian position on animal welfare is the one issue that bothers me.

    Whilst I accept, of course, that animals are capable of constituting property, and would argue that the conservation status of many wild species would be much improved if more of them were owned, I have considerable difficulty in accepting any philosophy which holds that the owner of an animal has the right to cause it to suffer unnecessarily. Animals are simply not property in the same way that inanimate objects are- they can feel pain, stress and other traumas, and as such, to my mind at least there needs to be some enforcement mechanism to prevent it.

    I’m not suggesting that this mechanism need be state run, its not part of the night watchman roll, but I do have difficulty in seeing how any form of spontaneous order could take on the roll.

    By this I’m not saying that animals should enjoy a similar status to people. Of course they shouldnt. There are many occasions when it is necessary to cause an animal to suffer, just so long as the degree of suffering is not disproportionate to the necessity.

    Nor am I saying any of this should be taken as implying that there is anything cruel about hunting with dogs. There isn’t. Once caught the fox dies very quickly, post mortem reports show that following the fatal wound the animal rarely has time for a final breath and reports into the stress suffered during the chase suggests that the stress the animal suffers when looking for food are greater. After all, the animal knows that if it cant catch food it will die, whereas until the last moment its experience of being chased is that it will escape.

  • Euan Gray

    They should be concentrating on making the law unenforceable

    The consequence of the rule of law is that people obey the law for as long as it is law, and accept the penalties if they choose not to. Whilst it is reasonable to say that a law which is deeply resented across a wide section of society may be successfully challenged by civil disobedience, it has to be remembered that hunters in the UK are a minority amongst those who live outside the towns and cities, who are themselves a minority of the overall population. A ban on hunting, however unnecessary or illiberal, will never attract popular support. I think the pro-hunt people recognise this.

    Civil disobedience works when a large proportion of the population fundamentally objects to a law or rule. It does not work when a minority (of a minority) of a population dislikes what the government has done.

    I should perhaps say that I have no personal objection to people hunting, but would not choose to do it myself. I consider the law to be unnecessary and motivated by class envy. On the other hand, it has broad support among the electorate, and we do live in what passes for a democracy.

    Remember the entirely democratically enacted legislation commonly called ‘The Poll Tax’?

    This illustrates my point. The poll tax was deeply unpopular all across the country, and hence a prime target for civil disobedience. Hunting isn’t the same.

    Parliament needs to be reminded of the limits of its political power

    I understand (but am open to correction) that the constitutional legal doctrine in the UK is that there are NO limits to parliamentary power. If parliament enacts a law in accordance with the rules for so doing, and if the people by and large accept that law, then it is law and everyone else needs to like it or lump it. It is not a condition of democracy that one needs to obey only the laws one personally agrees with.

    From the original post:

    There is a long history of civil disobedience to duly constituted authority in the defence of what is right

    True, but the successful cases are those where what is felt to be right is felt across broad swathes of the population.

    There is a difference between popular disobedience to an unjust and unnecessary law on the one hand, and on the other a small group of people objecting to being prohibited from doing something which, to be frank, most people find deeply objectionable.

    EG

  • mike

    “Civil disobedience works when a large proportion of the population fundamentally objects to a law or rule. It does not work when a minority (of a minority) of a population dislikes what the government has done.

    Why not? Should (organised) civil disobedience by this minority within a minority make the law unenforcable, do you really think the State would have them all rounded up and prosecuted? They may be a minority, but that’s still a lot of people to prosecute all at once. Moreover, I suspect a (silent) majority of people in Britain aren’t that bothered one way or the other about hunting, but would (let us hope) take exception to the State’s wholesale outright prosecution of a minority group of even a few hundred thousand people.

    The ‘limits’ of parliamentary power are precisely the point at which enough people refuse to obey whatever objectionable law parliament has enacted. They are de facto limits not limits in the de jure sense.

  • Pete_London

    Euan

    I consider the law to be unnecessary and motivated by class envy. On the other hand, it has broad support among the electorate, and we do live in what passes for a democracy.

    The point of a democracy is to ensure respect for the rights and wishes of a minority and absolutely NOT to simply enact the will of the majority.

    I understand (but am open to correction) that the constitutional legal doctrine in the UK is that there are NO limits to parliamentary power. If parliament enacts a law in accordance with the rules for so doing, and if the people by and large accept that law, then it is law and everyone else needs to like it or lump it. It is not a condition of democracy that one needs to obey only the laws one personally agrees with.

    Hence my contention in a previous post (nothing personal!) that you need to ‘get up off of your knees, you serf’. In practive there are no limits to Parliamentary power simply because the great majority of people in this country haven’t got it in their great, thick skulls that power in vested in we, the people. Your view, that we should like it or lump it is precisely the reason why politicians politicians are ever more arrogant, detached and in Blair’s case regal. Parliament does NOT exist to boss, hector and order people around. It exists to do what we damn well tell it to do. MPs, the police and Brown’s vast army of bureaucrats are public servants yet you can’t wait to bend the knee to do the state’s bidding. This relationship is precisely inverted from how it should and must be. Parliament may be your boss but it is not mine.

    There is a difference between popular disobedience to an unjust and unnecessary law on the one hand, and on the other a small group of people objecting to being prohibited from doing something which, to be frank, most people find deeply objectionable.

    First, most people do not find it objectionable. At best most people are ambivalent. Second, even if your contention is correct, so what? If my neighbour finds my hunting objectionable it’s none of his damn business. He can just suck it up. Again, this I don’t like what you do so I will ban it attitude is why our shyster public servant MPs constantly get away with it. Frankly a people with this attitude get everything they deserve.

  • Euan Gray

    Why not?

    Because most people are generally law abiding and unless the law being objected to is widely seen as unreasonable and unjust they tend to get pissed off with small groups of bolshie protestors disrupting things for everyone else.

    I suspect a (silent) majority of people in Britain aren’t that bothered one way or the other about hunting

    Polls do seem to consistently suggest that a majority do consider hunting to be objectionable, but it is fair to say that it is hardly a priority issue for most people.

    The ‘limits’ of parliamentary power are precisely the point at which enough people refuse to obey whatever objectionable law parliament has enacted

    True, but “enough” people are not going to do this over the issue of hunting.

    The point of a democracy is to ensure respect for the rights and wishes of a minority and absolutely NOT to simply enact the will of the majority

    Well, up to a point. If this were literally true there would be no law and no government because there could be no agreement on even basic issues – there is always a minority which will object to ANY rule or law. Of course, some libertarians would welcome this, perhaps not considering the full range of sometimes unintended consequences which flow from it.

    A democratic government does for all practical purposes have the right to enact the will of the majority. It should listen to the wishes of the minority, but in practical terms it cannot be bound by them. Listening to the minority case is as much respect as can reasonably be expected in most instances.

    It exists to do what we damn well tell it to do

    In theory this is broadly correct. In practice it doesn’t really work like that. Most people aren’t interested in politics and are content to select from the limited choices available. I understand the Conservative party has said that it would reverse the ban (maybe) – so if you don’t agree with the ban, vote Conservative. If you object more strongly to other Conservative policy than you object to the ban, vote for someone else.

    Political parties are of necessity compromises. If enough pro-hunting representatives are elected to reverse the ban it will be reversed. If not, it won’t. This is one of the compromises one has to accept. If none of the parties offer the position you support, stand yourself and make your case. In this particular case, you would be very unlikely to get elected, but you have the right to try.

    I get the impression that many libertarians don’t take part in the democratic process. I’m not suggesting you are necessarily one of them, but unless people vote they don’t really have much moral justification for complaining about what the government does. If they voted for the alternative point of view and that point of view lost the election, well they just have to accept that and try again next time.

    the great majority of people in this country haven’t got it in their great, thick skulls that power in vested in we, the people

    Just to be pedantic, it’s vested in and flows from the Crown. Acting with and by the advice of her ministers and with the advice and consent of parliament, of course.

    so what? If my neighbour finds my hunting objectionable it’s none of his damn business. He can just suck it up

    Britain doesn’t really work like that.

    EG

  • craggy_steve

    They should be concentrating on making the law unenforceable and putting in the intellectual work to get their supporters heads around the idea that just because democratic politics say they have to do something, it ain’t necessarily so.

    That much has already been done, we’ll all be out hunting quite legally after the ban comes into force (if the ban comes into force), and we’ll see how the state likes it. There are going to be a lot of very frustrated Labour MPs telling a very pissed off Police force to arrest people who haven’t commited an arrestable offence 😉

    This challenge is about removing the stupid law passed by very stupid poiticians in what is becoming an increasingly stupid and untenablesystem of their own making, partly to ensure that we don’t have to modify our behaviour to continue hunting legally, and partly to say “**** off” you prejudiced pillocks, because the krypto-facists in New Labour need to understand that is is possible for people to say no, and to say no with the only authority in the state that has the authority to overrule them.

  • Johnathan

    Precisely because of fears about maltreatment of minorities, the best liberal systems have checks and balances, Bills of Rights, etc. The American Founding Fathers knew this, and for a long time, so did those who understood how the English political order worked, such as A. V. Dicey or Lord Acton in the 19th Century. The idea that parliament could have supreme power via a temporary majority in the House of Commons was the nightmare of all our great political forbears. Their fears were abundantly justified.

  • mike

    “True, but “enough” people are not going to do this over the issue of hunting.”

    The countryside alliance had plenty of people when they marched on Parliament. It is in the first place a question of organisation and will – an act of open defiance of the ban attended by even some tens of thousands of people may – given the right circumstances – force the government to overturn the ban.

    I say ‘given the right circumstances’ because I have a nasty feeling that unless Blair and co were sufficiently distracted by bigger fish (e.g. other domestic reform issues or the situation with Iran) at the time of any such organised defiance of the ban, I wouldn’t put it past this government to use the police to arrest or otherwise subdue even such a large gathering of people.

  • Pete_London

    Euan

    Speaking of where the Crown’s powers are derived you stated:

    Just to be pedantic, it’s vested in and flows from the Crown. Acting with and by the advice of her ministers and with the advice and consent of parliament, of course.

    I don’t regard this as pedantic at all. It goes to the heart of the matter. The source of the Crown’s powers is explained simply by the Magna Carta Society:

    The sovereignty of this nation belongs to the people, and the queen, the official ‘governor’ of the nation and sovereign head of state, is the physical embodiment of the people’s sovereignty. Any attempt to reduce, usurp or suborn, the sovereign powers of the queen, powers vested in her by the people at the time of her Coronation, is an act of treason.

  • Euan Gray

    The idea that parliament could have supreme power via a temporary majority in the House of Commons

    I understand that legally Parliament (shorthand for “the Queen in Parliament”) is in fact supreme, and this supremacy does not come from any majority among its members but simply from its position at the top of the pile. Whether there is a temporary majority or not is not relevant and does not add to or detract from Parliament’s supremacy. Notwithstanding that, Parliament has to act within the law. Supremacy does not entail the right to ignore law.

    Also, the party in majority today may be the minority tomorrow. I know people who moan incessantly about the current government’s arrogance but who were quite happy to rejoice in the equally arrogant Thatcher administrations of the 1980s. What goes around comes around, as they say.

    The issue is not the exercise of supreme authority per se, but rather ensuring that this is done within the law.

    The source of the Crown’s powers is explained simply by the Magna Carta Society

    This is one explanation. It is not the only one.

    I think it is somewhat misleading to suggest that the person of the Crown derives her powers by grant from the people. It is perhaps more accurate to say that the Crown exercises its power as it sees fit BUT it does so on the sufferance of the people, or at least their representatives in Parliament. This is not quite the same thing.

    I personally do not accept that the people of Britain are the holders of sovereign lawful authority. Our history is littered with struggles between nobles and king, between nobles and other nobles, between king and parliament, between military government and parliament, and so on, & basically whoever was strongest won. The “people” don’t come into it to any great extent except when they get so pissed off they just won’t accept some particular thing.

    Again, the important issue is not the origin of the power, but making sure that it is exercised responsibly within the rule of law.

    EG

  • Kristopher Barrett

    Your post is a tiny bit untenable on two points, the first of which is, the farmer doesn’t “own” the fox. It’s a free agent roaming over land which may be owned by several different people or families. So the fox isn’t the farmer’s possession.

    Second, although I think the RSPCA has gone the way of the International Red Cross and other originally well thought of organisations which have been overtaken by expansionist and controlling ambitions, we have laws against cruelty to animals in Britain – and throughout the Anglosphere. Even if I owned a dog, I would not be free to beat it, starve it, neglect it or torture it.

    So if it is a wild animal on his property, he doesn’t own it? How about wild plants? Annoying insects?

    Surrendering ownership of wildlife on private property is a mistake that people in most States make, unfortunately.

    And I pretty much expected someone to pop up with the “kitten torturor” strawman. When you put the State in charge of deciding what constitututes animal abuse, you have ultimately given up ownership of your chattal property.

    What is considered normal use today may be considered “torture” tomorrow by some animal-rights wacko who gets elected.

    Ostracism and boycott are powerful tools for dealing with those who do evil things. Don’t sell them short.

  • Johnathan Pearce

    Euan, you talk about parliament operating within the law. That is a joke. The whole danger of parliamentary sovereignty as understood by Blair and his thugs is that they pay no heed at all to the idea of acting within the law. Blair’s evisceration of the Lords, for example, is a good example of his contempt for the traditional checks and balances necessary to the constitution.

    Some folk may naively imagine that European law acts as a sort of constraint, but I doubt that the sort of assaults on liberty going on in this country will be seriously checked by reference via this route.

    We need to rebuild the independence and strength of the Lords, seriously do the same for the judiciary, and of course cut government down to size and reduce the amount of secondary legislation through which all manner of laws get passed with no parliamentary debate whatsoever.

    rgds

  • mike

    “We need to rebuild the independence and strength of the Lords, seriously do the same for the judiciary, and of course cut government down to size and reduce the amount of secondary legislation through which all manner of laws get passed with no parliamentary debate whatsoever.”

    Please forgive my lack of imagination Jonathan, but how would you suggest ‘we’ attempt to do this? I agree with your remidy I just cannot see the delivery. The tories are in a shambolic, unelectable state (without even considering their [un]trustworthiness) and Blair owns the majority of MPs. Some sort of popular civic campaign is a theoretical possibility – but as I’m sure we all know libertarianism is not exactly the most popular political taste there is.

  • Verity

    Pete_London, thanks for that!

    Jonathan Pearce – Yaaaayyyyyyyy!

    The loss of the Lords has not been given the loss of gravity it deserves. The British press was vastly, and gruesomely entertained when the Chinese took over Hong Kong and employed their placemen to monitor its government. When the same thing happened in Britain, they were been curiously mute. Blair has eviscerated British democracy and no one seems to take much interest – except those confident families who are leaving Britain in droves.

    Yet Mike is correct to ask you, Jonathan: How?

  • Johnathan

    Verity and Mike, I am afraid I don’t have a magic button to press which will bring all these wonderful things about. (Trust me, I am still looking). I am talking about what needs to happen IMHO. So maybe Perry’s original point about civil disobedience holds after all, for all that this seems rather troubling to the establishment-minded Mr Euan Gray!

    In the meantime, all I can honestly do is keep plugging away and sowing as many libertarian memes as possible. Which goes for all of us on this blog and further afield, I presume.

  • Euan Gray

    So maybe Perry’s original point about civil disobedience holds after all, for all that this seems rather troubling to the establishment-minded Mr Euan Gray!

    I don’t find it troubling in the least. If people want to protest, let them protest. If enough protest, change the law. Free speech and the right to protest shouldn’t be unduly restricted, even by a dictator – it’s a handy guide to what people really feel.

    My point is that on this specific issue civil disobedience is not going to get anywhere because the overwhelming majority of the population do not support (or don’t care about) the issue. Legal challenge is fine, but in this case civil disobedience will only make the pro-hunt lobby look like a bunch of spoiled children whose toys have been taken away.

    However, as for your ideas of what needs to happen in general, I would pretty much agree. We need a strong second chamber (I propose an elected Senate) and a strong judicial check on the government (a supreme court is a good idea in principle, provided politically motivated appointments are avoided).

    I would also suggest:

    term limits (to avoid the professional politician);

    a prohibition on legal practitioners holding elected office (to avoid the temptation to legislate on anything and everything);

    compulsory voting (to reinforce the importance of the democratic process);

    a process whereby constituents can impeach their representative;

    a process (similar to that in California) whereby law can be proposed by petition and then voted on by referendum, and;

    an automatic sunset clause on all legislation (making sure temporary measures don’t become permanent and also taking up enough of the MPs’ time to stop them fiddling about with other things).

    EG

  • derek

    On hunting, I rather boringly follow Wilde’s dictum about the unspeakable being in full pursuit of the uneatable. However to hide behind our soi-disant ‘Parliamentary Democracy’ as a justification for a ban is a bit rich. We don’t have a democracy. We elect every government with about a third of the falling number of votes cast. MPs are not representative of society as a whole, they are drawn form that ever-decreasing number of paid-up members of political parties. So, while I don’t personally wish to hunt, or see its results, I wish the country lobby the best of luck in sticking it to the present shower of careerist chancers right where the sun don’t shine!

  • mike

    Well, seeing as how we’re making wish lists let me state my agreement with Euan’s items (except the elected Senate) and add something perhaps a little more fantastic…

    Let us abolish the political parties and replace the Commons with a committee of perhaps 12-15 elected MPs chosen at random from the nation’s constitutencies to serve short fixed terms in voting for or against government bills.

    Let us stuff the Lords full of technical experts on the various areas of government competency (unelected – because that way you just replicate electioneering parties, but instead chosen by the Crown (I do not mean the PM) from the various fields of industry).

    Let government bills (once drafted by gov depts or individual MPs) be sent first to the Lords for immediate revision (by our technical experts) with the option of their being returned for redrafting. Once the revision of bills is completed, let specific members of the Lords act as advocates in presenting the newly drafted and revised bill to the ‘Commons’ committee of 12-15 elected MPs – one Lords advocate to speak for the bill, and one against.

    Let the fate of the bill be decided by majority vote from among that committee of elected yet randomly selected MPs.

    This system would still be democratic, but would result in a lot better government lawmaking (if not necessarily less government). The system we have now as we all know is ridiculous with huge party majorities and a Lords stuffed with Tony’s Cronies rather than proper critically minded individuals.

    It’s sort of depressing to be reduced to listing fantasy wish-lists, but maybe there’s something to be said for meme-spreading (I hate that idea – memes – by the way).

  • Euan Gray apperars to think that radically increasing the politicisation of society will magically assist in preserving our liberties. He has it exactly backwards. The vast majority of people have no interest in politics, having much better things to do with their time. Euan’s proposals would make an open door for power grabs, intrigues and petty vendettas by opportunist hacks which would see what remains of our liberties flushed away even more rapidly.

    Perry is quite right to point out that democracy is in fact in opposition to liberty and that the problem is an excess of politicisation in society, Euan thinks that the cure is yet more politics and that we should be compelled to take part in it and respect it. He is exactly wrong.

  • Euan Gray

    Perhaps to develop ideas a little further on the road of a truer democracy:

    The more democracy you have, the worse your government gets (because libertarians insist their views are respected, as do communists, Nazis, socialists, conservatives, etc). If, then, you want to have lots of democracy, you need to minimise the power of those elected, but at the same time ensure the government is not actively against the basic wishes of most of the people.

    Perhaps we could have an executive head of government elected on his own for a single six year term. The Queen would remain as the ultimate constitutional guarantee in the position of a non-political head of state and commander-in-chief, as she is now.

    Parliament could be elected on a proportional representation basis, but with no members being part of the executive & the head of government with a veto on legislation. Thus you have oodles of lovely democracy, but no risk of insane minority demands being enacted into law. Or, you could say that all laws must be approved by referendum – this would minimise the amount of law, since even the keenest politician would be wary of seeking a public mandate every couple of weeks – especially if you couple this with mandatory voting. Democratic, no doubt, but also leaving the state a free-ish hand to do what needs to be done.

    We might also want to remove parliament’s power to hold the state to ransom by refusing to pass a budget. This could be done by saying that provided the state did not wish to spend more than say 10% of GDP (enough to meet military and basic public health/welfare needs) it would not need parliamentary approval. Or perhaps that if no changes were proposed over the previous budget, it could not be opposed.

    To improve democracy at a local level, political parties should be banned from organising here. This sounds anti-democratic, but it’s not. Parties have only been allowed to organise at a local level since 1946 or 47, IIRC. Anyone should be able to stand, but only for a single one-year unpaid term. This would reduce the incidence of professional politics, and prevent the appearance of such things as the socialist mafia which has run west Scottish local government for decades – and which leads to inevitable corruption and cronyism. All local government income should be raised at a local level, thus bringing home to the people just how expensive it can be.

    None of this will ever happen, of course. Now, returning to reality:

    The problem with Mike’s suggestion is that is even more open to abuse than our current one. An upper house appointed by the Crown in fact as well as in theory would bring the Crown into politics and prevent its credible use as an ultimate constitutional deterrent. It would also in practice mean that the government dictates with even less scrutiny the form of legislation – perhaps not theoretically, in reality this would happen. In short order, we should have a republic, and an overtly political head of state – not an improvement, I fear.

    Much is made of the size of the Labour majority. It may be before Mike’s time, but I voted for Thatcher in the 1980s (both times) and I can well recall the complaints coming from the left that something had to be done to stop such oppressive majorities dominating the nation – it was a factor in rising Liberal/SDP support. But then in 1992 we had a government with a very small majority and the comments stop. In 2005, we may well have a Labour government with a small majority, and the comments will doubtless stop again. You really need to look at these things over a period of decades, not the past few years.

    EG

  • mike

    Paul Coulam: exactly, hence my favouring of the abolition of parties, a Lords selected by the Crown, and the replacement of the Commons with a jury of a handful of randomly selected (but still elected) MPs to vote on proposed legislation.

  • Euan Gray

    Euan Gray apperars to think that radically increasing the politicisation of society

    Crap.

    Compulsory voting is practised in Australia, Italy and more than a dozen other states. Amazingly enough, there has been no radically increased politicisation of those societies and even yet the sky has failed to fall in.

    Euan’s proposals would make an open door for power grabs, intrigues and petty vendettas by opportunist hacks

    True. This happens all the time in dictatorial Australia. What a lesson to us all, eh?

    Euan thinks that the cure is yet more politics

    I fail to see how trying to eliminate the professional politician and limiting the ability of parliament to pass pointless and unnecessary legislation is somehow “more politics.”

    I would also point out that Switzerland, frequently praised on this blog for a variety of reasons, is even more “politicised” than I propose, and has been for centuries. That sky hasn’t fallen in either. Funny, eh?

    He is exactly wrong

    Au contraire, matey. The evidence from other countries would tend to suggest that the sort of things I have proposed actually work.

    What is your proposal, rather than your snide comments, where has it been tried before and what justification is there that it would actually work?

    EG

  • mike

    Euan: I read Paul Coulam’s comment as referencing your call for an elected Senate, not the compulsory vote. An elected Senate staffed by a couple of hundred professional politicians would certainly be more politics.

    As for your rebuttal of the notion of the Crown appointing technical experts to the Lords – you fail to think about what I’m saying. Under the system suggested in my earlier post, the members of the Lords would not vote, merely make revisory recommendations for proposed legislation and then advocate for or against a bill to the Commons jury committee who would then cast the deciding votes. This system avoids the politicisation of the Lords (unlike your elected Senate), and so there can be little substantive political advantage to ensuring one chap or the other gets into the Lords.

  • Euan Gray

    An elected Senate staffed by a couple of hundred professional politicians would certainly be more politics

    You did read the bit about term limits, though? The idea there is to prevent the rise of the profesisonal politician, not create more of them. How are you going to get a couple of hundred professional politicians if they can’t serve more than say two three year terms?

    I understand your clarification about the revised Lords. Even so, direct formal Crown appointees into the political system – even if they only advise and don’t vote – still drags the Crown into politics. Insofar as it goes, this function of the Lords is already carried out by the civil service. Your key difference, if I understand you correctly, is that this would now be done in public rather than in private.

    But what happens if the revising advice of the Lords is controversial – and it is bound to be at some point or another. In that case either the advice prevails and essentially law is made by Crown appointees, or it is rejected and the Lords is irrelevant. ISTM that two wholly elected chambers, one with a veto over the other and elected on a different basis, is a more practical and less controversial idea.

    Funnily enough, I did have the idea recently for a 100-member elected Senate into which the head of government (not the Queen) might at his discretion appoint up to 10 non-voting nominees to put the state’s position to the house. However, that idea was in the context of a PR-elected (and neutered) Commons in which the Senate would have considerable power and the Commons would be more of a debating chamber than a legislative assembly.

    In general on the upper house, there is a problem if its members are appointed. The problem arises in who does the appointing and on what basis. If the government does it, then the government is simply reinforcing its Commons position and reducing the scope for sensible revision. If the Crown does it, then the Queen is dragged into politics, which doesn’t help anyone. I suppose there are several ways around it.

    One of my ideas was a 300 strong Commons elected by PR and a 100 strong Senate elected by FPTP, one Senator to each three Commons seats. Ideally, you want the houses of different opinions – having a PR Commons would virtually guarantee this since they’d be unable to agree on pretty much anything.

    I also don’t approve of general elections, which I have said here before. They *do* lead to the politicisation of society. However, if we had individual members on term limits and being re-elected as their limits expire, we would have more of a focus on local issues. If at the same time the head of government is elected for a single six year term by national vote and an electoral college (I thought one college vote per Senate seat, ties decided by Senate vote), and his cabinet is selected from outside parliament, we could ensure effective government *and* comprehensive representation of public opinion on virtually all issues (not that this opinion should necessarily be heeded, of course).

    Essentially, I think a good starting point is the US constitution (but with a series of modifications in the light of 200 years experience) mixed with the more flexible and adaptable British constitutional arrangements.

    EG

  • mike

    Euan: first of all apologies – I did not read the whole of your comment (I’m trying to work on something else at the same time) but I appreciate your sentiment on the socialist mafia here in Scotland (and here in Edinburgh of course).

    “Even so, direct formal Crown appointees into the political system – even if they only advise and don’t vote – still drags the Crown into politics.”

    Hardly at all, and in any case so what?

    “Insofar as it goes, this function of the Lords is already carried out by the civil service. Your key difference, if I understand you correctly, is that this would now be done in public rather than in private.”

    Yes and I think it a substantial point pertaining to transparent government.

    “But what happens if the revising advice of the Lords is controversial – and it is bound to be at some point or another. In that case either the advice prevails and essentially law is made by Crown appointees, or it is rejected and the Lords is irrelevant.

    In that case yes, law would be ‘made’ (partly – do not forget the gov depts and ministers) by Crown appointees, although it can only be passed or rejected by a jury of democratically elected MPs randomly selected to avoid partisan dominance. If the advice of the revising Lords is rejected by the government, this point can be used by the advocate Lord in speaking against the bill before the jury of elected MPs. You seem to think the point of the Lords is to provide a restraint on the power of the government – in this system however, the jury of MPs is itself an effective restraint on the power of the government since they only serve short fixed terms, are selected at random and so cannot be subjected to bullying from the government. This constraining function then is not required of the Lords and so it does not make sense to speak of the Lords being ‘irrelevant’. In this system the Lords is purely a revising chamber, since effectively all legislative power is tied up with the jury committee of MPs – a committee which is entirely insulated from the dead hand of government or special interest influence (secret ballots so no-one knows which way individual MPs voted).

    “If, then, you want to have lots of democracy, you need to minimise the power of those elected, but at the same time ensure the government is not actively against the basic wishes of most of the people.”

    No we do not want lots of democracy. We also do not want the government to be actively for the wishes of most of the people (as inevitably) perceived by the government. What we want is government which is both smaller and better – sort of like the VW Polo in the ad Perry links to in his new article.

    I do agree with you on having the executive elected on a different basis to the members of the legislative mechanism – whether the current Commons or a jury committee. Yet I suspect you might like the system I’ve suggested the more you think about it…

  • No we do not want lots of democracy. We also do not want the government to be actively for the wishes of most of the people (as inevitably) perceived by the government. What we want is government which is both smaller and better

    I agree entirely though I would put the full stop after the word smaller. The trouble with Euan is that he hasn’t the faintest idea what he is trying to achieve. He goes on and on about democracy as though it were a good in itself rather than one of the least bad political systems, and he is utterly unable to understand that democracy is in destructive tension with liberty.

    Euan would do better if he stopped all this convoluted constitutional fantasising and dreaming up ways to force people to get involved in politics. What is needed is to get people out of politics and into doing things that are creative and productive in their own right.

    Forcing more people into politics will do nothing to escape the ‘iron law of oligarchy’ but will divert people’s creative energy away from enterprise and waste it in the dead end of democracy.

  • Euan Gray

    Hardly at all, and in any case so what?

    The value of the Crown in the British constitutional system is that whilst the office of the Crown does have real power, the person of the Crown does not directly exercise political power. The Queen is “above politics,” as it were. Because the Queen doesn’t routinely interfere in politics, when she *does* make her feelings known it is recognised that this is serious and she is listened to.

    If the Queen appoints on her own initiative members of a reformed Lords who will, eventually, need to make a controversial decision, it makes it much more difficult for her to resolve any deadlock with any degree of authority. Right now, people would accept her decision because she doesn’t have routine political role – if that changed, people would be less ready to accept her resolution.

    As for the Lords as a revising chamber, would not my proposed Senate (with a veto over Commons legislation) meet the same need? The Senate could reject proposed legislation and return it, amended, to the Commons for reconsideration.

    You seem to think the point of the Lords is to provide a restraint on the power of the government

    I think everything needs to be balanced. The will of the people needs to be balanced by what is practical and sensible – and in the case of welfare, what won’t bankrupt the nation. The executive authority of the state needs to be balanced by compulsion to operate within the law, and so on.

    No we do not want lots of democracy

    But it’s a lot easier to carry the people with you if you persuade them their opinion is heard and considered. Democracy is a good way of doing this, but it needs to be limited and in some respects neutered. So, to that end you need at least the plausible appearance of lots of democracy. Having two elected chambers and a non-political monarch will do this. Having random juries of MPs, unelected revising chambers and a political Queen will not, I’m afraid.

    What we want is government which is both smaller and better

    Well, you won’t find any argument from me on that score. But, you need the government to work and to be broadly acceptable to the people. To this end you need to make some pragmatic readjustments and compromises, and you must accept some degree of democratic control. This does not ncecessarily mean full-blown vote-yourself-largesse democracy, but you’ve got to have something.

    EG

  • mike

    “If the Queen appoints on her own initiative members of a reformed Lords who will, eventually, need to make a controversial decision…”

    As I have already said, the revising Lords will not be making any decisions – legislative decisions that is just to be clear. Responsibility for legislative decision making would rest with the jury of randomly selected MPs. There would be no such thing as a political Queen in this system.

    “As for the Lords as a revising chamber, would not my proposed Senate (with a veto over Commons legislation) meet the same need? The Senate could reject proposed legislation and return it, amended, to the Commons for reconsideration.”

    Possibly, but (and I do take your point about fixed terms) your Senate being elected (on what else but a political mandate?) would be less suitable to the job of rational and superbly informed scrutiny of bills than my appointed chamber of technical experts in the relevant fields.

    “The will of the people needs to be…”

    The ‘will of the people’ is a collectivist notion which has no place (or at best a tiny hiding hole somewhere) in a society premised on the liberty of the individual. Sorry to answer you from the textbook like that, but…

    “But it’s a lot easier to carry the people with you if you persuade them their opinion is heard and considered. Democracy is a good way of doing this, but it needs to be limited and in some respects neutered. So, to that end you need at least the plausible appearance of lots of democracy.”

    Oh, excuse me, I was under the impression we were idly exchanging speculative thoughts on an ideal constitutional architecture, not actually considering ways to bring it about. In that case, you can increase the list of requirements for ‘carrying the people with you’ as long as your arm. No, I’d stick with the Tom Paine method and write a little common sense pamphlet when the time is right.

    “Euan would do better if he stopped all this convoluted constitutional fantasising and dreaming up ways to force people to get involved in politics. What is needed is to get people out of politics and into doing things that are creative and productive in their own right….Forcing more people into politics will do nothing to escape the ‘iron law of oligarchy’ but will divert people’s creative energy away from enterprise and waste it in the dead end of democracy.”

    Yes, I’m starting to feel drained of energy myself…!

  • Euan Gray

    There would be no such thing as a political Queen in this system.

    In theory perhaps not. In practice it would happen.

    less suitable to the job of rational and superbly informed scrutiny of bills than my appointed chamber of technical experts

    Yes. Government by experts & technocrats. Again, not perhaps quite what your theory would say, but how it would end up in reality. This is pretty much the same justification for heavy regulation of life which came about since the 1940s – “the man in Whitehall really does know best” was the actual phrase used. In the case of your theory, would it not be that “the technical expert in the Lords really does know better?”

    a society premised on the liberty of the individual

    But as you can’t have absolute individual liberty, so you need to take cognisance of the wishes of other people. This extends to government as well as to private life.

    I was under the impression we were idly exchanging speculative thoughts on an ideal constitutional architecture

    So was I. And we want our ideal constitutional architecture to last, so we need to take reasonable steps to prevent it being overthrown. Some pragmatic concessions and an acceptance that at least some of degree of popular consent would be required are both necessary to achieve this.

    Sorry to answer you from the textbook like that

    This is the problem I have with libertarianism. And Marxism, come to that. If you look at the textbooks, it is neat, elegant and wonderfully efficient. Unfortunately, both overlook the reality of human nature.

    Textbooks do not contain the answers to political problems. Soviet Russia was an example of what can happen when you seek textbook answers to real-life political problems.

    EG

  • mike

    “Yes. Government by experts & technocrats. Again, not perhaps quite what your theory would say, but how it would end up in reality. This is pretty much the same justification for heavy regulation of life which came about since the 1940s – “the man in Whitehall really does know best” was the actual phrase used. In the case of your theory, would it not be that “the technical expert in the Lords really does know better?”

    Not quite Euan. The issue of how far government legislation creeps across economic and civil liberties is a general issue that pertains also to your elected Senate. Despite even a bill of rights or some other codified constitutional elements, I cannot see how there will ever be any constitutional guarantee as to the maintance of a small State, and so I do not consider that a valid criticism of my revising / advocating Lords.

    As I see it however, an appointed chamber of experts to revise and advocate for and against proposed legislation, together with a randomly selected jury of 10 or so democratically elected MPs who then vote on legislation has a number of advantages, not the least of which is severing the political tentacles of the executive before they can strangle the legislative process. Once the executive is no longer in a position to exert power over this process, the less business it can get through Parliament, the more likely we are to see substantially fewer and more carefully drafted bills in future. This is no guarantee against Big Gov I admit, but it is a step in the right direction. Your elected Senate (with a veto over the Commons) also shares this plus point, but I am less comfortable with the second chamber being elected (despite your fixed term assurance) in addition to the members of the executive, than I am with them being appointed on technical merit and denied any actual legislative power.