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Samizdata quote of the day

The reason John Bercow doesn’t deserve to be honoured isn’t because he picked the wrong side. It’s because he picked a side.

Toby Young

Bercow is the recently removed Speaker of the House of Commons. The Speaker is supposed to be a referee, not a player. Bercow says there’s a conspiracy to keep him out of the House of Lords. I hope that there is, and that it succeeds.

29 comments to Samizdata quote of the day

  • Lee Moore

    I have mixed feelings about this.

    The HoL needs to be reformed, preferably to give it some real powers to block (a) constitutional and electoral jiggery pokery and (b) offences against liberty. And accordingly it needs to be elected. My preference would be some kind of PR, with voters getting a vote at 35. And not before. Maybe 200 members tops. But whatever, pick your preferred poison.

    The important bit, for today, is that none of today’s Lords would be allowed in – unless they could get the votes. So the question is – is it better to usher all the Hammonds and Grieves and Bercows into the HoL, just for the pleasure of then being able to tell them – now go forth and multiply ? Or is it better to start with go forth and multiply and not give them a seat in the HoL even for a week ?

    I’m leaning towards the latter.

  • Nico

    @Lee Moore: How can a reformed HoL defend liberty if that is not its remit, and how can it be its remit if you don’t have a written constitution?

    I’m not saying a written constitution is sufficient, but if the UK Bercow/Supreme Court/Brexit vs U.S. Impeachment debacles have taught us anything, it’s that a small, well-designed constitution with an emphasis on procedure is much easier to adhere to than an unwritten constitution that no one knows precisely what is in.

  • Aetius

    The House of Lords is incapable of defending liberty, because we do not have a culture of liberty in the UK at the moment.

    If you want to see the dross who would be elected to a reformed upper house, look around the House of Commons and the devolved legislatures.

    All that would happen would be another layer of progressives imbedded so as to prevent any kind of libertarian and / or conservative reform. At the moment, the House of Lords ultimately has to yield to the elected House of Commons; an elected chamber just would not do so.

    Furthermore, there is absolutely no point in a written constitution when it would be written by the progressives. It would not really matter whether the drafters came from the judiciary, the universities, the House of Commons or wherever; all our institutions are rancid with progressives.

  • Snorri Godhi

    Furthermore, there is absolutely no point in a written constitution when it would be written by the progressives. It would not really matter whether the drafters came from the judiciary, the universities, the House of Commons or wherever; all our institutions are rancid with progressives.

    I was tempted to write down what i think might be effective reforms of the House of Lords; but i won’t, because it would distract from the truth expressed by Aetius.

  • Mr Ed

    A member of the House of Lords represents no one but him- or herself, except the elected hereditary peers. It seems to me that the vestigial justification for the House of Lords is the theory that the House of Lords is a potential brake on tyranny as it can prevent a House of Commons from perpetuating itself without the requirement for a General Election every 5 years. The Lords’ right to veto legislation to that effect was preserved in the Parliament Act 1911.

    Recently, we had mutterings that the Lords might block i.e. delay legislation enabling ‘Brexit’, making the House potentially a ‘lock’ on tyranny. They backed down after some token, futile gestures.

    It seems perfectly clear to me that the simple way to remove the Lords is to transfer the 1911 veto power to the Sovereign as an express power, and save us a few quid on a chamber which still has English Bishops bashing away as legislators, despite the triumph of disestablishmentarianism in Wales, the supposed freedom of Presbyterian Scotland under the Acts of Union 1706, Northern Ireland and devolution. Funny how Labour, eager to remove the hereditary peers, (and compromising) thought nothing of removing Church of England bishops.

    If we are to keep it, one reform might be to have a 5-year gap between being entitled to membership of it after being an MP, so that the simple device of putting a failed politician who’s lost his or her seat in the Commons into the Lords is not available. Another might be no one with any public sector employment or pension being entitled to membership, and perhaps a simple lottery of, say 10 random but not criminal, insane or public sector voters per county from the electoral register being entitled to 5-year terms to get a random cross-section of the public in.

  • Toby Young hits the nail on the head. While it would be an additional wrong to give Bercow a position where he could keep meddling, the reason he deserves punishment, not honour, is his betrayal of the speaker’s role.

    However, a punishment Bercow is too thick to realise he himself earned is that he surely deserves to be added to The Spectator’s list of unintentional Brexit heroes (h/t Guido). 🙂

  • Nullius in Verba

    “It seems to me that the vestigial justification for the House of Lords is the theory that the House of Lords is a potential brake on tyranny as it can prevent a House of Commons from perpetuating itself without the requirement for a General Election every 5 years.”

    The original purpose of the House of Lords was to represent the interests of the Establishment, the great powers of the land, the aristocracy and the Church. The idea was that it was all very well having decisions being made by the people, but if those decisions came into conflict with the interests of the powerful, the powerful had all sorts of ways to fight back. So the idea of giving them a role in forming the laws was to prevent such a damaging conflict arising.

    Since then, both aristocracy and Church have lost most of their power, and most of the back-room power-brokers have moved to take more control of the Commons, so the original purpose is now defunct. However, a popular constitutional theory is that the role of the Lords is now to act as a check on the tyranny of the majority.

    There are sometimes social fashions that lead to a government with tyrannical leanings getting voted in. (Communists, for example.) They’re popular with the people, but as I’m sure we all know, sometimes the people themselves make bad, illiberal, dangerous choices. So the entire point of the Lords is that they’re *not* elected. They can’t be taken over by a populist movement. So they can stand as a group of sensible and seasoned heads that can hold the Commons to account, and are not vulnerable to being voted out if that happens to be unpopular with the electorate. At the same time, they need to use that power wisely and sparingly – they should only block the Commons and the will of the people when it really *needs* to be blocked.

    As we know, that power to block the Commons has already been taken away. But I think it still should have a role. It may be that the Monarchy is a sufficient check against a popular tyranny – although I don’t think in practice it’s safe to assume.

    Some possibilities are to appoint members by random lottery, or to appoint people who have demonstrated their moral character by acts of personal bravery or achievement, or perhaps we should even go back to the original purpose and have the powerful/influential of today simply buy their way in.

    The point is, they need to be people who can’t be ‘bought’, or disposed of, by popularity or by any other means, who will take their duty as a safeguard against popular tyranny seriously. I agree the current system is not very good and needs reform, and I think it’s a very difficult goal to achieve. But essentially, we need something like the way a jury of our peers is selected for the courts, with the power of jury nullification, as a safeguard on the judges and lawyers and policemen (who need watching).

  • Lee Moore

    Nico : How can a reformed HoL defend liberty if that is not its remit, and how can it be its remit if you don’t have a written constitution?

    Well, I think legal folk would argue that the UK Constitution is (mostly) written down – it’s just not written down in one place. It’s scattered about in various different statutes. For example, having watched the “Supreme Court”‘s performance in re prorogation, Boris plans to enact a statute that says “the bums got it wrong, it’s like this.’ That will form part of the Constitution.

    I don’t object to an effort to codify some of the unwritten bits into statute, not least because of…the Supreme Court’s performance on prorogation – ie I don’t trust ’em.

    Anyway returning to the HoL, I was mostly intending to make a joke, so I don’t come fully armed to defend my half baked reform proposal. But the answer to your question “How can a reformed HoL defend liberty if that is not its remit” is obviously to make it its remit, by specifying its powers accordingly. In other words you have to go to a lot of trouble to define precisely what sort of Bill infringes the liberty of the subject. Then you have to give the HoL the power to block such Bills, or to delay them for a goodly period – say 5-10 years.

    What we would not have though, given Bercow’s performance with the Queen’s Consent is any nonsense about the Speaker ruling that a Bill does or does not pass the threshold for triggering Lords blocking power. Instead the Bill itself would be allowed to say “Nothing in ths Act shall be interpreted as meeting the condition for triggering the Lords blocking power.” If that clause was in, then the Lords could not block and the courts would be obliged to interpret the Bill accordingly. If it wasn’t in the Bill, then if “passed” over a Lords veto, the “Act” would be void if the courts found that it infringed the Lords veto power. This would discourage the Commons from trying it on.

    The definition of liberty, I think, would have to be something along the lines of “any Bill which imposes a restriction or an obligation on any individual.” Properly dusted up by the lawyers, this would mean that a Bill to make hang-gliding illegal would be blockable by the Lords. but a Bill to repeal an existing ban on hang gliding would not be blockable by the Lords. Thus you have a sort of embedded ratchet. The Lords extra power can, if exercised, block new nasties; but it can’t block the removal of old nasties.

    It would also mean that clever lawyers could not embed a nasty in an otherwise innocuous Bill. ie a Bill which was 200 pages of stuff about government grants for wetlands, could not sneak in a clause making it an offence to “misgender” someone. That clause would make the whole Bill vetoable.

  • Fraser Orr

    Nullius in Verba
    Some possibilities are to appoint members by random lottery, or to appoint people who have demonstrated their moral character by acts of personal bravery or achievement, or perhaps we should even go back to the original purpose and have the powerful/influential of today simply buy their way in.

    I think this is interesting. I have often said, probably in these parts, that corruption is a necessary part of democracy. The idea of democracy, one person, one vote, means that the people at the bottom have, in theory, more cumulative power than the people at the top. But that is exceedingly dangerous sine it often leads to “soak the rich”, which is another way of saying “destroy the accumulation of capital and investment in the future, destroy all job growth and all infrastructure and so destroy the jobs of the masses too.” There have been various counteractions to this over the years. For example, bread and circuses, powerful religion is often also used to keep the masses in check. But in modern days it is mostly through the use of money in the electoral process to allow the rich to have some control over the legislature and executive. The people might demand that you give them lots of free stuff, but to have the power to give out the free stuff you have to get elected, and you need private money to do that. And so, in a sense, through the corruption of influence buying, a sense of equilibrium is found.

    But perhaps buying a seat in the House of Lords (or in Blagojevich’s bargain basement sale of senate seats) you might make explicit that which is true but hidden.

    On the other hand, part of the equilibrium balance mentioned about requires a sense of plausible deniability, a big gaslighting operation to pretend it doesn’t actually work that way.

  • Lee Moore

    The original purpose of the House of Lords was to represent the interests of the Establishment, the great powers of the land, the aristocracy and the Church.

    Or we could go further back and note that the feudal baronage derived its station from the duty to provide the King with troops. And combine this notion with :

    or to appoint people who have demonstrated their moral character by acts of personal bravery

    allowing us to arrive at a simple answer.

    While it may be desirable, the House of Lords having a role in legislation, for various low, scurrying creatures like lawyers to have a few places in the Lords, their role should be limited to advice-by-speech. Any actual voting should be left to Lords who occupy the confluence of the two sources noted above, ie those who have performed military duty.

    So hereditary or life, if you’re a Lord, you get to vote in the Lords if you have served in the armed forces for, say, at least five years, in a non non-combatant capacity.

    That’ll cheer the Guardian up 🙂

  • John

    Lee.

    The requirement to have served in a non non-combatant capacity would bring us broadly into line with the citizenship and franchisement qualifications set out in the novel and film Starship Troopers. An interesting idea.

  • Lee Moore

    There is nothing new under the sun.

  • Marius

    How about this? 300 members of the upper house.

    50 – chosen at random from the actual gentry, the 800-odd lords and ladies. Heritage peers.
    100 – chosen at random from the current life peers, government of the day to appoint replacements
    100 – chosen at random from qualifying citizens who hit the required number of points, with points scored for academic performance, military service, volunteering, years of work experience etc and points removed for criminal record, being a lawyer etc
    50 – sold to the highest bidder. Make the House self-funding.

    20 year maximum term for each peer, staggered initially to avoid disruption in later years.

  • bobby b

    Seems as if Samizdata is coming around to Shlomo Maistre’s hereditary monarchy.

  • I rather like Lee Moore’s “voters getting a vote at 35” for the House of Lords. Perhaps candidates should also be 35+. That would lead to a “House of Elders” rather than a House of Lords, but at least they would be more able to say “I’ve seen this before, and it did/didn’t work out” while debating.

    Somebody (I think it was John W. Campbell) once suggested a House whose only power was to repeal laws. That could be done by a House of Elders.

  • Matthew

    Why not limit it to 150 members who sit for life? When one dies, the seat is auctioned off to the highest bidder, who gets to vote in a largely meaningless legislative body, gets a title, and is allowed to wear funny garments on state occasions.

    Revenue enhancement by soaking the rich in a non-coercive way.

  • Nico

    Indeed, no institution in the UK can defend liberty because the people of the UK do not value liberty. Sad.

    Mind you, the same might be true of the U.S., but we were lucky enough to be blessed with a written constitution at a time when the people of the U.S. were more committed to protecting liberty. And that constitution does two things: it makes it really difficult (proceduraly) for government to cross certain lines, and it lists limits on government beyond procedural ones.

    I wonder… can the U.S. export this? Could we replace NATO, say, with a new treaty organization that commits its members to supporting freedom of speech and association, for example? That would give liberty-appreciating governments in signatory countries a good excuse to allow freedom of speech even when it isn’t broadly popular.

  • bobby b

    “I wonder… can the U.S. export this?”

    I think that time has passed.

    We have a succinct document defining and limiting governmental power, leaving all else in the people’s hands. Its power is derived from its simplicity and focus. Its enduring charm and stability are derived through the super-majoritarian requirements for changing it.

    Anything that would be crafted today would end up as a comprehensive listing of positive rights. It would be, not a foundational document, but a massive collection of anything that could be imagined and passed into a majority-proof super-legislation. Whoever was in charge of government at the time of its drafting and adoption would have controlled everything governmental and legal for a very very long time. (See the South African Constitution in its near-200-page glory.)

    I wouldn’t try, no matter who was in charge, because such a document would be doomed to failure. We’re better off leaving all such new law to the various legislative processes, so that it can be easily overturned by the next legislature.

  • Snorri Godhi

    OK, I wrote above that i do not trust radical constitutional reform to be an improvement. (Following Lord Salisbury’s maxim that “Whatever happens will be for the worse, and therefore it is in our interest that as little should happen as possible.”)

    Still, there are some ideas in the comments above that i think are worth discussing.

    Let’s start with Fraser Orr:

    The idea of democracy, one person, one vote, means that the people at the bottom have, in theory, more cumulative power than the people at the top. But that is exceedingly dangerous sine it often leads to “soak the rich”, which is another way of saying “destroy the accumulation of capital and investment in the future […]”

    Fraser goes on to say that

    The people might demand that you give them lots of free stuff, but to have the power to give out the free stuff you have to get elected, and you need private money to do that. And so, in a sense, through the corruption of influence buying, a sense of equilibrium is found.

    But that is to ignore the middle class, and even the working class! Nowadays, it is only the underclass who ask for free stuff; so, this “sense of equilibrium” is found between the underclass and the people rich enough to get people elected. The middle/working classes are left under-represented.

    So i suggest an alternative. Let the Upper Chamber be elected by net taxpayers. By “net taxpayer” i mean somebody who pays more money in tax than (s)he receives from the State; either in benefits, or salary for government employees, or by working for a company that gets most of its money from the State (eg a defense contractor).

    Net recipients of State funding would still be able to vote for the Lower Chamber, asking for free stuff that way; and the very rich would still be able to buy elections to the Lower Chamber (but probably not to the Upper Chamber). But the interests of the middle/working class would be safeguarded by the Upper Chamber.

  • Nico

    @bobby: The idea is not to get other countries to adopt U.S.-like constitutions — that is clearly infeasible. Rather, the idea is to entice them to join a treaty that introduces some liberties in the signatories via the back door.

  • Snorri Godhi

    I also like the idea of the Chamber of Repeal, mentioned by Ellen. (It has also been mentioned for many years by Glenn Reynolds.) I submit that the best might be to make it necessary for both Upper and Lower Chambers to approve new laws, while making it possible for either Chamber to repeal existing laws unilaterally. That, of course, requires a rejection of the legal principle that only a new law can repeal an old law.

    But perhaps the most important constitutional reform in the UK today would be to make it impossible for anybody to be in the executive and the legislature at the same time. That is already the case in the US (since its foundation), Italy, the Netherlands, and probably other civilized countries: why is the UK so far behind the times?

  • staghounds

    If you pick them all the same way, they are all the same guy.

  • bobby b

    “Rather, the idea is to entice them to join a treaty that introduces some liberties in the signatories via the back door.”

    I know. I was jumping ahead a step. I was just reading a fairly interesting article about how NATO ought to adapt to the changing world cultures, and it struck me that such efforts have to lead in that direction (constitutional changes) if they want to effect any change beyond the next election. But no one seems to be in a good place to make long-term choices right now.

    https://f750b7b5-2078-4320-ae69-41c1a7dbac7d.filesusr.com/ugd/b3eb9d_0c22821bc98e4a2ab683746df10a4193.pdf

  • Paul Marks

    Unlike an American Speaker of the House, a British Speaker of the House of Commons is supposed to be neutral referee.

    Mr Bercow was indeed anything but a neutral referee – he supported a side, the anti British side. His hatred of independence was obvious.

    As for the House of Lords – if DOES NOT EXIST. It was abolished years ago.

    What took its place was a House of “Liberal” Hacks – not members of the landowning families.

    There is no point in having a House of retired politicians – most of whom picked by one of these “Great and the Good” “commissions” which have such unjust power in Britain. Such “commissions” and “authorities” are always controlled by the left – they are like “Ofcom” or the “Electoral Commission” or the “Advertising Standards Authority” (or the rest of the Legion of Devils that rule us – without being elected).

    And an elected “House of Lords” would be a contradiction in terms – and would challenge the authority of the House of Commons.

    So the SO CALLED House of Lords should be abolished – which would mean Mr Bercow would have no problem.

    He can complain about not going to the “House of Lords” if there is no “House of Lords”.

  • Nico

    Our Supreme Court (U.S.) will become a House of Lords if the dems win Congress, the Senate, and the Presidency again. Then each successive party control of those three will bring a new SCOTUS packing bill. Withing 100 years, if we’re still around as a republic, our SCOTUS will number in the many tens.

  • Lee Moore

    A chamber of repeal is superficially attractive but only superficially.

    The problem is that repeal is a process that simply requires an existing Act as a starting point. It is indifferent to the content of that pre-existing Act. Consider three Acts.

    Act 1. “Insulting the Prime Minister is a criminal offence punishable by 5 years imprisonmemt.”

    Act 2. “The government may not take any private property without full market value compensation.”

    Act 3. “Old age pensions shall be payable [insert 875 pages of detail] and insulting the Prime Minister is a criminal offence punishabe by 5 years of imprisonment”

    A House of Repeal would have the power to repeal Act 1. Yippee ! But it would also have the power to repeal Act 2. Not so yippee. And as in Act 3, the things that one might like to repeal can be embedded within things we might not want to repeal.

    Hence the need to skip past the process – repeal – and focus on the substance – liberty. The House of Repeal can’t be an actual House of Repeal, it needs to be a House that has the power to repeal illiberal things, and/or block them in the first place. A House of Repeal can repeal liberal* things.

    * in the English not American sense.

  • Snorri Godhi

    Lee: you seem to work on the assumption that repeal of you Act 2 is just as likely as repeal of Act 1. If this is so, then we would not need a Chamber of Repeal: we could use a random number generator instead. The purpose of a Chamber of Repeal is to discriminate between good Acts and bad Acts.

    Having said that, regulations today are probably a more serious problem than legislation. But the same principle applies: in the short term, Trump’s administration is repealing regulation, but in the long term, it will be necessary to make it easier to repeal regulations than to enact them.

  • Lee Moore

    The purpose of a Chamber of Repeal is to discriminate between good Acts and bad Acts.

    In an ideal world, sure. But I think it prudent when designing a new weapon in this world, to imagine how it would work in the hands of my enemies.

    A House of Repeal makes it easier to change the law – some changes will be for the better, and some will be for the worse. My preference is to design a weapon such that even in the hands of my enemies, it will do no harm. In their hands it may not be fired at all. Better than firing at the wrong targets.

    So if I design a House of Changing the Law only in a Liberal Direction, if my enemies control it, as they might, they can’t make things worse. When my friends control it, they can make things better. My weapon only fires at certain targets, whoever is in charge of it. That’s my ratchet.

  • thefattomato

    Bercow is claiming there is a conspiracy against him, whereas it is more accurate to say there is no conspiracy of corruption in favour elevating him to the HOL, the way most of the rest got there.

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