In the United States the Republican Party is on the back foot and they know it. On the whole their main support is in the rural areas, whereas the the main support of the Democrats is in the larger cities. This tendency is increasing as young people move from the country to the cities, where enterprising migrants also tend to congregate.
For historical reason the US Constitution gives the rural areas a built- in political advantage as each state, regardless of population, is allocated two members of the Senate. So Wyoming,the smallest state, with a population of 600 000, elects two Senators, as does the largest, California, with a population of over 39 million. This advantage affects the number of "electoral college votes" allocated to each state for the actual election of the president.
So last year, 2020, we saw the Republican Party, and not just Donald Trump, scrambling furiously to reduce the turnout of voters among people most likely to vote Democrat.
Voter registration, for decades made more difficult for people of colour, even after emancipate, continued to be difficult, and for immigrants as well. The funding of the Post Office was reduced in order to hamper its capacity to deal with postal votes, Trump himself went out of his way , months before the actual election, to claim that vast numbers of postal votes would be "fake", and the numbers of polling booths in migrant and "black" areas were reduced so that those who chose to vote in person would be discouraged by long queues.
Weeks after the election Trump and the Republicans were still challenging the result .
President Biden has probably only two years to reverse this process becasue it is very likely that in the mid-term elections the Democrats will lose their majority of 1 (the casting vote of the Speaker because the present composition is 50/50) after which further reform will be stymied.
In the UK the Conservatives are taking similar steps as the US Republicans in order to hijack our own democracy.
Measures have already been introduced to make it more difficult for the young, students, migrants, and itinerants, all most like to vote for progressive parties, to get on to the registers or to use their vote if they are on it.
Voter registration has largely been made more complex by requiring each person to register individually rather than by household. Measures to make it easier for "attainers" - 16 and 17-year-olds who could become old enough to vote during the life of a register, though approved by the Lords, were rejected by the Commons with its 80 seat Conservative majority. A requirement to produce evidence of identity at the polling station is about to be introduced - though there is no current evidence of even the slightest significant "personation." (There used to be in Northern Ireland, where "vote early, vote often" was a popular slogan)
In the recent past hesitant steps have been taken to make at least some of our elections more democratic. There are forms of proportional representation for the Scottish Parliament and the Welsh and Northern Ireland Assemblies, and in these nations' local government elections.
In England we have had the luxury of a "supplementary vote" in elections for Executive Mayors and for Police and Crime Commissioners. This system provides that if the person with the most votes does not have more than 50% of the votes cast than all but the top two are eliminated and their "supplementary" or second preferences are transferred and counted so that the person elected has an over-all majority of sorts.
Out of the blue, (sic) as far as I can see, this system has been withdrawn and we shall be back to "first past the post." I am bewildered by two things:
- First how can the Home Secretary bring about this change by fiat - surely it is a matter for parliament, and better still, only by consent of the people doing the voting:
- Second, why has there been so little publicity about it? Such matters should provoke outrage.
"Free and fair elections," though perhaps the most important, are only one ingredient in a well-functioning democracy. We are told that the Government is to use its 80+ majority in Parliament (based on only 43.6% of the total vote) to repeal the Fixed Term Parliament Act, thus giving the prime minister the right to call a general election when it best suits his party.
And to cap it all, they plan to reduce the right of the courts to examine whether or not the government has acted legally - a provision first introduced in Magna Carta in 1215.
The cynical clique temporality in charge of our government is systematically removing the building block of our democracy.
Where is the outrage?
In the United States the Republican Party is on the back foot and they know it.
ReplyDelete'On the back foot' seems a strange way to describe a party which just last year got the second-highest number of votes ever cast for any candidate in a Presidential election in the history of the United States, and which has a good chance of taking control of at least one if not both houses of the legislature at the next elections. Do you not think the idea that 'demographics is destiny' and the change in, for example, racial make up of the electorate spells inevitable doom for the Republicans, was rather dealt a fatal blow by such counter-trends as the fact that Trump increased his share of among Hispanic voters in 2020 over 2016?
Second, why has there been so little publicity about it? Such matters should provoke outrage.
That one's easy: PCCs have no useful powers, so nobody cares who they are or how they are elected, as they can't actually do anything.
We are told that the Government is to use its 80+ majority in Parliament (based on only 43.6% of the total vote) to repeal the Fixed Term Parliament Act, thus giving the prime minister the right to call a general election when it best suits his party.
Given that the alternative is we could end up in the hideous sort of stasis experienced in 2019, where the government has no majority and so is unable to get anything done, but Parliament won't allow a general election to actually change the government ot one which does have a majority, that seems the least bad alternative.
And to cap it all, they plan to reduce the right of the courts to examine whether or not the government has acted legally - a provision first introduced in Magna Carta in 1215.
No, they plan to stop people trying to use judicial reviews to conduct 'politics by other means' — to stop people who are unable to gain democratic backing for their proposals trying to have them imposed by the courts, as for example happens in the United States where there have been several 'laws' which were never actually passed by a majority in their Congress but simply declared to be so by their Supreme Court. This is a noble and laudable aim. If you want a law made — or conversely, if you want a law repealed — then you should have to persuade the electorate in general to agree with you, not merely persuade a panel of judges.
politics by other means
DeleteOn which subject I highly recommend the Reith lectures given by Jonathan Sumption, former justice of the UK's Supreme Court, in 2019:
https://www.bbc.co.uk/programmes/m00057m8
Thanks for the link, but I have in fact already read them. Sumption is a very leaned judge but I think on this he is mistaken. “Politics by other means" is a clever attempt to smear a perfectly logical and legal procedure. In our constitution parliament makes the laws and everybody, including the government, should obey them. This principle was set out in Magna Carta. If you, I or the government does something which appears to be illegal then we can be taken to court and the court will decide whether it was or not. The same applies to the government. Hence the court decided, objectively and impartially, we must presume, that Mrs May's attempt to proceed with the Brexit negotiations without consulting parliament was illegal. The court decided, objectively and impartially, we must assume, that Mr Johnson's prorogation of parliament was illegal. That's what the "rule of law" means. It is an essential element of democracy and attempts to distort it or defy it undermine democracy.
DeleteIn our constitution parliament makes the laws and everybody, including the government, should obey them.
DeleteExactly. Which is why, surely you must agree, that any attempts to get a court to rule either that a law made by Parliament is illegal, or contrariwise that something which was not passed by Parliament should still have the status of a law — both things which happen in the US system — are totally alien to our constitution, and the government is therefore right to act to curb that tendency before it takes root?
The court decided, objectively and impartially, we must assume, that Mr Johnson's prorogation of parliament was illegal
Why must we assume that? Indeed, if you take the view you did above, that 'parliament makes the laws and everybody, including the government, should obey them', how could the court possibly decide that the prorogation was illegal, given that it [the prorogation] contravened no law made by Parliament?
The courts did not rule that "a law made by parliament was illegal" but that an action proposed by the government would be against the law as it sands. If the government can them persuade parliament to change the law and permit it to act in the proposed way, that would be perfectly constitutional But the government cannot just disregard the law. That is the safeguard against tyranny that was first established in Magna Carta. Judges who rule that the movement is proposing to act illegally are by no means "enemies of the people", but guardians of the constitution.
ReplyDeleteThe courts did not rule that "a law made by parliament was illegal" but that an action proposed by the government would be against the law as it sands.
DeleteYou're conflating two of my points.
To deal with the specific, in the prorogation case, the court did indeed rule that an action proposed by the government would be against the law. However, said action contravened no statute passed by Parliament and, as you wrote, 'parliament makes the laws'. How then could the government's action possibly be illegal, if Parliament makes the laws, and the government's action did not contravene any law passed by Parliament?
In the general case, it's true our courts have not yet ruled a law made by Parliament illegal. However, the supreme court of the USA (on which ours seems to be deliberately modelling itself) has so ruled, in relation to laws made by their equivalent of our Parliament, multiple times (and it has also created laws which were never passed by their equivalent of Parliament). So it seems a good idea to set out explicitly that our courts do not get to overruled Parliament, just to stop them getting ideas about doing the same.
If the government can them persuade parliament to change the law and permit it to act in the proposed way, that would be perfectly constitutional But the government cannot just disregard the law.
But in the prorogation case, to which I assume you are referring here, the government was obviously not 'disregarding the law' as there was no law ever passed by Parliament stating that Parliament could only be prorogued for a good enough reason (unless you can point to one? but the Supreme Court couldn't in its judgement, so I am guessing you can't).
I think we're both over-simplifying. You argue that in the prorogation case (and I would argue in the Theresa May case also) the government did not try to break a law actually made by parliament.
DeleteHowever, I'm sure you know as well as I do that ours is a Common Law system and our laws stem from the unwritten Common Law itself, certain historic statues (Magna Carta and the Bill of Rights) Statue Law made by parliaments over the centuries and successive determinations (precedents) by judges as to what the law actually is at any given time.
It was from this mixture of sources that that the judges decided, unanimously I think, that what the government proposed to do was contrary to the law as it stood at the time.
But parliament is sovereign. It the government, or anyone else in theory, does not like what the courts determine the law is then they can ask parliament to change it. If parliament agrees then the law is changed.
However, I'm sure you know as well as I do that ours is a Common Law system and our laws stem from the unwritten Common Law itself, certain historic statues (Magna Carta and the Bill of Rights) Statue Law made by parliaments over the centuries and successive determinations (precedents) by judges as to what the law actually is at any given time.
DeleteYep.
It was from this mixture of sources that that the judges decided, unanimously I think, that what the government proposed to do was contrary to the law as it stood at the time.
Nope. Their decision wasn't based on any of those sources. It had no basis in common law or (we've already established) in statute, historic or otherwise; and it certainly didn't draw on any precedent.
It was simply made up because they thought that it was the right ruling. Which is not what judges are supposed to do. They are meant to apply the law as it is, not make up reasons to say the law is what they think the law ought to be.
But parliament is sovereign. It the government, or anyone else in theory, does not like what the courts determine the law is then they can ask parliament to change it. If parliament agrees then the law is changed.
DeleteAnd this is exactly what's happening with the judicial review reforms, isn't it? A bill is being put before Parliament and, if Parliament approves it, it will become law and the courts will have to apply it.
So how can you complain about what is — according to you — the system working as intended?
(And, because Parliament is sovereign, it cannot bind its successors, so if a future Parliament wants to undo these reforms, it is perfectly capable of doing so — again the system operating as intended)
Sadly you are right. If parliament wishes to limit the ability of the courts to examine the legality of the actions of the executive it can do so. But it is a backward step and damages a 200 year old safeguard of the liberties of the people. Is that really "conservative"?
ReplyDeleteSadly you are right. If parliament wishes to limit the ability of the courts to examine the legality of the actions of the executive it can do so. But it is a backward step and damages a 200 year old safeguard of the liberties of the people. Is that really "conservative"?
ReplyDeleteIf you have been going in the wrong direction, isn't stepping back is a good thing.
And does it damage a 200-year-old safeguard of the liberties of the people? I don't think so. No one, after all, is suggesting that the courts stop being able to rule on whether actions of the executive are illegal; only to clarify what 'illegal' means in this context, to avoid judicial activism and judge-made law, and to tidy up what remedies can be given . (The actual proposals in the consultation document, found at https://www.gov.uk/government/consultations/judicial-review-reform , are highly technical, and will take longer than I have now to read and digest).
More to the point, the 'liberties of the people' are not only under threat from the executive, but can also be threatened by judicial activism itself. Judges making up laws that do not have the democratic consent of the people — as happens not infrequently in the USA — is a far greater infringement of the liberties of the people than actions of the executive, as at least the executive is answerable to the people at the next election, while judges never have to answer to the people for their decisions.
So while it is absolutely right that the courts can rule on the actions of the executive, it is also important that the paramaters of the court to do so be strictly set up in order to avoid the tyranny of the executive simply being replaced by the tyranny of judges.
I meant 800 year-old safeguard.The language of "tryrany of the judges" is clever but inappropriate. I am quite confident that judges do their best to interpret what the law actually is. They are not "enemies of the people": nor are the Lawers who act on behalf of those who challenge the government. To reduce their ability to do so actually means that the government increases the areas in which it can do what it likes.
ReplyDeleteI am quite confident that judges do their best to interpret what the law actually is.
DeleteAre you? Why? And if they didn't, but instead decided to impose their views of what the law ought to be as the ones in the USA do commonly — what recourse would you have?
You seem to be saying that you are happy for judges to have this unreasonable power, because you trust them to exercise it correctly.
But isn't the whole point of democracy that we ought not, as a general principle, to have to trust that anyone will exercise their power correctly, because they should be answerable to the people? Democracy indeed could be summed up as an attitude of fundamental distrust in anyone who gets to exercise power.
You're of an era to remember Tony Benn's five democratic questions, aren't you? Well, how do those apply to activist judges?
(In the USA they get around this democratic deficit by making judges political appointees, and therefore part — however indirectly — of the democratic system. Assuming you disapprove of this system and wouldn't import it, how do you propose we here bring judges under democratic control, if you give them powers to overrule and make up laws, powers which rightly in a democratic system should be exercised only by those answerable to the people?)
You remind me of an article I read a while ago, but cannot now find, headlined something like, 'Who does the Prime Minister answer to?'. The claim was that Boris, with an 80-seat majority, did not have to 'answer to' anyone, and that this was a problem.
Which rather ignores the fact that he only has that 80-seat majority because he answered to the electorate in December 2019, and that he will answer to them again sometime before December 2024 (and likely before May 2024, as
It occurred to me that the question the writer of the article really wanted to ask was: 'who does the electorate answer to?' That is, the writer was asking if there was no one who could step in, when the electorate voted in a way of which the writer did not personally approve, and overrule the result, either setting it aside completely or asking the electorate to vote again until they came up with an answer more to the writer's liking.
You are giving the impression of being very like that writer: of seeing the electorate as, basically, children, to be consulted, and with a right to have their views taken into account, but fundamentally, not to be given the final say — we always need to have an adult somewhere who can step in and say, right, we've heard what you want, but that's a bad idea, so this is what we're going to do instead.
It seems to me you want judges to play this role of 'responsible adult'. To give them effectively total power (which is what they have if they can rule on the actions of the executive without any oversight) on no basis other than that you, personally, trust them to 'do their best to interpret what the law actually is'.
Your repeated parallels with the United States are invalid. As you well know the US has a piece of entrenched law, the Constitution, which cannot be changed by a simple act of both Houses of Congress but requires a procedure which is very complex and difficult to achieve.
DeleteParts of this entrenched law relate to issues for which there can be valid arguments for and against. For example it is reasonable that a ban on abortion protects the right of the unborn child. But equally such a ban would conflict with rights of women to make decisions over their own bodies.
In the UK it is fairly simple for parliament to decide which view should prevail in contemporary circumstances, as they did over David Steel’s private member’s bill on Abortion.
You ask why I am prepared to trust the integrity of the judiciary. Perhaps because I watch too many episodes of “Judge Deed.” In a recent repeat, on giving evidence himself he was not required to take the oath because “he is a High Court Judge.” QED.
You use loaded language such as “activist judges.” I think you’re tilting at windmills. Have you any examples of instances when the judges have done anything other than make honest attempts to determine what the law actually is? Have you any evidence ?
And if parliament feels that their decision does not properly deal with current circumstance it can change the law. But unless and until it does the government must obey it.
Your repeated parallels with the United States are invalid.
DeleteAnd my point is that I want them to remain so. Which they won't if judges over here take it upon themselves to behave in the same way as judges in the USA.
Parts of this entrenched law relate to issues for which there can be valid arguments for and against. For example it is reasonable that a ban on abortion protects the right of the unborn child. But equally such a ban would conflict with rights of women to make decisions over their own bodies.
In the UK it is fairly simple for parliament to decide which view should prevail in contemporary circumstances, as they did over David Steel’s private member’s bill on Abortion.
I'm not sure what your point is here. That in the USA the supreme court had to step in because it would have been impossible, due to their constitution, for individual states to legislate on the issue of abortion? But that's simply not the case. Prior to the celebrated case in 1973, states had quite happily been legislating on abortion, and each state had laws which its own democratic legislature had passed.
You ask why I am prepared to trust the integrity of the judiciary. Perhaps because I watch too many episodes of “Judge Deed.” In a recent repeat, on giving evidence himself he was not required to take the oath because “he is a High Court Judge.” QED.
Might I respectfully suggest that the nature of our constitution is too important an area to be decided entirely by the output of the ITV drama department?
You use loaded language such as “activist judges.” I think you’re tilting at windmills. Have you any examples of instances when the judges have done anything other than make honest attempts to determine what the law actually is? Have you any evidence ?
Well, there's the prorogation case that you initially brought up.
And if parliament feels that their decision does not properly deal with current circumstance it can change the law. But unless and until it does the government must obey it.
Indeed. But prior to 2019, Parliament had made no decision on when the Prime Minister was entitled to request that Her Majesty prorogue Parliament. Indeed it stil has made no such decision. How can the government obey Parliament's decision if Parliament has made no decision?
If there were a 'Prorogation of Parliament Act' then of course the government would have to obey it. But there was and is no such Act.
BE SMART AND BECOME RICH IN LESS THAN 3DAYS....It all depends on how fast
ReplyDeleteyou can be to get the new PROGRAMMED blank ATM card that is capable of
hacking into any ATM machine,anywhere in the world. I got to know about
this BLANK ATM CARD when I was searching for job online about a month
ago..It has really changed my life for good and now I can say I'm rich and
I can never be poor again. The least money I get in a day with it is about
$50,000.(fifty thousand USD) Every now and then I keeping pumping money
into my account. Though is illegal,there is no risk of being caught
,because it has been programmed in such a way that it is not traceable,it
also has a technique that makes it impossible for the CCTVs to detect
you..For details on how to get yours today, email the hackers on : (
atmmachinehackers1@gmail.com ). Tell your
loved once too, and start to live large. That's the simple testimony of how
my life changed for good...Love you all ...the email address again is ;
atmmachinehackers1@gmail.com