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liadnanThough the Court of Appeal have now held that despite the appallingly shoddy drafting of the legislation preventing unauthorised protests in Parliament Square, the section does indeed apply to Brian Haw, for the moment he remains (unless things have developed further since last night's raid).
The response from the Police and Government seems pretty ridiculously pathetic - see here for last night's antics.
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Date: 2006-05-25 10:05 am (UTC)>and at what point are the leaders assumed to have a mandate - as opposed to remaining in power simply because no-one has held them to task?<
I don't quite get your point - our government are held to task every day by constitutional procedures that have worked for centuries. The government has a mandate to govern, derived from their election, the leader of the government has a mandate to lead their party, derived from their party's own procedures.
>This would be a free and democratic election decided in fair part by the size of the respective campaign chests?<
Cerainly influenced by their war-chests, else why spend the money? But how does advertising spend lessen the freedom of every voter to cast their vote, or of the democratic nature of a first past the post system? There are sound arguments for different systems of proportional representation, or to restrict advertising spend, but I can't see how these would change an elected governement's propensity to disagree with you.
>When my support for any given political party counts to the same extent as, say, Bill Gates' then we have a free and democratic system.<
By your definition, certainly. Can you name any system of government in the history of the world which meets that definition?
>And at what point can a government be said to have forfeited their right to a position? - by your contention, a government would be free to institute a policy of compulsory child mortality tomorrow on the basis of a vote last year - and any attempt to overthrow them or void the policy would be illegitimate.<
Sorry, but I never contended that it is illegitimate to attempt to change a government's policy or to change a goverment - I did say that their legitimacy wasn't tied to your opinion. We have a range of legitimate tools to change government policy, and to change governments. In theory Parliament can indeed legislate in any way it desires - although that is limited by their ability to command a majority in the Commons, a majority that might be dificult to gather for the Herod (Children) Bill. Even if the bill passed, there are a range of safeguards on implementing it.
>Furthermore; if an allegedly democratic government<
There is no "allegedly" here. The governemnt was democratically elected.
>does things that damage local and national democracy, then it is acting against the interests of the country it is nominally in charge of; and should be accountable as such.
Not simply to the parties of opposition, but to the people as a whole and the judicial system in particular.<
OK, accepting for a moment that you will decide what is harming local and national democracy, not the people we've elected to represent us. What practical sanctions do you advocate for behavior running counter to your opinions, who specifically do you see these sanctions being applied to, and what mechanisms do you intend to employ to apply the sanctions?
I realise you may have no answer for these questions, or feel that it is not your responsibility to suggest alternatives, only to point out flaws. There's an honourable tradition of Anarchy, which I'm very sympathetic to, but I don't think that's what you're advocating.
It's easy (and fun) to poke holes, harder, and less fun, to suggest improvements.
Part 1.
Date: 2006-05-25 11:40 am (UTC)I don't quite get your point - our government are held to task every day by constitutional procedures that have worked for centuries.
Parliamentary procedure should not conflated with genuine external scrutiny; the Houses are an incestuous little world of blocs and factions and favours, and many of the intended checks and balances (to use the US term) simply do not apply as intended.
When was the last time a monarch refused to grant their assent to a Bill?
(The answer might surprise you.)
The government has a mandate to govern, derived from their election, the leader of the government has a mandate to lead their party, derived from their party's own procedures.
How justified can such a mandate be when the Government appears to be doing its best to alienate the populace from the political process?
There is comparatively little diversity in Parliament as is, and the monolithic parties we have are effectively untouchable as a result.
how does advertising spend lessen the freedom of every voter to cast their vote, or of the democratic nature of a first past the post system?
Advertising is a tool of popular control; if it was not proven to affect people, then the advertising industry would not exist in its current form.
When an individual like Murdoch has the power to inflict his political views on people as the 'correct view', then he is distorting the electoral landscape by virtue of his spending.
Remember "It was the Sun wot won it"?
There's an element of truth in that.
(As is, in a representative democracy, I'd be much happier with STV or PR than FPTP; but that's by-the-by.)
Can you name any system of government in the history of the world which meets that definition?
No. I can't. It's something to work towards, though. Strict and enforceable limits on campaign spending would be a good start.
Sorry, but I never contended that it is illegitimate to attempt to change a government's policy or to change a goverment - I did say that their legitimacy wasn't tied to your opinion.
I disagree. Revolutions have begun on individual opinions before now - vide the Spectre of Communism.
If a critical mass decide that a government is illegitimate, then it is illegitimate.
A government can only govern by consent of one form or another.
We have a range of legitimate tools to change government policy, and to change governments.
All of which are subject to modification by the government itself.
(As is threatened by the proposed Legislative and Regulatory Reform Bill (http://www.publications.parliament.uk/pa/cm200506/cmbills/141/06141.i-ii.html))
Re: Part 1.
Date: 2006-05-30 08:41 pm (UTC)(The answer might surprise you.)"
Well I'm the last one to stand up for a royal veto, but the checks and balances I had in mind were the committee stages, approval from the Lords, and legislative scrutiny. While these are all ultimately surmountable, they cannot be quietly surmounted - at the least they provide the function of making government happen as near to publicly as we can get it.
"How justified can such a mandate be when the Government appears to be doing its best to alienate the populace from the political process?"
What does this mean past rhetoric? That the government are actively discouraging voting? (As opposed to the passive discouragement given by watching any politician in action).
"There is comparatively little diversity in Parliament as is, and the monolithic parties we have are effectively untouchable as a result."
This is a sound argument against party politics, and also for proportional representation - I think abolishing the first is unlikely, while the second might be worth campaigning for (although first I'd look at its impact in Scotland, where it has effectively saved one of the monolithic parties from having no seats at all in the Parliament).
"When an individual like Murdoch has the power to inflict his political views on people as the 'correct view', then he is distorting the electoral landscape by virtue of his spending."
I'd argue with the 'correct view'. The view of The Sun, perhaps, but I'd say that the tabloids reflect the views of their readers rather than shaping them. I'm no fan of The Sun, and I will never buy a Murdoch paper, but to argue that they shape the minds of their readers, or that they can win an election, is an insult to the voters.
"Strict and enforceable limits on campaign spending would be a good start."
I worry about this, not least because I think it's unenforceable - I believe that the USA has strict guidelines on Party advertising. In theory, I agree. In practice, I don't see how it would ever work. For instance, would a Sun leader (not paid for by a political party) be covered? Or a Guardian article? Or a partisan blog? The abolition of a free press seems a large step to take.
"Revolutions have begun on individual opinions before now - vide the Spectre of Communism."
We'll have to differ on that - in my opinion Marx no more started the communist revolution than Gorbachov ended it.
"If a critical mass decide that a government is illegitimate, then it is illegitimate."
This is genuinely scary, although I don't believe you meant it that way. What is "a critical mass"? (apart from a Satanist rite conducted by the TLS). If you say it's a majority of the electorate, then obviously I agree. If it's some figure less than that, then I'm not too keen on having my choice of government overthrown by a bunch of highly motivated crackpots. Would, for instance, The Royal Highland Regiment constitute a critical mass? The Workers' International? The NUF or the TGWU?
"A government can only govern by consent of one form or another."
Quite. In this country we call it an election.
Apologies for taking so long to notice the "Quote" button.
Again, that's a good argument for legislative scrutiny - even though I believe the was an example of bad draftsmanship rather than anything more sinister.
Re: Part 1.
Date: 2006-05-30 08:42 pm (UTC)Part 2.
Date: 2006-05-25 11:40 am (UTC)Firstly; although Parliament may make the laws, the judiciary has the duty of determining their usefulness and application.
Secondly; as has been demonstrated recently, a party leadership is not above the deliberate misrepresentation of facts to their own backbenchers to secure a majority.
Thirdly; were this the case, then a whipping system should not be necessary. The existence and use of party whips indicates that the party leadership can and will punish those within the party who do not tow the approved line.
Fourthly; as has also been demonstrated recently, the current government is not above the worst sort of crude populism in order to inflict its views on the judiciary in their interpretation of UK laws.
(How autocratic does a government have to be when you're cheering on the Law Lords as defenders of freedom and justice for all?)
Rather than appeal to the parties concerned in enacting the laws, the current government appears inclined to appeal to the tabloids (and their owners), knowing that the tabloids are effective at modifying popular opinion.
There is no "allegedly" here. The governemnt was democratically elected
As were various rather unpleasant characters in world history; it didn't make their governments champions of democracy.
I'm not (of course) saying that this government has done anything like outlawing other political parties or rounding up and imprisoning dissidents without trial; yet the current UK political system is sterile; the effect of TINA on the political landscape has been to drive the two major parties into fighting on very similar ground with very similar policies; and any genuinely different parties are marginalised.
This has the knock-on effect of lowering voter turnout; faced with Tweedledum or Tweedledee, a fair proportion of the population have simply become alienated by the whole process; which gives more control to the major parties, as it removes the political sphere from everyday life.
I would contend that a government which acts knowingly in its own interest at the expense of political diversity in the country as a whole has no business calling itself democratic; it may have been elected by the system; but apparently feels no reciprocal obligation to preserve that system in a working order.
What practical sanctions do you advocate for behavior running counter to your opinions, who specifically do you see these sanctions being applied to, and what mechanisms do you intend to employ to apply the sanctions?
To the first; individual noncompliance with the laws in question (in this case, protest in Parliament Square) and encouragement of others to join in dissent (as per this argument).
As an individual, I can only tell myself what to do; I do not support the direction of others' actions - ultimately, everyone has to make their own mind up, and that can not and should not be ordered by others.
As to alternatives; yes, there are, on a personal level, on a local level (e.g. LETS schemes, co-operatives, small-scale collaborations and the like); and, frankly, I think the nation state is an overlarge, cumbersome and outdated entity.
But that's several thousand words, and LJ isn't the place for it.
Re: Part 2.
Date: 2006-05-25 12:08 pm (UTC)Punch and Judy, needless to say, will be back after this break *grin*
Re: Part 2.
Date: 2006-05-30 08:45 pm (UTC)Really? Last time I checked, the judiciary only had a role to play if the law was ambiguous or incompetent - only then could they interpret it.
And so has it ever been - and they always pay for that.
Re: Part 2.
Date: 2006-05-31 12:04 pm (UTC)No, this is wrong. It has always been the job of the judges to interpret legislation: it is merely more difficult to do so when it is ambiguous or incompetent (whatever incompetent means in this context). Purposive interpretation has been going on for many a long year - see Pepper v. Hart, just for a start, interpretation in such a manner as most complies with international obligations is a principle established for some centuries, and this is particularly the case with EU legislation -and see also Factortame No 2-; the HRA specifically requires that legislation be interpreted in a manner that complies with the convention, and so on and so forth.
Re: Part 2.
Date: 2006-05-31 12:24 pm (UTC)I didn't mean to say that judges have no interpretative role - only that they cannot rule in contradiction to a clearly expressed law, unless that law is incompetent (in this context I intended that to mean where it runs against another piece of legislation - as with the Human Rights Act, or when the enactment process was flawed). I well remember cases where the judges made every attempt to discriminate their judgement from existing law which, to all intents and purposes, was bad law, but which was clearly expressed. There is a limit to teleological interpretation.
Re: Part 2.
Date: 2006-05-31 01:46 pm (UTC)Very little legislation can really be said to admit of only one meaning though. But as you say if it really does then it's unlikely anyone's going to be arguing about it: a judge is only going to make an explicit decision about what a statute means either if the point has been put in argument or (much less likely) it hasn't but they think it should have been.
Haws case is particularly interesting because the principle against retrospective legislation is a strong one, which the Divisional Court stuck to, but the CA went for a purposive approach, knowing as everyone did that the section in question was actually directly aimed at Haw.
Re: Part 2.
Date: 2006-05-31 01:49 pm (UTC)Re: Part 2.
Date: 2006-05-30 08:57 pm (UTC)A good argument against party government, but we do live in a party system.
Given the staunch Conservatism of our bench, I'm a not really inclined to condemn any attempt to appeal to the electorate over their heads.
The last time I remember Lord Denning was kicking up a fuss. Of course, he was pretty much in a minority then.
You don't have to be a champion of democracy to be democratically elected - even abolishing local authorities who disagree with you doesn't make your government illegitimate.
I don't agree - in the Scottish Parliament the Tories are the third force, and very nearly the fourth. In many parts of the country independents flourish. And don't forget the rapid growth of a genuinely populist alternative party in many English local authorities - and given the adoption of proportional representation, the BNP would surely win a few seats in Parliament
Re: Part 2.
Date: 2006-05-31 12:11 pm (UTC)Re: Part 2.
Date: 2006-05-31 12:26 pm (UTC)If it's really the case that the senior bench has undergone such a change from the 80's, then I'm quite chuffed but very surprised.
Re: Part 2.
Date: 2006-05-31 01:42 pm (UTC)Denning published a sequence of books towards the end of his career in the last of which he made extremely ill-judged remarks about black people and if I remember rightly (the run really was pulped and I have only ever seen one copy) black lawyers and their capabilities specifically. He apologised, and his apology was accepted (by the leader of the black lawyers association) but the damage was done, and though I don't believe he was guilty of hardline bigotry or express racism I do think what he said betrayed a certain racially patronising mindset and a failure to appreciate what might cause offence (those are clumsy terms but I hope you understand the distinction I'm making). It was taken so badly that he resigned in the furore -all other judges of his age were subject to automatic retirement, but he was exempt from those provisions because he was appointed to the High Court bench before they came in (he became a judge very young indeed).
He should also be remembered for his regrets that the Guildford 4 weren't hanged and for several comments, observations, and purple passages in his judgments which betray, to my mind, a rather Little Englander perspective.