Michael Calderbank (ERS): Alexandra Runswick commends David Davis for forcing a by-election for his Haltemprice and Howden seat and thereby raising a pertinent question about our concern for civil liberties, "regardless of whether this was the best way to do it". Whilst I share the widespread dissension from the government's insistence on 42 days, I don't think we can simply skate over the dubious democratic legitimacy of this artificially contrived by-election.
Maybe Davis has indeed been successful in posing the question of "how much do you value your rights and freedoms", but it's far from clear that that's the only question being asked, and - more worryingly still - it is extremely unclear how this particular by-election is in a position to answer it conclusively. Whether the by-election is seen as a narrowly defined plebiscite on the question of 42 days, or on the wider philosophical question of our basic liberties, these are surely issues of concern to the nation as a whole. It is far from clear why a few thousand voters in a relatively affluent part of the rural East Riding of Yorkshire should get to arbitrate on our collective behalf. And were Davis to be re-elected with an increased majority, as seems likely, would the good burghers of this constituency feel assured that their liberties would be championed by an MP who supports the death penalty and attacks trade union rights? Would a resounding victory over Miss Great Britain and the Monster Raving Loony party really signify a historic expression of liberal resistance to an increasingly authoritarian state?
Davis cannot be surprised that Labour have chosen (wisely in my view) not to field a candidate. His was not even a "bell-weather" marginal constituency, the kind of seat that might have excited psephologists anticipating the likely scale of a general election defeat. No, this is a seat with only a residual Labour presence, a seat which when Labour swept into power in the landslide of 1997 remained obdurately unmoved. So, whilst David Davis might be playing a high stakes game with his own career, this particularly table sees the dice heavily loaded in his favour. Winning here, however convincingly, will not be sufficient to demonstrate a decisive popular rejection of the government's trajectory on these issues. So the whole bizarre episode is only likely to demonstrate, in inchoate fashion, what we already know - namely that people are currently angry with the government for a myriad of reasons and that quite a wide section of the population feels strongly about civil liberties.
Yet simply by lending an air of legitimacy to these proceedings, those in sympathy with Davis's actions provoke a serious question in response: "How much do we value the integrity of our representative democracy?" Suppose more individual MPs feel emboldened to reject democratic votes in Parliament, creating a media splash through a single issue by-election: where would this leave the authority of the Commons? What if a populist local plebsicite was held on something just as basic to our rights and freedoms such as abortion, or the death penalty? So what threshold has been crossed to legitimate this particular contest? The argument that the Parliament Act could have been used to force through the will of the elected chamber over 42 days seems an unlikely basis for constitutional reformers to applaud the forcing of a by-election. And, in any case, by-elections hardly offer sufficient scope for patient, exhaustive examination of the issues at stake.
A good example of this is Davis's claim that the 42 days legislation heralds the end of habeas corpus and thus the destruction of the centuries-old foundation of liberties enshrined by the Magna Carta. No acknowledgement, of course, that the principle of no detention without charge had already been conceded, not least by Davis himself when he voted for the 28 days. And no mention of the fact that the government's proposal was not a blanket extension to 42 days, but rather a reserve power that could only be activated in exceptional circumstances and subject to judicial and parliamentary scrutiny.
Of course, MPs must ultimately be accountable to the electorate for any such decisions, and any governing party that was believed to have put its own political interests before our constitutionally established rights and freedoms will surely be forced to pay a high price. But those of us interested in renewing the institutions of representative democracy should not compromise the ability of MPs to exercise their considered judgment free from the temporary attractions of populist opportunism.
To be sure we need a more democratic system for electing our representatives, and the different kind of politics that could flow from it. I share, too, the belief that a democratic society requires a constitution that guarantees that the liberties of all its subjects are not subordinated to the temporary expedients of the State. Notwithstanding the Conservative romanticism of David Davis, such a constitution has never been something that Britons have been able to take for granted. Rather, it is something that has had to be fought for and protected by generations of collective struggle. That said, in continuing to fight for those ends, we cannot afford to be cavalier about adopting means that threaten to undermine the coherence of representative democracy itself.
Comments
The point you are raising, however, could be argued both ways. The Davis resignation provokes the question: when (if ever) is this sort of act legitimate? At the moment, as we can see, we have no ground rules for establishing this sort of legitimacy, just the arcanity of the chiltern hundreds and a politician's own sense of what is "proper". It is precisely this sense of propriety that has failed British democracy so overwhelmingly in the last 10 years, in many and various forms.
To claim that Davis is playing fast and loose with the system, therefore, is to my mind slightly beside the point. There hardly is a system, and everyone is playing fast and loose with peerages, special advisers, election times and all the rest of it - detention times included. He has taken a pretty bold move to highlight what he sees as a serious problem, and if it also provokes a debate about how our system relies on people observing some sort of unwritten code, so much the better.
On another point, and purely from a tactical point of view, am I the only one who thinks Labour should have stood a candidate? If they were ahead, or even breaking even in the polls, then this move makes sense. But so far behind as they are, they need some kind of inspiring, one off victory. Here was a chance to campaign on the one item where Labour genuinely believes they have an advantage! Admittedly chances of victory were remote, but even a swing towards them would have improved morale. It would have been a risk - but If they want to win they need to take some risks from this position.
"How much do we value the integrity of our representative democracy?"
At the moment, very little indeed (personally speaking). The very fact that this law has a real chance of becoming law suggests that our current system is neither representative nor democratic. Nor, subsequently, does it have much integrity.
Even if we were completely neutral on the precise issue of extending pre-charge detention to 42-days, the argument that Davis voted for 28 days doesn't apply because in that situation, unlike now, there was broad cross-party agreement.
To claim that Labour would ultimately be accountable at the ballot box is demonstrable nonsense: if the fact that they only secured 35% of the popular vote at the last election had been reflected under our current system, we wouldn't be in this situation in the first place. I would have expected ERS, of all organisations, to understand that.
Even if this bill had been passed with cross-party consensus AND Parliament reflected the votes cast at the last election, this would still have been a bad decision - democracy without fundamental rights is no democracy worth the name. But we should expect at least one out of three before lauding the system's "integrity" shouldn't we?
"Suppose more individual MPs feel emboldened to reject democratic votes in Parliament, creating a media splash through a single issue by-election: where would this leave the authority of the Commons?"
In deep doo-doo, which is arguably precisely where it should be. Sounds like a good idea.
"What if a populist local plebsicite was held on something just as basic to our rights and freedoms such as abortion, or the death penalty?"
Firstly, I don't accept that either abortion or the death penalty are as fundamental as habeas corpus (while I disagree with the latter, even its strongest advocates insist that due process would have to be followed and abortion is a balanced argument about whose rights).
Secondly, to be an accurate analogy, it would have to be because someone was protesting against a CHANGE in the law. I would probably have some sympathy for an MP taking a stance in favour of protecting abortion law or keeping the death penalty abolished (scrapping the latter would involve unratifying the ECHR, something I WOULD feel very strongly about).
Thirdly, this is to completely disregard the tactics behind Davis' decision. It is highly unlikely Davis would have done this had the vote not been as close as it was. His beef was not that he had lost the vote but that the vote had been lost due to a combination of pork barrelling to keep the DUP on board and Labour MPs voting solely on the basis of not undermining their leader.
Fourthly, that would be for the public to decide. It is exceedingly likely that if MPs were to start doing this on a whim every time they disagreed with a decision, they would be treated with contempt. Davis has retained public sympathy precisely because this is an exceptional move under exceptional circumstances.
Personally, I'm not 100% convinced that Davis' move was the right decision either for the cause or himself personally (it's arguable either way). But the idea that it is an attack on representative democracy is laughable. Michael, if representative democracy is your main concern you ought to be more worried about the way our present government undermines it on a daily basis, not the actions of an eccentric.
James Graham
Quaequam Blog!
I value representative democracy but I think ours is broken. As you know, our electoral system means that thhe majority of MPs aren't accountable for their actions. If you think there are more than just civil liberties issues being debated in this by election then surely that is also the case in general elections? How is a government or political party supposed to know that my vote for or against them is about civil liberties and not the NHS or taxation policies?
Fundamentally I do not think it is right that decisions over core constituional issues should be able to made with a majority of one, in the face of cross party opposition.
The government is currently refusing to proceed with the more substantial of Hayden Philips' party funding proposals because there is not cross party consensus, but it's perfectly acceptable to further limit habeas corpus because the government did a deal with the DUP? How is that legitimate?
Of course I absolutely agree that some fundamental structural reforms are necessary to restore faith in the system, but it's all too easy to jump aboard the latest protest vehicle without stopping to think in what direction it might be travelling. I think this by-election sets a very unfortunate precedent, and moreover it is fundamentally unfair. If it's wrong to have the decision made by a government elected with only 35% of the vote - and I naturally I accept this - then how much more wrong is it to contract out the whole decision to a single politically and demographically unrepresentative costituency, the voters of which comprise less than 1% of the national electorate as a whole!
So breaking from 12125, Magna Carta, Habeas Corpus and all the rest of it isjust fine, so long as it's done by cross-party consensus? But if a government makes provision for extending this period in exceptional circumstances - subject to parliamentary and judicial scrutiny- without the approval of the official opposition, this becomes some unholy savaging of British Liberties? And the arbiters of this are to be a few thousand wholly untypical voters out in the East Riding? It's easy to play along with the grain of corrosive popular cynicism, but in so doing, you risk undermining people's confidence in the very idea of representative democracy. Landing the whole notion of British democracy in "deep doo-doo" might "sound like a good idea" to you, James, but I wonder who really stands to benefit from that.
On the role of the DUP, I have seen no-one produce evidence that they were offered anything for their support - I think it's far more likely that they saw that opposing this measure would mean retrospectively undermining their own support for the introduction of internment in Ulster. In any case, the argument that agreements with small parties are somehow illegitimate is exactly the kind of tired old line spun by opponents of PR. I wouldn't want to go down that route
Michael Calderbank.
It's all too easy to jump aboard the latest protest vehicle without stopping to think in what direction it might be travelling.
I don't see anyone jumping on any bandwagons. All I've personally ever said (for that matter, all Unlock Democracy and various souls on OK have ever said) is that David Davis has a point. This has been contorted into a series of mad accusations from certain Labour and leftwing quarters about selling out to the Tories (quite the opposite: it's quite clear Davis did what he did because he couldn't trust his own front bench) and hugging a hanger. In your case you have gone one step further by making the startling claim that a single by-election could destroy representative democracy as we know it. I just wish that were true.
If it's wrong to have the decision made by a government elected with only 35% of the vote - and I naturally I accept this - then how much more wrong is it to contract out the whole decision to a single politically and demographically unrepresentative costituency, the voters of which comprise less than 1% of the national electorate as a whole!
If that were true then of course it would be outrageous. But that is manifestly not what is happening. An individual is seeking to influence the national debate by taking a stand. No-one is suggesting that if Davis wins the by-election Parliament would be forced to scrap plans to extend pre-charge detention and ID cards.
You are confusing hard power with soft power. Taken to its logical conclusion you would have to argue that all by-elections are undemocratic. You would even have to maintain that all petitions are undemocratic. But your premise is so ridiculous that there is little point in taking it to its logical conclusion.
So breaking from 12125, Magna Carta, Habeas Corpus and all the rest of it isjust fine, so long as it's done by cross-party consensus?
You are confusing two principles here. In any constitution worth the name it should be more difficult to change or revoke constitutional law (such as the fundamental relationship between the individual and the state) than other laws. Even in the UK constitution that has always been "convention". In lieu of anything better, that means working on the basis of consensus, i.e. at a minimum two out of the three main parties must agree to it. Of course it would be preferable to have a more formal constitutional framework but we are where we are.
As for whether the government should have compromised habeas corpus in the first place, in my view they shouldn't have, but that is a different point. You can have the best safeguards in the world but if the political class is minded to monkey around with civil liberties it must, ultimately have the right to do so. I set three pre-conditions above and the government has failed all three of them.
The Magna Carta was signed in 1215 by the way - let's not get ahead of ourselves.
But if a government makes provision for extending this period in exceptional circumstances - subject to parliamentary and judicial scrutiny- without the approval of the official opposition, this becomes some unholy savaging of British Liberties?
I don't even begin to recognise that as an accurate description of the Counter-Terrorism Bill. None of the "safeguards" in it amount to proper parliamentary and judicial scrutiny as far as I can see, only formalised reporting. You said earlier you opposed this measure; why are you defending it?
Landing the whole notion of British democracy in "deep doo-doo" might "sound like a good idea" to you, James, but I wonder who really stands to benefit from that.
Last time I looked, our system was already in the mire; haven't you noticed? How is a bit of candidness from MPs about this fact likely to make that any worse? Who benefits from your constant recourse to apologia?
James Graham
Quaequam Blog!
On the DUP: I'm not personally particularly interested in getting into that, but you misunderstand the accusation. The complaint is not that a minority party backed the government; it is about how that support was acquired. Regardless of what did or did not happen, it will be exceedingly difficult to prove either way, so you "I see no ships" defence is a weak one. But I hope you are not suggesting that if we had PR, porkbarrel politics would become the norm in the UK - that would almost certainly kill it off.
James Graham
Quaequam Blog!
I accept there is a point to be made here, but David Davis and the Tories are singularly ill-equipped to be making it. Plus if Davis was serious about his party's readiness for office, wouldn't it have been more logical to take action in 2 years when Home Secretary rather than engage in this kind of easy grandstanding?
Where have I suggested this one by-election could "wreck representative democracy as we know it"? I said if Davis's claims were to be taken seriously, this would set a dangerous precedent. Thankfully, most people will realise that the prevention of terrorism i is too serious a question to be determined by a vain man seeing off the chchallenge from the Church of the Militant Elvis. It's all a little humiliating really. My stance in no way calls into question the proper function of by-elections, namely to fill parliamentary vacancies for an invidual constituency. I just think that our politics is not well served by treating single by-elections as localised referndums on the performance of the government in whatever respect.
You ask me why I'm now "defending" 42 days? I'm doing no such thing. I'm simply countering the accusation that the government has been simply playing fast and loose with our fundamental rights with no regard for democracy. There is a certain validity to the argument that the prime duty of government is to protect the citizens' right to live free from terror attacks and be in a legal position to take necessary action to detain terrorist sususpects. I don't think they have yet made the case that 42 days are necessary in that sense, so I couldn't support it, but neither do I think it's true to say that they have denied all accountability to parliament were such reserve powers to be enforced. It isn't necessary to malign your opponents and deny all validity in their arguments in order to assert something different.
As for "pork barrell" politics, this is essentially pernicious media insinuation and speculation. The politics of alliances is generally smeared by the present commentariat. It ill behoves avowed pluralists to play along.
MichaeC.
Michael - Thanks for your rep;lies. I've had a go at you in my longish piece on DD.
Cheers! Anthony
No worries! Happy to debate - I just tend to hear the bathos in the "David Davis for Freedpm" slogan!
I accept there is a point to be made here, but David Davis and the Tories are singularly ill-equipped to be making it.
What? People should have to pass some kind of exam or purity test before being allowed to make points? If Davis is ill-equipped to make this point, then surely it is behoven on anyone who broadly agrees with him to use this opportunity to make it better?
Where have I suggested this one by-election could "wreck representative democracy as we know it"?
Er, in the title of this article and throughout the article itself. Your whole article is based on the premise that this action is a threat to the "integrity" (your word) of representative democracy. Stop wriggling.
As for "pork barrell" politics, this is essentially pernicious media insinuation and speculation. The politics of alliances is generally smeared by the present commentariat. It ill behoves avowed pluralists to play along.
Is it? It seems pretty well grounded if you ask me, and it isn't even the first time it has been made (it is widely known for example that the peace talks in NI last year were as much concerned with local government spending and water charges as they were to do with weapons and the police force). The DUP have been playing a canny game for a while now; it is only reasonable that they get called out on it every once in a while.
It is an utter nonsense to call this pluralist politics - it was about quid pro quo, nothing else. To suggest that all forms of inter-party agreements should be beyond criticism and immune from scrutiny is to undermine true partnership politics. How can you seriously, in all good conscience, compare that vote with the sort of formal coalition arrangements we have seen in Scotland and Wales in recent years?
James Graham
Quaequam Blog!
No wriggling on the main premise - which was, is and will continue to be that if Davis, his supporters and fellow travellers have their way this would indeed help to undermine the integrity of representative democracy. But thankfully they haven't and won't. Yes, we should make the point better, and with better methods than stunt by-elections.
On the DUP - I have nowhere claimed that all alliances should be immune from criticism (have you a straw-man production factory there James?) But if criticisms are to be made, they should be made on the basis of fact not innuendo and smear.
Michael..
if Davis, his supporters and fellow travellers have their way this would indeed help to undermine the integrity of representative democracy.
In other words this by-election could "wreck representative democracy as we know it." What is the difference?
I have nowhere claimed that all alliances should be immune from criticism
Weeeell, you have said that "the argument that agreements with small parties are somehow illegitimate is exactly the kind of tired old line spun by opponents of PR" which sounds pretty absolutist to me. You then went on to say "As for 'pork barrell' politics, this is essentially pernicious media insinuation and speculation. The politics of alliances is generally smeared by the present commentariat. It ill behoves avowed pluralists to play along." Again, the clear implication is that we shouldn't criticise them for fear of undermining arguments for more pluralism in general.
if criticisms are to be made, they should be made on the basis of fact not innuendo and smear.
I reject that totally. It is based on well founded suspicion, based on past experience. In 2005, the DUP rejected extending pre-trial detention to 60 days, backing instead the 28 days option. Why the sudden change of heart?
It is also accepted that the deals leading up to last year's peace accord in Northern Ireland was won because of deals over local government spending and, most prosaicly, the water rates (link).
We can't possibly know what has been said in private meetings between, eg. Peter Robinson and Gordon Brown, so your demand for solid evidence is disingenuous. It is reasonable to suspect there may have been some kind of quid pro quo on the basis that the government was under pressure and past DUP behaviour. Indeed, many defenders of the DUP (Slugger, Michael White) aren't denying that a deal was made but rather defend their right to make one. To some extent I see their point, which is why I didn't raise the issue in the first place. To accuse anyone who suspects a deal was done of smearing and being pernicious is to tar them with the same brush.
As you say, under PR inter-party deals would be the norm not the exception. That will only work if each and every one of them comes under scrutiny, open to criticism and that the parties involved behave sensibly. That's why, in both Scotland and Wales, coalitions have been negotiated in relatively open and transparent ways, spelling out the precise terms of the negotiation. The sort of "partnership" we saw over the counter-terrorism bill last month doesn't even begin to compare and I am genuinely surprised that you think it does.
James Graham
Quaequam Blog!
You "totally reject" the idea that criticisms should be groudned by the facts!! Brave of you to admit it. It's far from clear whether there was any deal whatsoever (the PM said discussions related solely to the merits of the case), but even if parallel discussions on other matters regarding the legislative programme were held, it is far from clear whether that is anything untoward. Intra-party deals are part and parcel of governance under FPTP and this can extend to forces beyond where there is a smaller majority.
Other than the leak of the Geoff Hoon letter - which suggests only a poorly judged sense of when to be ironic, or an alarming failure to spot ambiguity - I dn't see what the general suspicions are based on. I am not holding this deal up as a paragon of consensual politics - just suggesting that parties can agree without illicit methods of persuasions or do deals without their being anything dodgy about it. Bracket for a moment the truth/falsity on this occasion - and let's assume a hypothetical agreement in similar circumsances where a deal was struck in a completely clean, principled manner. How would it be possible in such a case if a government be able to disprove allegations that something dodgy was afoot?
And on the main argument, the condtional "if" means everything! If Davis's example was regarded as a model for future interventions it would have serious implications. Thankfully, his opportunism seems to have backfired and there won't be any more lemmings ready to follow him over the cliff.
The conditional "if" means everything - it could have undermined representative democracy, but only assuming others thought the tactic a good one worth pursuing in the future. But thankfully it is unlikely that Davis's example will be one his fellow MPs are likely to repeat in a hurry.
There are plenty of facts - I've pointed you to a number and there are plenty more out there - you just insist on ignoring them or belittling them (as in the case of the Hoon letter). You have a smoking gun presented to you and insist it is a cigar - I can't really help you. You only see what you want to see.
If your whole argument is predicated on the idea that David Davis' actions might become the norm, that is ridiculous as no-one is suggesting they should become the norm. This was an extraordinary action based on extraordinary circumstances. As I said above, I'm not convinced it was necessarily the right one, but claiming it was dangerous on the basis that it might have lead to X if Y were to happen in addition is just laughable.
Rather than criticise others for taking a stand, since you claim to oppose 42 days, what would you have people do as an alternative? Do you have one?
James Graham
Quaequam Blog!
Your claim that Davis's actions are "exceptional" is vulnerable to precisely the same attacks the the government's legislation is - who defines what constitutes "exceptionality"? Were people to have thought Davis's campaign was successful, what would there be to others pulling the same trick on whatever other "exceptional" populist cause celebres crop up? I wasn't claiming it would be the "norm", just that a precedent would have been set, and therefore it could have legitimised opportunist appeals to "exceptional" circumstances in the future,
and alternatives? Well one alternative would have been for David Davis to have stayed in post and rescind the legislation once there is a Tory government. Going forward, should the reserve powers be triggered, then any instance of someone being detained for more than 28 days and then being released without charge, could be the occasion for a national campaign of civil disobedience.
I've gone back over the thread to look for "facts" - the Hoon letter, is the only evidence anyone has produced, but just what it is evidence of (corrpution, or a bad sense of humour) is a matter of interepretation and doesn't get us any further. .
MJC
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