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.