Debate the death penalty – and then move on to the rule of law

Parliament may debate but it cannot in fact introduce capital punishment.
Anthony Barnett
Anthony Barnett
9 August 2011

What to make of e-petitions telling parliament what to debate if they get 100,000 signatures? What should we think about the return of the death penalty being the lead issue? Are we looking at yet another humiliating gimmick that displays the constitutional backwardness of the UK in the name of "popular involvement"? The simple answer to the last question is "yes". This is another round in an old game whereby the political elite in effect taunts us with our impotence. It stirs up the worst aspects of British prejudice in the process and then, in effect, stands back and says, "You see! The people cannot be trusted."

The best response is to welcome a vigorous debate on the death penalty. Hanging innocent people, failing to deter the murderous among us, imposing revenge, stirring up hatred and deceit, making ourselves inhuman, all this follows from the death penalty, which feeds irrational politics (see the US).

It is an argument we can win decisively on a popular scale and one that we need to win as well. Doing so will disappoint two key groups: the tabloidites who think they represent "real people" but like expanding the dark side where they feel at home, and the traditional establishment who are their accomplices in popular denigration. The two support and need each other – the one through its populism the other through its paternalism. Both are opponents of grown-up democracy. The populists need the toffs to justify their anger at the patronising, undemocratic way we are governed. The toffs need the tabloidites to prove that they are guarding the gates from the barbarians. We should not forget that it was their unholy alliance that delivered us into the Iraq war. Neither like to be reminded that the public was wiser in its judgment in opposing that war.

Parliamentary petitions modernise and intensify the old reactionary political culture rather than replacing it. The notion of the petition takes us back to the "popular touch" of monarchy with cult of supplication. It is a device of subjecthood, not citizenship. It delivers neither democratic power nor popular deliberation. It reproduces the backwardness of Britain in constitutional terms. Indeed, by taking the UK in a plebiscitary direction, it infantilises voters and weakens understanding of democracy. For this does not mean the rule of majority, which has long been known as another form of tyranny; "democracy is constitutional or it is nothing". It protects minority rights and entrenches fundamental laws. To take a current issue it is illegal to torture people. Even if 90% of the public supported British officials torturing people, those 90% would be supporting something illegal.

Should parliament be allowed to debate motions that break the law? Certainly, this is a free country and people are permitted to discuss doing wrong things. But just like us, parliament is forbidden from breaking the law. Of course, I am assuming that there is a law that is higher than parliament. Constitutional experts may assure us that this is not the case, but if they tried to do so they would be wrong. The European court of human rights has arguably ruled that the death penalty does in fact contravene the European convention to which we are signatories and it is therefore illegal. In which case parliament may debate but it cannot in fact introduce the death penalty.

Two debates are badly needed, therefore. One is to have as wide and deep an argument as possible over the death penalty, which will embrace constitutional issues, the nature of the state, and our powers as citizens. The second, which follows from this, is to have a public debate on the need for and nature of the rule of law and the distinctive place of fundamental human rights. Which means that it is handy to have a target that will encourage campaigns to reach out and win the public to the issues that matter to them, to stir people up and even increase their dissatisfaction with parliament as it fails them even more visibly.

How would I organise petitions? I'd do two things. First, I'd set a target, like 500,000, which would oblige parliament to debate and vote on questions that qualify (and I'd have an open jury deciding whether a petition qualified for a legislation); second, I'd allow any citizen only one personal vote of support to a petition every year (so it becomes a choice that matters to you).

Cross-posted with thanks from the Liberty Central section of Guardian's Comment is Free.

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