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After the dishonesty of the referendum campaign, the simplistic boasts of the negotiations about how easy securing Britain’s future would be, and the humiliating chaos of parliamentary proceedings on the Withdrawal Agreement, it is no wonder that the public and our businesses are in such despair at politicians.

Our politics has failed. There is a piece to be written about the way in which Brexit has highlighted and increased pressure on the failure of our democracy and its institutions, but this is not it.

At the time of writing there are just 400 hours until we are due to exit the European Union. If our politicians manage Thatcher levels of sleep – which are probably not the most useful preparation for what must be done over the next 16 days – that leaves just 333 hours in which to do the work. Those that see theological evils in the European Union can be reassured that we can’t even do the ‘Number of the Beast’ properly.

Politicians have dressed their failure with all sorts of unicorn promises about better deals (the ERG and Labour), blame for not getting behind the Prime Minister (Remainers, the ERG and the DUP), and consistent can-kicking (everyone). Each of these groups is flailing around and screaming louder and louder as the ratchet of the clock tightens and the scale of the political problems in taking a decision – any decision – becomes clear. Daniel Finkelstein’s article in the Times today demonstrates the political calculations for just the Conservative Party underlying decisions which should be about the national interest in this mess. Similar calculations apply to Labour and in different ways to all parties.

These challenges will form a fascinating and complicated Venn diagram for future students of political science to study. However, there is no time left for that pontification now. Having proved unsurprisingly so comprehensively incapable of translating a binary, advisory referendum into a complex and lasting solution that commands political support, and having destroyed public trust in our politics in the process, MPs have a very small window in which they can show leadership and re-establish any measure of trust.

Today’s Order Paper is depressing. The Prime Minister’s politically confusing motion states the legal reality of what happens if no deal occurs. The response of the senior, cross-party group of MPs, who cannot agree on a way forward, is to kick the can down the road yet again, tabling an amendment that simply takes no deal off the table and ignores that legal reality. And tomorrow the Commons will vote on a motion for an extension and almost certainly do so without agreeing on a way forward that offers clarity to the public or Brussels. Even now, MPs are pretending to the public that we can secure an extension to continue this torturous farce by simply passing a motion in the House of Commons.

It is time for MPs to be honest about the options – and there are only three that make any sense, the Prime Minister’s deal having been rejected by Parliament so completely on two occasions:

  1. A hard Brexit with no deal;
  2. A revocation of Article 50 and remaining;
  3. A further referendum on the terms of the Prime Minister’s deal or remaining.

It is no good Labour’s lamentable front bench wittering on about another deal. It is no good ERGers bombastically proclaiming there are better ways to negotiate Brexit.

Brussels has been clear: there is no room for further negotiation. None at all. The talking is done.

There is also no transition without a deal.

And there is no extension without a credible and decisive way forward.

Politicians have sold the public varying visions of Britain’s future on the basis of gross oversimplification, to protect their own political interests. They must now grasp the nettle of the consequences of their untruths, and show the public they understand the clear choices they face, however difficult they are to make.

Yes, it will be politically painful. Yes, it might have destructive consequences for our political institutions – our parliament, our electoral system, and our failing ‘broad church’ political parties – but that is the price politicians must pay for their comprehensive failure.

 And that might just be a good thing.

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Introduction

In its fourth term, the post-Soviet Polish Sejm saw 1,264 bills introduced.

That would tax the skills of even this draconian Labour Government’s business managers. However, we had our own little version of this un-democracy this week. And no-one should be under any illusion about the threat to our liberties and our democracy that this cosy procedural stitch-up between Labour and the Conservatives has become.

It is not something that might happen. It has happened. Laws have been passed without scrutiny that further erode our civil liberties and, were we talking about Eastern Germany under the Staatssicherheit, we would be loftily condemning the extension of police state powers.

It is called the “wash-up”.

What is “wash-up”?

Before I can explore it further, you need to understand “wash-up”, the procedural insanity that has been conducted in increasingly authoritarian fashion by successive Labour governments – and colluded in entirely by the Conservative opposition – at the fag-end of a Parliament.

Its academic presentation is entirely respectable: a government has a manifesto that it has promised to deliver and so it is important to secure the passage of as much of that as possible, even though time has run out. Therefore, the political parties are invited to “negotiate” over the content of bills, agreeing which bits to drop and which bits to pass, as there will have to be a lot of business to get the bills through Parliament in two days and not much time for votes. (Bills are not laws until they become acts and, simply put, that can’t happen until they have been voted through by both the Commons and the Lords in the same version. If you are interested, the Parliamentary Education Service has an extensive paper on how laws are made.)

The reality, though, is very different.

Labour and the Conservatives negotiate, the Liberal Democrats are notified – and no-one else is given a look-in.

There is a lot of myth and misconception around “wash-up”, which is happily perpetuated by those political parties – and government officials – who like the simplicity of an institutionalised duopoly (Labour and the  Conservatives). You hear and read a lot about “veto”, especially this time from the Conservatives, who, as Her Majesty’s Loyal Opposition, proclaim loudly when they claim to have forced concessions from Government. (They seem desperate to maintain the sense of entitlement to office that lofty allusion to convention and institution helps confer, especially with the political illiterati in the media.)

That is all bunkum.

There is no constitutional veto wielded by the Official Opposition. The only thing that actually matters are the votes to secure passage of legislation. And it is these that are informed by the earlier negotiations.

The Lords can do whatever it wants, all by simple majority. If it decides it wants to do it, it can.

Of course, it is all much easier to simply carve up decisions between the two old pals, who between them have a majority of votes…

“Cut and shut” legislation

In the Commons, where Labour had a majority, the Government should have been able to deliver its legislation, assuming its MPs had confidence in it.

In the Lords the situation is more complicated as no-one has a majority.

In the Lords the Government has two choices: play along with the confidence trick of “constitutional convention” where none really exists and accede to the Tories wishes; or have the bottle to deliver legislation by entering into discussions with all political parties and those peers on the crossbenches.

It was Labour’s decision to do grubby deals by dodgy handshakes with the Tories,  perpetuating the two-party cosiness.

Worse, they rail-roaded through a bunch of stuff they hadn’t put in any manifesto – either of them.

It is this cowardly, unprincipled wheeling and dealing with our civil liberties and fundamental British freedoms that leaves those genuinely committed to reform despairing at Labour’s lack of resolve and failure to deliver.

For a more graphic image, try looking at it like this.

Imagine the Government Chief Whip as an auctioneer of second-hand cars. Imagine the Tory Chief Whip as a second-hand car dealer at the Government Chief Whip’s auction. The laws that emerge are the product of some last minute chopping and changing between the two of them. The public then find themselves the proud recipients of however many “cut and shut” Acts of Parliament as have been haggled over. (Auto Express warns readers that a “cut and shut” is a deception with no guarantees of structural integrity, safety or handling. Readers musing on this analogy to “wash-up” can draw their own alarming conclusions.)

So how did “wash-up” 2010 work?

First of all, on Tuesday, Harriet Harman made a statement to the House of Commons setting out which bills would be considered and how much time each bill would get.

It was draconian beyond belief.

She announced that in its final two sitting days, the Commons would consider a business motion, thirteen bills and, for good measure, a motion amending the Misuse of Drugs (1971) Act. Amongst those laws being rushed through were the Digital Economy Bill, the Constitutional Reform and Governance Bill and the Crime and Security Bill. All of these are major pieces of legislation, with far-reaching implications for our lives, our communities and the way we govern Britain.

Normally, any one of these would have been subject to many, many hours of debate in the Commons. But not in “wash-up”. For example, the Finance Bill received the longest amount of time: just three hours.

When Labour were in opposition, in 1992, Margaret Beckett raised concerns that they had just four hours to discuss eleven clauses of the Finance Bill.

In 2010, Labour and the Conservatives agreed a timetable that meant that there were just three hours for a second reading and discussion of 73 clauses and 22 schedules of the Finance Bill.

Most bills received just one hour.

Absolute procedural insanity.

It is unbelievable that in 21st Century Britain we allow our lawmakers to pass laws in this way.

If you are not outraged by this travesty of democracy, you should be.

The timetable motion is worth exploring a little further because it reveals the depths of collusion between Labour and the Tories. Debating the Finance Bill, Mark Hoban, speaking for the Tories, tried to make out this was all the Government’s fault and attacked Nick Brown, the Government Chief Whip, attributing Margaret Beckett’s words from 1992 incorrectly to him.

What is remarkable and utterly bizarre about this little tirade is that hours earlier, Mark Hoban’s Conservatives had whipped Conservative MPs through the lobbies in support of this timetable!

As you can see from the division list, the only party united in opposition was the Liberal Democrats, supported by a handful of Labour rebels and Tory mavericks.

The bits that got through – and the bits that should have, but didn’t

These are some highlights of dozens of stitched-up proposals which were rushed through “wash-up” in various bills, despite Liberal Democrat opposition:

Crime and Security Act

  • Draconian DNA provisions in respect of innocent people.
  • The further criminalisation of children.

Digital Economy Act

  • Website-blocking.
  • Bandwidth-throttling and internet disconnection.

Finance Act

  • Secret interception of packages sent in the mail.

These are proposals which were dropped from various bills or business in “wash-up”, despite Liberal Democrat opposition:

Constitutional Reform and Governance Act

  • Reform of the restrictions on the right to protest in the vicinity of Parliament were dropped, maintaining the current infringement of our freedom to protest.
  • A referendum on the voting system (very weirdly the Government were voting yesterday to remove the referendum from their own bill, having announced the day before that they would have a referendum).
  • Powers for the House of Lords to expel peers convicted of criminal offences (so any peers currently facing criminal charges can breathe a sigh of relief – the day job is safe).

Wright Committee Reforms

  • Whilst there was room for thirteen bills and an order, there wasn’t room for the Standing Order changes that had already been discussed and which would have prevented fiascos such as the Digital Economy Bill.

A detailed example of abuse of “wash-up” (or “How Conservatives and Labour colluded to open your post” [packages only, of course, for now])

Back up a bit.

Yes.

You read that right.

The Conservative Party and the Labour Government conspired to change fundamentally the way our postal system works and allow Revenue and Customs to open any package they “suspect” “may” contain something it shouldn’t.

So this is “goods” and applies to “packages” in this instance. But how long before – in the interests of national security of course – the Government feel it is necessary to extend powers of intercept to some new commissioners? And it becomes applicable to written correspondence?

Impossible?

I don’t think so.

Liberal Democrat MP Evan Harris challenged the Government over it last night and the Government minister flustered and said it was all about tobacco smuggling.

Ok.

Take a look below at a note I did, marking out the changes to the Postal Services Act 2000:

There is nothing about tobacco smuggling in it. There are no restrictions in fact on content or size of package. And all the safeguards about the recipient being present or notified are removed. As Henry Porter wrote in the Guardian recently: “We must ask ourselves how many more rights are seized by government and its agencies before Britain becomes the GDR’s most obvious European imitator.”

Because it was Clause 59 of the Finance Bill, and there were only three hours for debate, it didn’t get reached for discussion. In fact, by the time MPs got on to the bit where they consider the bill in detail, line-by-line, there were only 28 minutes left to look at the whole bill.

Think about that for a moment.

28 minutes for a line-by-line examination of the bill that would usually – for the Finance Bill – take months in Committee.

This change to the law was made without a single second of proper scrutiny – and without a single vote. Worse, it was made without even the opportunity for a vote.

And that is what the Conservative Party and Labour Party wanted.

Coda

This is your democracy. This is your Parliament.

This is the system that has served the Conservative and Labour parties very nicely  over the years and that the Liberal Democrats have consistently wanted to change.

We have been consistently opposed by both of them.

So when you get angry about the website-blocking powers in the Digital Economy Act, or outraged that corrupt peers will be able to still sit in the House of Lords even after a criminal conviction, remember which two parties colluded to work this all out: the Conservative Party and the Labour Party.

Think about the Postal Services Act 2000 and the Finance Act 2010.

Don’t get angry at the failure of reformers to reform a system that they are consistently blocked from changing by the Old Pals’ act.

Instead, vote for more reformers.

Vote for more Liberal Democrats.

And take back your Parliament.

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