Is "good government" possible?

Ronald Reagan once stated (actually I think he kept on saying it!) that "government is not the solution to our problem; government is the problem." It's a view that many people hold today. I have to say right from the start - it is not a view I share.

Yet we hear so much about cost overruns; corruption; blunders; if not sheer incompetence. It's not limited to a particular government; or even system of government - I subscribe to The Guardian (UK); Le Monde (France); New York Times (UK); and "European Voice" (EU). Very different systems are reported upon - but the stories are so familiar.

Is it a question of complexity? Our modern world is so complicated - that it may be impossible for any institutions to attempt to keep everything working at the same time. Some people argue that only unrestricted market forces can bring about the optimum results. Frankly, that seems to me to be complete rubbish. History is full of examples of the follies and disasters brought about by unregulated markets. If you want scandals, swindles; abuse of power - read any economic history. I remember reading Professor Galbraith's argument that modern economic history demonstrates a recurring cycle - scandal & crashes (from the South Sea Bubble to...applying his thesis - the Banking crisis of recent years), followed by government intervention to save the system and regulations to stop the same thing happening again - followed inevitably by demands for the relaxing of regulations - leading to new scandals and crashes. Public officials are (rightly) held to much higher ethical standards than business requires.

Certainly complexity is one of a (series) of problems - but can it explain the role of abuse of power and scandal?

I think that we have to accept the first part of Lord Acton's dictum that "POWER TENDS TO CORRUPT, absolute power corrupts absolutely." There are various ways that systems can seek to temper the downside of Human Nature.

Constitutional Law has its role to play. A constitution can set limits on power, and rules which invalidate actions which breach the Constitution. Most states have a single document which sets out the main rules. However that single document is not the complete statement of constitutional law. The US Constitution has been interpreted and applied by the Courts, particularly the US Supreme Court. Constitutional conventions can exist. Until Franklin Roosevelt ran for a third term it was a convention that Presidents served no more than two terms. He broke it, and a constitutional amendment was subsequently passed. Legal remedies may work (but may not be safe in the hands of clever lawyers), but sometimes other pressures encourage compliance. "Conventions" in the UK play this role - they are not legally enforceable, but constitutional actors regard themselves bound by the convention. They are effective when they mean that the cost of breaking the convention outweighs any short term advantage. The Queen could refuse to give the Royal Assent to a bill passed by Parliament (was she tempted when the Hunting Bill was passed?) - but the cost would be the loss of the unchallenged role that the Crown plays.

Ethics rules can play a role. While we might complain about our current politicians being a bunch of rogues - they are actually 'cleaner' than most generations in history. Many scandals of the last 40 years involve behaviour that, thanks to ethics rules, are forbidden - previously these practices were regarded as normal political behaviour.

"Accountability" is a requirement that can reduce scandal and show up incompetence. There is an important role for investigative committees - in Congress committees play an important role in questioning decisions; and requiring officials and others to justify their actions. Within constraints the Departmental Select Committees in the House of Commons can do the same. They are aided by professional support bodies - the GAO (Government Accountability Office) in the USA and the NAO (National Audit Office) in the UK.

In England MPs and Councillors can ask questions of officials carrying out policies; and the decision makers who have adopted policies - and demand answers. Sometimes the press can play a role in uncovering sharp practices and incompetence. There are also various organisations seeking to hold decision makers to account - such as the USA's Common Cause.

We don't live in a perfect world - and Human Nature can be deeply flawed - but in democracies - where power belongs to its citizens - we each have a responsibility (to ourselves and to others) to see that power is accountable to us.

Could Watergate Happen Again?

This series began with my concerns about the dangers of abuses of power. We need to be eternally vigilant. Last week, as part of an anniversary event, the question was posed - Could Watergate happen again?




My argument is that there will always be the temptation to abuse power - and human nature being what it is - such abuse will be self-justified. Since Watergate we had the Iran-Contra Affair - in my view a more serious matter. The participants broke the law; lied to the American people - but convinced themselves that what they were doing was right.

We need investigative journalism; we need active committees (and their members and staff) in Legislatures; most of all we need people to demand accountability.

That Commons Financial Privilege Debate

The Lords Hansard is now available here. Lord Strathclyde began

"My Lords, I beg to move the Motion on behalf of my noble friend Lord Freud. I also felt that it might be a useful opportunity for me as Leader of the House to say a few words about the relationship between the two Houses and, in particular, the financial privilege of the House of Commons. After all, this being Valentine's Day, it is not a bad time to talk about relationships.

Perhaps I may begin by commending to the House the statement made by the noble Baroness, Lady Royall of Blaisdon, on 10 February 2009. Everything I say today is based on that material and I am grateful that there is not an inch between us. I also commend the paper on the subject by the Clerk of the Parliaments of 10 February 2009 (see appendix 2 of this document), yesterday's update by the current Clerk of the Parliaments, and the note published by the Clerk of the House of Commons last Thursday. All three documents are available in the Library and online. They all accord with each other and clearly set out the position, which I shall now try to do with something approaching the same clarity and accuracy...."

As you will see it was a likely discussion with some serious concerns raised. Baroness Royall said:

"The Government's majority in the Commons means that politically in practice the Government have a huge influence on whether the Commons waives its financial privilege. It is therefore appropriate for this House to consider these issues and the issues arising in relation to the role of this House in the legislative process. However, I suggest that today is not the time to have such a discussion. I know that many Members from all sides of your Lordships' House-very much including those on the government Benches-are concerned about these wider matters and want to debate and discuss them. I know this because many noble Lords have come to see me about this issue."

Baroness Boothroyd, the former Speaker of the House of Commons, said:

"I certainly do not challenge the primacy of the elected Chamber and its control over financial policy. Neither do I intend the role of this House to be neglected as the revising Chamber with special responsibilities for the scrutiny of the legislation that comes to us.

The constitution of our country operates by convention. The Leader of the House talked about relationships on this special day, but I remind him that this is a bicameral Parliament; it operates by negotiation, by the ways and means of getting things done. Where were the usual channels during all this? The usual channels assist good relations not only between political parties but between the two Houses. By good will and by negotiation, they might have arrived at some compromise on the amendments to this Bill rather than have the Government behave in what I regard as the very heavy-handed manner that we witnessed the other week."

It may have been a skirmish - but there is a real war going on over the British Constitution. Legislation was rushed through extending the length of Parliaments (from a MAXIMUM of 5 years - not often reached to a fixed term of 5 years); this Session - which would normally only last 12 months - but has often been extended by a few months in the first session previously - will now last an incredible TWO YEARS. A massive programme of radical change has been pushed through the Commons with debate curtailed by "Programme Motions" - and the House of Lords threatened when it has sought to exercise the scrutiny that the Commons has been barred from giving. There are interesting times ahead...

Is now the time?

Events in recent months provide good arguments for the adoption of a written constitution - for Britain. The UK has traditionally relied upon "conventions" (legally unenforceable rules - but which all actors in the constitutional system regard as binding.) to check the abuse of power. In other words - and it has been surprisingly effective - 'good' behaviour is maintained because 'Englishmen don't do THAT sort of thing'. There are many theories why this, in effect social pressure, has worked. [warning to my students - in forthcoming tutorials I'll be discussing this in detail!]

But the weakness of this approach is becoming increasingly obvious. Social sanctions may not be enforced, or be effective in the face of someone determined to ignore the conventions. This is highlighted by the Coalition's approach to Parliament. {Now, I'm not saying that the previous Labour Government was virtuous in this respect, it too pushed legislation through too fast and without adequate scrutiny} - but the actions of the Coalition have become worrying.

This is best illustrated (though this is an example - it illustrates a pattern of behaviour) with the Parliamentary Voting System and Constituencies Bill. There was no pre-legislative scrutiny (understandable, as the Coalition was only created and entered power last May), but that should have meant a more measured approach for the bill in Parliament. Instead two very important constitutional measures were welded together . Both measures merit detailed scrutiny. Instead the bill was rammed through the Commons. I recommend reading the 1st and 3rd reports of the all-party Select Committee on Political & Constitutional Reform. There is now a serious crisis in the House of Lords as Peers seek to give the proposals the scrutiny they were denied in the Commons.

At issue are proposals to
(1) reduce the number of seats in the House of Commons by almost 10%
(2) major changes in the rules for redrawing constituency (distric) boundaries - an issue many British people have not yet appreciated the significance of
(3) the abolition of public inquiries as part of the redistricting process
(4) the speed at which the next Review must be completed - before the next election. It had previously been a more measured process - allowing for consultation and debate.
The term "gerrymandering" has ben raised many times - something the Brits have tried to avoid.

The Coalition's response to demands for more than cursory scrutiny has been to pack the Lords with new Coalition-supporting peers - so it will be nigh on impossible for it to be defeated (a break with the understanding between 1999 and 2010 that a Government should NOT have a working majority); to ignore the usual intervals between the stages of a bill - steamrolling debate - and moving closure motions - something not done for over 20 years, then twice in one week.

We can only rely on an "unwritten constitution" where the Government of the day respects the conventions and practices which protect against the bulldozing of controversial legislation (and to be honest that system hasn't been very effective for the last 40 years). Perhaps we now need to consider written, legally enforceable rules - because our trust in fair play and respect for the unwritten rules has been destroyed.

Filibuster Reform

The Filibuster is a honoured safeguard of the rights of the minority against the majority. This safeguard has existed at Westminster and in Congress - though weakened in all but the Senate. The reason that filibusters have become more difficult (or impossible) to mount in most chambers, is that abuse of the filibuster led to decisions to reduce the power.

It remains in the Senate - and is there under threat for the same reason. A tool designed for rare occasions has become the everyday tool of resisting the overwhelming majority. The Irish Nationalists in the 19th Century weakened the rights of minorities in Parliament for ever, over a cause that is no longer an issue. Demonstrating is one thing, but when a legislative body is unable to function, action needs to be taken. Unless some Senators start treating this exceptional power with respect, they will force changes that will hurt minorities, and the Senate itself - forever.

This article appeared in "The Hill" last week.

http://thehill.com/homenews/senate/77479-filibuster-reform-headed-for-senate-floor-faces-uphill-battle