Physician, heal thyself: Britain, democracy and the EU

The European Union is always slated as undemocratic (or anti-democratic). And its democratic credentials aren’t perfect: far from it. But the vast majority of EU legislation is passed by a directly elected Parliament and a Council representing 28 EU governments; the Commission President in 2014 was chosen on the back of the Parliament’s election results; and every Member State can appoint its own Commissioner. Further, if we have a problem with how democratic our relationship with the EU is or isn’t, shouldn’t we think about what we can do about it, rather than just moaning about Brussels?

You might think that improvements would all require Treaty change or unanimous consent from governments. But precisely because the EU actually isn’t an ultra-centralist state, there is actually quite a lot the UK could do on its own to make its MEPs and its government more accountable in Brussels.

European Parliament

The UK has 72 MEPs in the European Parliament: more than any other country except Germany and France. The British media loves to portray the Parliament as toothless and useless, but it actually has power and uses it. In 1999, it forced the resignation of the whole European Commission; in 2004-05, it radically watered down the Services Directive; in 2010, it rejected the SWIFT accord with the US until data protection changes were made. In 2014, it succeeded in ensuring that the leading candidate put forward in the European elections for Commission President got the job.

So the Parliament isn’t just a cypher. It’s not perfect: leaving the famous ‘single seat‘ issue aside, it’s hard to argue that most voters pick their MEPs on European issues. We don’t have a ‘European electorate’ voting on the issues the Parliament can affect, which inevitably affects its legitimacy. It’s probably also true that, especially with longer-serving MEPs, many tend towards a much more integrationist or federalist position than their voters at home (and, indeed, that of their national parties). The UK’s position in the European Parliament also suffers from the behaviour of many of its political parties.

The UK and its parties could and should do more, though, to both fix this and to re-engage with the Parliament. First, its political parties need to do more with the seats they’ve got in Brussels. In particular, one of David Cameron’s most stupid mistakes was to take his MEPs out of the main centre-right grouping in the Parliament (the EPP-ED at the time) and create a smaller, more right-wing and less influential group instead. Cameron said this needed to be done because the EPP was far more federalist than the British Conservatives, which indeed it is, but the Tories could already take a separate line on those issues, and the Parliament doesn’t get to decide on what powers the EU should have anyway. The result is that the UK has no direct influence on what the single largest bloc of MEPs does.

The fact that the UK now uses PR to elect its MEPs is a good thing and means that most voters have an MEP from a party they voted for. We have, however, managed to choose one of the worst possible forms of PR, meaning voters have no way to choose a particular candidate – so there’s no reward for constituency work, or raising issues voters care about in Brussels. If we don’t want to move towards the single transferable vote, we could at least have an open list system, so people can choose particular MEPs.

Finally, if we’re worried about MEPs ‘going native’, we might ask whether it’s really a good thing to have MEPs who can potentially spend 20 years in post (especially under a list system). I normally oppose term limits: re-election (or not) helps accountability. But if we’re worried about the gap between MEPs and their voters, and we know the public don’t tend to vote on European issues, then we might think about whether making sure they don’t spend too long in the Parliament might keep them more in touch with their constituents. I think this could be done within EU law – and even if we don’t want to put it in statute, political parties could try it out themselves, perhaps banning any candidate who has served in the last two terms from being selected again.

Council of Ministers

The Council is made up of ministers from each EU government. Like everyone else, the UK’s government is represented in all decisions which include the UK. Legislative sessions are held in public, though of course they very rarely hit the headlines. Of course, plenty of negotiating isn’t done in public – but that’s the nature of any deal-making anywhere, from the UN to the Good Friday Agreement.

Britain usually gets a compromise it’ll vote for – the share has fallen a bit in recent years, due partly to the relative lack of interest the UK Government has shown in building alliances since 2010, but the UK is still on the ‘winning side’ the vast majority of the time. In fact, governments agree unanimously most of the time – and the more a government cares, the less willing others are to override it. It’s true that in order to get what you want in the EU, you need friends and allies: it’s also true that Cameron’s Government has been notably inept on this front until very recently.

The most obvious solution is for the Government to re-engage, and to do it properly – not just in a crisis. The EU renegotiation shows that Cameron can do shuttle diplomacy: but it’s not good enough to do it at the last minute for one short-term objective. Blair’s government played its hand far better – promoting enlargement, generally taking much greater care to cultivate new EU members, working closely with France on security and defence and building stronger relations with Germany too. You might even argue it was too successful: by 2004-05, the French public and commentariat were fretting about l’Europe libérale or l’Europe anglo-saxone, with dramatic consequences.

If British governments need to play the game better, so do British parliamentarians. The House of Lords’ European Scrutiny Committee gets lots of credit for providing learned reports – but in terms of actual power, our MPs exercise relatively little control over their ministers’ actions in Brussels. That isn’t the EU’s fault: DenmarkFinland and others have EU Committees which can mandate their representatives, setting out negotiating remits and key priorities and involving Parliament in the decisions. We can debate how far to take it, but why can’t we do something similar? We have statements after meetings of the European Council: why can’t we have a ‘State of the EU’ debate every year, where the Government sets out its priorities at EU level – not permanently obsessing about where powers lie, but talking about what to do with them? If Eurosceptics feel power is moving away from Westminster, they need to make it better at watching what’s done in its name.

European Commission

The Commission, home of the famous ‘unelected bureaucrats’, probably takes more flak than any other institution. It’s worth just pointing out that governments nominate a Commissioner each: Jonathan Hill, the Commissioner with responsibility for financial services, was ours this time round. Further, the European Parliament actually managed a major coup in 2014, linking the choice of Commission President to the election results to the Parliament. The British parties failed to engage with the whole process, but Jean-Claude Juncker’s appointment is more closely linked to (and, in fact, dependent on) an election result than any previous one.

Given that the President of the Commission is a major role, and since direct election clearly isn’t on the cards, British parties should engage more with the process of choosing Commission candidates. Last time, the Conservatives’ self-imposed isolation meant they had no role at all in the choice of a candidate; Labour scrabbled to try and find any alternative to Martin Schulz, without success. (Taking the process more seriously is important for all EU governments and national parties, not just the British: apart from anything else, more engagement might produce less uninspiring candidates.)

In the meantime, why can’t we do more to open up our choice of Commissioner to scrutiny? Could British MPs hold public hearings for candidates for the UK post? Could the House of Commons nominate or elect the British candidate? Again, the UK Government acts in this area with very little input from parliamentarians: and again, the issue is less to do with Brussels and more to do with MPs keeping their own ministers on a tighter leash.

Court of Justice

Finally, the European Court of Justice is often attacked by anti-Europeans. First, the principle: EU law needs a final court to arbitrate on its meaning. It is fundamental to the single market that, once we agree on rules, they apply throughout that market. Most cases aren’t referred to the ECJ, but EU-wide interpretation of the rules must be available if we don’t want the single market to become ever more nominal as different countries read the rules differently (and as one of the more conscientious rule-followers in the EU, we don’t). You can argue about its decisions, as with any court: but the principle remains.

The much-attacked primacy of EU law is part of the same principle. If you want rules to operate throughout the EU, they can’t be overruled by all conflicting national legislation: that way lies a self-destructing single market. In the UK, the primacy of EU law operates through the European Communities Act 1972, so the principle of parliamentary sovereignty remains intact: the courts disapply UK legislation where it conflicts with EU law, but by virtue of UK statute. Further, the primacy of EU law doesn’t mean the EU can legislate in all areas: it applies to EU law, which must be passed in areas where the EU actually has competence.

Ultimately, the role of the ECJ needs to be better understood. But if we want to talk about a more robust dialogue between UK courts and the ECJ, that may well be possible, perhaps through UK courts including a provisional opinion on cases referred to the ECJ more frequently, in addition to giving reasons for the reference. In a different (though often conflated) area, we’re already seeing a more robust dialogue between the UK Supreme Court and the European Court of Human Rights. On further appeal, the Strasbourg court has often revised its view in line with our domestic courts.

Physician, heal thyself

The EU is and probably always will be, as long as it lasts, a mix of the supranational and the intergovernmental: directly-elected MEPs, EU courts and the Commission will rub along against governments in the Council of Ministers and the European Council. That means we have to consider democracy in two ways: yes, we need to question how democratic the EU institutions themselves are in themselves, but we also need to do much more to hold our own Government to account for what it does in our name.

There are, in fact, plenty of things we can do in the UK to make our relationship with the EU more democratic. The EU’s opponents cannot have it both ways: they talk about closed rooms and secret negotiations, but deals between sovereign governments always involve negotiation. It’s because the EU isn’t a superstate that we get this: intergovernmentalism requires wheeling, dealing and fudge. And if that’s your problem, you can look at the more ‘federal’ bits of the EU as an alternative, or you can do more to keep tabs on what your own government is doing in negotiations, or you can do a bit of both.

What you can’t do is just rail against the whole thing, with no alternative but disengagement. Any relationship with any other country will pose problems of transparency to a greater or lesser extent. It’s not just the EU: what about NATO, or the G8, or the WTO? In many ways, in or out of the EU, sovereignty is the right to a seat at the table: shouldn’t we be asking our Government more about what it does when it sits in the chair?

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Lords in limbo: apply the Salisbury Convention in spirit as well as letter, please

Lords reform has been fairly heavily trailed for some time now, and we’ve had a bit more confirmation that the White Paper is on the way in the past couple of days.  I’ll be glad to see the Government make headway on this: despite the outcome of the AV referendum, Lords reform has been a longstanding commitment from politicians of all parties and the evidence has always been pretty clear that a majority of the public believe our second chamber should be (at least predominantly) elected.

Personally, I think this really should be a fairly cut-and-dried issue.  Members of the House of Lords are not primarily independent experts, sources of warnings or nods to tradition.  These are all understandable things to want, and we ought to think much harder about how we integrate expertise into our legislative process, but they are not the primary role of the people who vote in the second chamber.  They are, first and foremost, legislators – and legislators whose record of changing Bills and therefore policy is significant and growing.  If we want expertise, we should make sure we have it in the right committees and the right debates for the right issues.  (Could some experts even sit on Select Committees, in the Commons and in a new second chamber, as non-voting, co-opted members?)

The people who actually do make our laws should be democratically accountable.  In an ideal world, therefore, we should finish up with nothing less than a 100% elected second chamber.  I’m relatively relaxed about the finer points of STV versus open lists (lists where you can choose a candidate within a party list rather than just opting for a party): so long as it’s a proportional system where voters don’t just have to tick a party box, I’ll settle for it.

With regard to the likely plans to come from the Government: I’m not ecstatic about the idea of 15-year terms and I have fairly serious reservations about single terms – I think it’s an important principle that legislators should have to at least consider the possibility that they might want to face the electorate again, and if we’re serious about democracy then we have to accept that that requires accountability.  Electing by thirds (or halves, or quarters) is sensible, though: our new Senate should be a more continuous body than the House of Commons, and a combination of PR and staggered elections would help to make sure it fits the bill.  In terms of dealing with the current members of the Lords, I think an arrangement along the lines of the Cranborne deal might make sense – which would mean that we’d have 200 left in 2015, 100 left in 2020 and none by 2025 (when the full complement of Senators would have been elected).

But I’m enough of a pragmatist to understand that, if you want Lords reform at all, you can’t let the best be the enemy of the good.  The fact that people haven’t recognised that is exactly why Lords reform hasn’t happened, even with a Labour government who said they wanted it in charge for 13 years.  So if Nick Clegg can even secure an 80% elected second chamber, even with twelve voting bishops (though the latter will cause me real pain …) and even with all the other peers staying until 2025, then I’ll see that as a major step forwards and a real achievement.  Of course, that depends on his Coalition partners voting it through.  Whether the Conservatives will choose to live up to the spirit, as well as the letter, of the Coalition Agreement remains to be seen: if they choose not to, no doubt Liberal Democrats will feel even more betrayed than many of them do already.

The other question is how fiercely the House of Lords will resist being reformed.  Everyone seems to agree that they will fight tooth and nail against reform.  I do appreciate that, when people find themselves on the red benches, they have an uncanny knack of seeing the wisdom of allowing the nation to carry on benefiting from their wisdom.  The Cross Benches’ reluctance is understandable, given that there would undoubtedly be pretty few (if any) of them in a 100% elected second chamber and that their role would inevitably be questioned in an 80% elected one.  In any case, the difficulties the Lords could cause for reform, and for large areas of Government business, are very substantial indeed.

It’ll eventually be a question of whether the Coalition has the political will to push change through, whether peers like it or not.  But one thing I really don’t understand is: on what basis do the Lords think they have any right to derail this legislation at all?  All three main party manifestos called for a wholly or mainly elected second chamber.  All parties have been reasonably clear, with some wobbling from the Conservatives in the past, that the second chamber would need to be elected by some sort of proportional system.  In 2005, both Conservatives and Liberal Democrats also called for a wholly or majority elected second chamber too.

It seems to me that, if a pledge won the support of both parties in the Coalition when they went to the country (as well as the Opposition and a number of the smaller parties), we have a pretty clear case of the Salisbury Convention in action.  I can see why the Lords might query some Coalition compromises in that regard: no one got to vote for the Coalition Agreement.  But on this one, I just can’t see where the ambiguity lies.  It was proposed: it was in the manifestos: it’s now in the process of being turned into a White Paper, and hopefully a Bill.  If there’s any defence, it’s surely of the most technical kind.  Where exactly did the Salisbury Convention include a bit saying the Lords didn’t have to apply it to their own seats?

Why I’m voting ‘Yes’ to AV

The AV referendum is probably going to be our last chance to express a view on how to choose our MPs for quite some time.  I can’t see the issue coming back for about 20 years.  So if you’re concerned about our democracy (or, indeed, if you’re delighted with it the way it is), the vote on 5 May is a crucial one.

Whichever side wins, one MP will still continue to represent each local area; whichever side wins, the voting system will be almost equally likely to deliver majority governments.  We’re being asked, instead, which of two options is the fairer way of choosing our (single) local MP.

On that basis, in the full knowledge that the question here is AV versus FPTP and independently of the chances of any further reform, I’m hoping for a ‘Yes’ vote – and for what they’re worth, here are my main reasons:

1. With AV, a local MP will better reflect local people’s views

AV will make sure your MP’s views are nearer the real centre of gravity in your local area – and prevent a cohesive minority, who don’t really reflect most people’s views, from taking over instead.

For instance, imagine a seat where the Conservatives win 35% of the vote, Labour win 30%, the Greens win 25% and the Liberal Democrats and Socialists both win 5%.  Leave aside the fact that the Tories only got 35% of the vote: as a matter of pure common sense, looking at the political consensus in this area, would a Tory victory really be a fair reflection of how most people voted?  It would be the same if Labour won 35%, the Tories won 30%, UKIP won 25% and the Lib Dems and English Democrats both won 5%.  In both cases, FPTP delivers the seat to a party who is strongly opposed by most voters: AV would fix that.

2. With AV, no citizen will have to fear voting for their real first choice and getting their last instead

A general election should be your chance to weigh up what different parties offer, look at local candidates and make an honest statement of preference.  It’s the only chance you get to express your opinion on what kind of Britain you want and who you want in charge and, hopefully, have some bearing on the outcome.

But for too many people, elections have stopped being an expression of belief and become a glorified game of chess.  Keeping the enemy out becomes the only aim: voting ceases to function as an expressive act, a positive endorsement, and starts to be a defensive (often grudging) manoeuvre.  And people who might have voted Green, Liberal Democrat or UKIP (or Labour or Conservative, for that matter) end up hiding their true colours and walking away from the polling booth feeling cheated.  This is no way to run a democracy.

3. AV will make our political system a little more open

For better or worse, British voters have been gradually drifting away from the two largest parties.  Labour and the Conservatives barely won 65% of the total vote in 2010; in 1951, they won nearly 97%.  This has happened under a system which actively discourages voting for new parties.  At the last European election, Tory and Labour support fell as low as 43.4%.  Although I doubt we’d see figures quite that low in a general election, I do believe the current voting system is suppressing the real range of British public opinion.

There is an argument that the voting system should guard against a mass of tiny parties making the Commons unworkable: there’s not much of a democratic argument that it should try and stop any new political force from being given expression by the people.  But FPTP preserves our party system in aspic: and if we ever saw a real surge in popular opinion, the voting system would crush it.

We’ve got the proof from the 1980s.  The Liberal-SDP Alliance failed, but not because it couldn’t command mass support (25.4% of voters endorsed them even under FPTP) or because it had no credibility (the Gang of Four had all been Cabinet ministers).  Ultimately, people didn’t believe they could win and didn’t take the risk.  They might or might not have actually done so under AV: but if they had, an Alliance government’s economic policy would almost certainly have been a much better reflection of public opinion than Thatcher’s.  It is very hard to believe that democracy was well served by the actual outcome, whatever your politics.

4. AV will produce governments with a stronger democratic mandate

Even if you want majority governments, their declining electoral mandate ought to worry you – and AV can help there.  AV would, for instance, still have given Labour a majority in 2005.  But Liberal Democrat voters were pretty repelled by Michael Howard’s campaign: most of them would have ranked Labour above the Conservatives.  SNP and Plaid Cymru voters aren’t known for preferring Tory governments.  65% of people voted against Labour in 2005, but it’s almost certain that a majority of people preferred a Labour government to a Tory one: with AV, we’d have known that they did, and that broader (though, yes, less committed) support would have been expressed at the ballot box.

When we do get hung parliaments, we’ll also have a much better idea of what voters want their preferred party to do.  If Liberal Democrat voters in 2010 preferred a Labour-Lib Dem deal, we’d have known about it from their second (third, etc.) preferences: equally, we’d have a better idea of whether the country preferred a Cameron-led government from preference data.  With FPTP, we have no real way of knowing what voters want when no one wins outright: with AV, we do – and so politicians have fewer places to hide.

Finally …

Unless trends change radically, we can expect a number of things to happen under FPTP in the coming years.  MPs will be elected with ever lower levels of public support.  Governments will win majorities with smaller and smaller mandates from the voters – Labour’s 35.2% of the vote in 2005 could just be the start of things to come.  Whether we get a government in line, even roughly, with the people’s wishes will become more and more a matter of luck, electoral geography and how many parties split the vote on which part of the political spectrum.  And by the way, we’ll probably get a few more hung parliaments, whatever the voting system.

AV isn’t perfect and it won’t fix every problem.  But it’s a better and a fairer way of choosing our representatives than the one we’ve got.  MPs will have stronger mandates from their constituents – not a perfect mandate, not the whole-hearted support of everyone in their area, but a reasonably broad base of support in a multi-party system where voters can cast an honest preference.  Governments will rely on broader support than they do now – and because they’ll need to maintain (qualified) support from other parties’ voters, they’ll be wise to govern in a way which reflects that broader support.  And our political system will be better able to give big shifts in public opinion some form of expression, rather than just bottling them up.

If you want to be able to vote with your heart and your head at the same time; if you want governments to listen to a broad swathe of the people; if you want a politics which lets new people and new ideas into the debate: vote ‘Yes’ on Thursday.

If we get fairer votes, we need some better stats too

If AV is passed by referendum in a month’s time – which I hope it is – voters will be able to give much more information about their real preferences than they currently can.  That is, of course, the point: by giving second (and third, and so on) preferences, voters will no longer have to choose between heart and head.  They can choose both, all on one ballot paper.

Against that, ‘No’ campaigners pit the fear of more coalition governments.  I don’t accept the premise that these are a bad thing; better a compromise government, reflecting a plural electorate, than winner takes all on 35% of the vote.  But that’s an argument for another post; AV is perfectly capable of delivering majority governments, and in Australia it generally does.  In a British context, majority governments would be more legitimate, too: by allowing the expression of subsequent preferences, most governments would be shown to have a base of (partial) support extending well beyond their total share of first preferences.  The fact that most Liberal Democrat (and SNP and Plaid Cymru) voters preferred a Labour government to a Conservative one in 2005 would have been made explicit and measurable in second and third preferences: and Labour’s mandate would have looked much stronger as a result.

But even where AV produces hung parliaments, it will produce hung parliaments where the will of the electorate is made a little clearer. Looking at the spread of their voters’ preferences, the party or parties which held the balance would have a much clearer idea of which partner their voters would prefer; and if the second-placed party had a much wider support base among the electorate as a whole than the first-, we’d be much more likely to know about it. So an AV hung parliament would be more democratic than the FPTP version: it would be that bit clearer if a party defied the popular will and chose the ‘wrong’ coalition partner, and that bit easier to punish them later.

The Australian election of 2010 provided a good example of how AV can help clarify an unclear result.  A strong Green vote cut the Australian Labor Party’s voteshare down to 37%, well behind the Liberal/National Coalition’s 44%. But when the full preferences were tallied and allocated to one of the two major groupings, the ALP had 50.12% of the vote: a very small lead, but clear. When given a choice between the two options, the Australians’ voting system allowed the politicians to see which option they preferred. FPTP would have given no such clarity.

The slight snag is that, under British counting procedures, we might well not be given the information which AV creates and makes available. The Australians record the full preference data for their elections, allowing much more information to be gleaned from them – even if you vote for a leading party in your constituency and your other preferences never need to be used, they’re still kept on record. In Britain, by contrast, we tend to perform the minimum checks on our ballot papers compatible with making sure we get the right winner – which means that a lot of that preference data would probably be lost in our version of an AV count.  We wouldn’t necessarily get an equivalent of two-party-preferred voting data (in 2010 this would presumably involve a Labour-Conservative, Labour-Liberal Democrat and Liberal Democrat-Conservative analysis) here.

Technocratic though it sounds, the time could come when that information matters.  It matters because, when no one party has won power and politicians therefore have to strike bargains, this information leaves them with fewer places to hide.  A party whose voters split 70% in one direction but then went the other way in its choice of coalition partner would live to regret it: and they’d have been warned in advance, too.  But equally, if the people expressed a clear preference for one leading party or another overall, they’d still stand warned: and if they ignored it, again, they would be likely to pay for it.  The democratic basis of a coalition would be much better spelled out for all parties: and that would help to make sure that coalition did reflect the broad wishes of the electorate.

So hung parliaments and coalitions shouldn’t necessarily be feared; AV doesn’t necessarily create more hung parliaments; and when it does produce hung parliaments, it provides more information than FPTP about the outcome voters would prefer.  But if we want to have that information to hand, we need to make sure it’s recorded.  So if there’s a ‘Yes’ vote, a polite word in the ear of the Electoral Commission might be no bad thing …