A Question of Judgment
The Importance of Judgment
Last week the Legg report and the CPS´s decision to prosecute 3 MPs brought public respect for Parliament to a new low. It gave strong ammunition to those who want to weaken Parliament and it strengthened the aggressive attacks from many sections of the media. Opinion polls suggest that large sections of the population have lost confidence in Parliament.
It is a depressing time for those who esteem politics and value democracy. On November 11th 1947 Winston Churchill famously stated:-
No one pretends that democracy is perfect or all-wise. Indeed, it has been said that democracy is the worst form of government except all those other forms that have been tried from time to time.
The strength of this assertion comes from confidence in the quality of the judgments of elected Parliamentarians and respect for their wisdom. These give Parliament its legitimacy and authority.
But recently there have been too many failures of judgment. They include the individual errors listed by the Legg report, the enormous collective misjudgment which was the failure to sort out a transparent system of payment for MPs, the inability to understand that Parliament should respect the Freedom of Information Act, and Mr Speaker Martin's decision to permit the arrest of Damian Green MP.
This week the judgment of Members of Parliament is once more at the forefront of politics. and we need to make sure that we get it right.
Parliamentary privilege
The first matter is the use of parliamentary privilege.
The decision of Eliot Morley, David Chaytor and Jim Devine to rest their legal defence upon parliamentary privilege is nothing less than shameful. It is disappointing that they have been advised to do this by the Labour Party's own solicitors.
Parliamentary privilege is a precious constitutional right. Its purpose is to defend the rights of the individual citizen. It is not a perk of MP's office to protect them from due process of law. It should not be abused in the way in which Morley, Chaytor and Devine are seeking to do. These three citizens have the absolute right to a fair trial in Court. They do not have the right to evade that trial on the grounds that they are MPs.
It is essential for Parliament to reject their position categorically, and that needs to be done as soon as possible. It is good that Alan Johnson, William Hague and Nick Clegg have made it clear that the main party leaderships reject the use of parliamentary privilege in this way.
Parliament itself now needs to make it formally clear to the Courts and to the country that Parliamentary privilege cannot be used in this way. The appropriate means urgently needs to be found. It could be done, for example, in the form of a Speaker's Statement, a resolution on which Parliament votes or another appropriate means. If necessary the forthcoming recess should be shortened to provide any necessary Parliamentary time.
However Parliament has to demonstrate categorically its own formal judgment that Parliamentary privilege has no place in these cases.
Tony Wright's reform proposals
Next we come to the recommendations of the report of The Select Committee on Reform of the House of Commons, chaired by Tony Wright MP.
This Committee was announced in Parliament on June 10th last year as one of the Prime Minister's responses to the internal challenges he faced after Labour's poor European Election results. The formal resolution to establish the Committee was agreed by the Commons on July 20th last year.
On November 24th last year The Committee published its report, "Rebuilding the House: Select Committee Issues":-
www.publications.parliament.uk/pa/cm200809/cmselect/cmrefhoc/1117/111702.htm
Its recommendations are designed to achieve a more independent Parliament whose judgments are more widely respected. They:-
- address the status, role and authority of select committees, including the election of their members;
- put greater control of the business of parliament into the hands of parliament itself;
- increase public involvement in parliament.
In January this year the House's Liaison Committee (the Chairs of all 32 Select Committees) gave its support for these proposals because they would strengthen the capacity of Parliament to hold the Government to account, and its ability to influence constructively the decisions and actions of Government.
Parliament needs to be able to decide on these specific recommendations before the General Election. However last week there was some ambiguity between the responses of the Prime Minister, when he appeared before the Liaison Committee, and the response of the Leader of the House in Parliament.
This week it needs to be made absolutely clear that before the General Election MPs will be able to vote upon the recommendations of the Select Committee on Reform of the House of Commons.
The Role of Referenda
The third issue is more complicated and nuanced. It is about the role of referenda in our modern constitution. All referenda remove authority from Parliament, as the relevant decisions are taken directly in a national Yes/No ballot instead of through the Parliamentary process.
On Tuesday there will be votes on Government amendments to the Constitutional Reform and Governance Bill. One amendment will be the proposal to hold a referendum about replacing the current system of election of Members of Parliament (First Past the Post) by the so-called Alternative Vote.
I support the Alternative Vote (AV) for MPs, and have done so for many years. Under the AV system voters place candidates in order, 1,2,3.. rather than just an putting an X against one of them. Votes for the least supported candidates are then eliminated and transferred until a majority of votes support the winner.
This system has many virtues. It would retain the constituency basis of politics and increase accountability to constituents. It would promote a more constructive politics of alliance-building, rather than the often negative adversarial approach which is so damaging in many parts of British life. It would reduce the number of safe seats where the incentive to vote is reduced. And it would be very simple to implement. However AV is not proportional representation and it does not necessarily deliver a more representative Parliament.
There are arguments against this change, and there are many opponents in the Labour Party. That is why this proposal hasn't been brought forward since 1997. In fact Labour last proposed it in the 1929-31 Parliament, when it passed the Commons but was rejected by the Lords.
However the good arguments for AV are not the same as good arguments for a referendum.
The constitutional convention is that major constitutional changes should be passed with popular assent. This can be expressed either through a manifesto commitment or, failing that, by a referendum.
In practice referenda in Britain have happened as a result of internal party political division about the issue at question. The referendum, or a commitment to one, protects party unity by passing responsibility directly to the electorate. The referenda on European Union membership, Scottish and Welsh devolution and English regional government are good cases in point.
But referenda are notoriously unreliable tests of public opinion on the subject in question. A whole set of other issues tend to determine voting behaviour, most notably the general popularity of the government of the day. That is particularly true if the referendum can be presented as a partisan political device.
These problems certainly arise with the proposed referendum on the Alternative Vote method of elections to the Commons.
The referendum would not be a vote for or against proportional representation, since AV is not a proportional system. The timing of the legislation, immediately before a General Election, would be widely presented as mainly inspired by partisan political tactics. And other political issues would certainly in practice come to the forefront by the time at which the referendum were held.
In addition I see little reason for confidence that the electorate would actually vote for AV in a referendum. The most recent poll finds 62% satisfied with the present system with 40% for the Alternative Vote and 31% against in a referendum. This is hardly an overwhelming majority for this change.
Supporters of AV, such as myself, need to bear in mind that, once Parliament has agreed a referendum on these matters, a defeat could well kill off any change in the voting system for decades - as has now happened to the idea of elected English regional assemblies.
Parliament's best judgment on this vexed question would be for the Alternative Vote reform to form part of the political party manifestos and be legislated on that basis after the General Election.
On all the three matters addressed above the only way for Parliament to escape from the mire into which it has now fallen is to demonstrate its commitment to the democratic principles which inspire it and to support reforms which will enhance it. There is no time to lose.
Charles Clarke MP | 
