Posts Tagged ‘Featured’

Five things we have learnt about England’s voter ID trials in the 2019 local elections

The Cabinet Office and Electoral Commission have published their evaluations of the voter ID trials that were held during this May’s local elections. Michela Palese assesses what we have learnt from them, and what concerns remain.

The ID trials, which followed an initial set of pilots last year, required voters in ten English local authorities (Braintree, Broxtowe, Craven, Derby, Mid-Sussex, North Kesteven, North West Leicestershire, Pendle, Watford and Woking) to present personal identification when visiting the polling station.

As in 2018, the participating local authorities tested three different types of identification requirements: a photo ID model (Pendle and Woking), a mixed model where voters presented either one piece of photo ID or two pieces of non-photo ID before casting their vote (in Braintree, Derby among other areas), and a poll card model, in Mid-Sussex, Watford and North West Leicestershire. In the areas piloting the photo ID and mixed ID models, voters who did not have the required identification could apply for a locally issued certificate of identity.

While the Cabinet Office declared the 2019 trial to have been a ‘success‘ for the government’s voter ID pilots, the Electoral Commission was more cautious in its judgement, saying: ’Important questions however remain about how an ID requirement would work in practice, particularly at a national poll with higher levels of turnout.’

So, what did we learn from the Cabinet Office and Electoral Commission evaluations?

1. Around 2,000 people were initially turned away from the polling station for not having ID, with around 750 of them not returning to vote

Compared to allegations and verified cases of personation – the crime of pretending to be someone else at the ballot box – the figures for numbers turned away in each pilot area (see Table 1) are extremely high. Figures released by the Electoral Commission in March 2019 showed that, of the 266 cases of electoral fraud investigated by police in 2018 just one in five (57) related to complaints made about the voting process. Of these, personation fraud at the polling station accounted for just eight of the allegations made in 2018. There is therefore insufficient evidence to suggest that personation fraud is widespread in the UK, which makes it hard to justify this level of disenfranchisement for lack of ID.

Table 1: Number of people who were not able to show ID in each trial area

Source: Electoral Commission; *In Watford, the lower number in the range indicates those that gave their name to polling station staff and were then not issued with a ballot paper because they did not have ID; the higher number also includes those who left before giving their name, so cannot be confirmed as registered at that polling station.

2. Requiring voter ID can have a potentially disproportionate impact on certain groups

As the Electoral Commission stated in its evaluation, some groups of people may find it harder than others to show ID, particularly photo ID. This includes people with protected characteristics as well as other less frequent voters. Possession of ID is not universal in the UK and previous research by the Electoral Commission showed that around 3.5 million citizens (7.5% of the electorate) do not have access to photo ID. Getting ID costs time and money, which some may not be able to invest, and we know that certain groups – particularly marginalised or vulnerable groups – are less likely to have ID.

Awareness of ID requirements also differs across demographic groups: those aged 18–34 were less likely to have heard about the pilots than those aged 55+; similarly, those from a BAME background were less likely than white respondents to be aware of the ID requirements.

Requiring identification has the potential to discriminate against certain groups and, as the Electoral Commission stated in its evaluation: ‘If there were to be a disproportionate impact on particular groups of voters this could also have a negative impact on public confidence; we know that problems at elections can affect voters’ and non-voters’ overall perceptions of the poll.’

3. Requiring voter ID had only a small effect on voter confidence among voters in pilot areas

The Cabinet Office report found that the perception of the polling station being safe from fraud and abuse increased by around 2–5 percentage points across the pilot areas. But levels of confidence in safeguards at polling stations were already high – with between 85% and 87% of people saying that voting at polling stations is safe from fraud and abuse before taking part in the pilots.

Similarly, the Electoral Commission’s post-poll research found that 77% of electors thought voting in general is safe, particularly at the polling station (81%). Indeed, looking at the Electoral Commission’s post-pilot surveys, it is clear that postal voting is more of a concern: ‘72% believe postal voting to be safe from fraud or abuse whereas 87% believe voting at a polling station is safe. The proportion who would describe voting by post as unsafe (15%) is three times the proportion who would describe voting at a polling station as unsafe (5%).’

In short, though the evaluations conducted by the Cabinet Office and Electoral Commission indicate a slight increase in perceptions of polling stations being safe from fraud and abuse as a result of the pilots, pre-existing levels of confidence in the security of polling station were already very high. This cannot be said for other aspects of electoral integrity, such as postal voting, on which the government is not currently focused.

4. Fraud is not voters’ top concern about elections

Post-poll research by the Electoral Commission found that electoral fraud is not at the top of electors’ concerns. Only one in four respondents (24%) said electoral fraud was somewhat of or a serious problem, with more (26%) stating it isn’t a problem.

By contrast, low voter turnout and bias in the media were considered to be a problem by 64% and 56% of respondents respectively. Other issues that came higher in people’s priorities were: inadequate regulation of political activity on social media (chosen by 38% of respondents); inadequate regulation of the money political parties spend on their election campaigns (38%), and foreign influence on UK election results (30%).

Only barriers to democratic participation for minority groups and intimidation of candidates that stand for election were lower priorities for voters than voter ID (chosen by 22% and 18% of respondents respectively).

5. Questions remain about how voter ID requirements  would work for the whole country in a general election

Unable to draw any definitive conclusions from the trials on how voter ID would work if rolled out nationally, the Electoral Commission highlighted three areas for further consideration: any scheme should clearly deliver improved security; it should ensure accessibility for all voters, and any ID scheme should be realistically deliverable at a national level, taking into account the resources required to administer it. Though most voters were able to vote on 2 May in the pilot areas, some of them were not. The disproportionate effect requiring voter ID has on certain communities in particular, as shown above, and the restrictions on where and when free local elector cards can be obtained are further evidence that current ID requirements are not accessible for all voters.

Though electoral administrators were satisfied with how the pilots were administered and didn’t find them to have been too resource- and time-intensive, the setting in which the trials were conducted is highly dissimilar to that of a typical general election – which is likely to attract higher numbers of voters from much more heterogeneous demographics.

Mandatory voter ID – particularly in a polity such as the UK with no universal, free or cheap access to ID cards – poses a risk to democratic access and equality which far outstrips the levels of personation at the ballot box and the slight increases in perceptions of polling station voting being free from fraud or abuse.

We should be focusing on addressing voters’ concerns – low turnout, media bias, financial interference in elections, among many others – not on preventing voters from exercising their democratic right to vote.

_________________

Note: The above was first published on Democratic Audit. Photo by Dom J from Pexels.

About the Author

Michela Palese is Research and Policy Officer for the Electoral Reform Society.

 

 

Book Review: Citizens of Nowhere: How Europe can be Saved from Itself by Lorenzo Marsili and Niccolo Milanese

In Citizens of Nowhere: How Europe can be Saved from ItselfLorenzo Marsili and Niccolo Milanese offer an innovative look at citizenship, grounded in the development of a transnational civil society sphere across Europe. This is an ambitious, perceptive and clear-sighted argument for a transnational citizenship and politics, writes Ben Margulies, that also details the political project required to make it a reality. 

Citizens of Nowhere: How Europe can be Saved from Itself. Lorenzo Marsili and Niccolo Milanese. Zed Books. 2018.

Find this book: amazon-logo

Politics is a realm of abstract nouns and concepts, and we often use or pass over these without too much interrogation. ‘Citizenship’ is among these terms. It is a legal status, or a vague exhortation to public-spiritedness, or a legal burden to acquire or overcome.

This is unfortunate, because the institution of citizenship is especially relevant to the dilemmas and grievances of modern politics. Citizenship is what Isaiah Berlin would characterise as a form of ‘positive liberty’ – a freedom to do something, specifically to actively participate in the acts and processes of governance. If the chief complaints of the populist age are a sense of powerlessness and neglect, then citizenship is an obvious solution.

But citizenship of what? Populists – left and especially those designated ‘radical right’ – typically answer with ‘the people’ or ‘the nation’. Those populists on the radical right seek to make that citizenship meaningful by drawing thick borders around the body of citizens (‘nativism’) and by advocating direct democracy over the representative sort. Centre-right politicians have also embraced this framework in a bid to meet citizen dissatisfaction – this is what Theresa May meant in her 2016 party conference speech, when she said:

But today, too many people in positions of power behave as though they have more in common with international elites than with the people down the road, the people they employ, the people they pass in the street. If you believe you are a citizen of the world, you are a citizen of nowhere. You don’t understand what the very word ‘citizenship’ means.

May’s speech provides the launchpad for Citizens of Nowhere: How Europe Can Be Saved from Itself, an innovative look at citizenship from authors Lorenzo Marsili and Niccolo Milanese published by Zed Books. Marsili and Milanese are London-based activists and the founders of European Alternatives, which encourages the development of a transnational civil society sphere across Europe.

Marsili and Milanese’s work extrapolates from sources and arguments which have been aired elsewhere in the debate over Europe’s future. Where their book shines, however, is in analysing the relationship between citizenship and governance – not just the nation state, but the means and institutions by which we are governed.

Marsili and Milanese’s core argument is that citizenship is only meaningful in relation to the fact of being governed. This means that nation-state citizenship is no longer uniquely relevant, because ‘the governing political elites are spread between international and non-national institutions and authorities’ (83). Since citizenship is only truly valuable as a means of self-government and accountability, then national citizenship is insufficient – it cannot provide self-government in a context where much of government occurs beyond the nation state, or beyond any state, in the realm of the global market. Without some sort of transnational citizenship, most people lack any agency: ‘the vast majority of us are ‘‘citizens of nowhere’’ to some extent, and we will remain so until we invent political forms of agency that are equal to the forces shaping our world’ (4). This disempowerment also prevents us from imagining alternative futures to the neoliberal order, and this too makes us ‘citizens of nowhere’, as ‘meaningful political citizenship requires the possibility of acting in support of what currently seems impossible’ (12).

Image Credit: (Pixabay CC0)

Citizens of Nowhere offers a detailed exposition of how a focus on the national impedes effective political campaigning and organisation. On the one hand, fantasies of seceding from the global market and creating an autarkic nationalist bastion cannot work. A nation state could withdraw from common monetary, commercial or juridical agreements:

But given that each state would remain subject to some of the governance authorities and would need to trade with others, cooperate militarily, rely on international law and so on, the harm to which they would subject themselves by leaving some elements of the international system would surely undermine internal support for pulling out totally (82)

At the same time, existing transnational institutions are designed to exclude democratic participation and contestation. The end result is a nationally focused politics which obscures the common economic condition of those exploited under neoliberalism, and the common political condition of ‘being governed’, citing Michel Foucault (148).

The book also contains a number of interesting passages on the various threats to and manipulations of citizenship. Massili and Milanese devote a chapter to how citizenship has been devalued by its sale to wealthy investors, and by the willingness of states to strip nationality from citizens on national security grounds (creating ‘disposable citizens’). States also claim – as May did – that citizenship cannot exist unless borders are closed and harshly policed to keep outsiders from accessing its privileges. Citizenship becomes not a right to do anything for oneself, but to exclude and punish others – because that is all that citizens under neoliberalism are really allowed to do. ‘Sovereignty is configured as the power to decide who loses their rights’ (148).

What really shines through in the text is the idea that citizenship cannot be fully national, because it rests ultimately on a fundamental conception of human equality. Massili and Milanese link the concept back to the Declaration of the Rights of Man and of the Citizen (1789), the first French human-rights legislation. The authors observe that this declaration spoke not of French rights, but universal rights, and that the revolutionary regime freely granted citizenship to noted foreign liberals until 1793 (137-39). Thus, migrants are citizens because all human beings are.

The authors’ solution to the gap between citizens and the transnational system that rules them is to create a ‘transnational’ party. This party, like the neoliberal elite, would be ‘promiscuous’ in its activities – it would act at all levels of governance (national and supranational), and in both governmental and non-governmental spheres. ‘The party would be placed simultaneously beyond and between formal institutions of state and politics’, and ‘would care for all the ways in which politics is conducted outside the institutions’ (194). It would transcend ‘inter-national’ approaches that take nation states as the main actors in supranational politics, and it would create the subject, the demos, necessary for such a transnational democratic politics (‘for a democracy, you do not need a people, you need parties!’ (190)).

Of course, everyone wants an open, liberal party rooted in a vibrant grassroots activism. Every political activist – or, at least, those who tend to call themselves progressive – wants their party to be ‘a space of coordination and collaboration’ with a mission to ‘multiply civic energy by creating connections’ (199), rather than a top-down structure reminiscent of Robert Michels’s ‘iron law of oligarchy’. In practice, the literature doesn’t give Massili and Milanese much cause for hope – typically, left-wing parties that grow from or in tandem with social movements, like Podemos (Spain), Syriza (Greece) or the Workers’ Party (Brazil), find that, once in power, they tend to draw the social movement activists into office and focus on electoral concerns. The grassroots tend to wither as a result. One of Podemos’s early notables complained in Jacobin recently about how the party had few militants and an insular, elitist leadership.

Citizens of Nowhere has a few flaws. The discussion of neoliberalism, though necessary, is something of a potted history. The authors also have a tendency to speak of neoliberalism as if it were a unitary actor, manipulating national differences in order to befuddle and frustrate the common people. Though neoliberal elites are certainly capable of a bit of national chauvinism, this rhetoric incorrectly implies that neoliberal elites act in concert, which Brexit surely disproved. It also implies that neoliberal politicians and economists are not themselves socialised to nationalism, embodying the contradictions between the national and the international in themselves. Again, the desire from a post-Brexit ‘global Britain’ would seem to illustrate this point.

Though the authors’ overview of history and contemporary politics is a bit uninspired, Citizens of Nowhere is nevertheless an ambitious and perceptive book. It advances an innovative and clear-sighted argument for a transnational citizenship and politics, and a detailed political project for making that citizenship a reality. The question at hand is whether that project can outpace the nationalist, nativist turn of our contemporary politics.

Please read our comments policy before commenting.

This article is provided by our sister site, LSE Review of Books. It gives the views of the author, not the position of LSE Brexit or the London School of Economics.

Ben Margulies is a lecturer in political science at the University of Brighton. He was previously a postdoctoral fellow at the University of Warwick. He specialises in European, comparative and party politics.

Categories, stereotypes, and political identities: the use of Brexiter and Remainer in online comments

Joanne Meredith and Emma Richardson examine how the terms Brexiter and Remainer were used by online commenters during and after the referendum. They find that the two are seen as political categories in their own right, with other, well-defined political identities resisted when used.

Commentary around Brexit highlighted political and social divisions in the United Kingdom in the run-up to the referendum. These divisions continue three years on. While there has been much public focus on the discourse of politicians during this time, we were interested in how members of the public discussed and debated Brexit and how this might impact upon society and politics in the future. We analysed the language and discourses used by commenters in online newspapers as they discussed articles relating to Brexit; focussing on the period from the announcement of the date of the referendum until four months after the result was announced. We examined 2,586 threads of conversation, taken from 34 articles across four different online newspapers. As the £350 million claim was so prominently contested we chose to focus on news items which related to this claim.

Categories and stereotypes

Our specific interest was in the ways in which the terms ‘Brexiter’ and ‘Remainer’ were used, and defined, in those comments. We found, through a discourse analysis of the posts, that work was done by each group to define the other. Brexiters used certain terms, or categories, to ‘define’ the attributes of someone who belonged to the Remainer camp, and vice versa. We found that for both sides, there tended to be a multitude of negative definitions of the opposing side. Brexiters were defined by Remainers as racists, xenophobic, ignorant, uneducated and so on. Remainers, on the other hand, were defined by Brexiters as ‘luvvies’, out of touch with reality, and as scaremongers (echoing the rhetoric of ‘Project Fear’).

Social identity theory discusses this in relation to ‘in-groups’ and ‘out-groups’. When we identify with a particular group, whether it’s a political party, football team or fans of a particular singer, we position ourselves within the in-group, and those who do not identify with that particular group are positioned as the out-group. Social identity theory suggests that those who identify with the in-group aim to present their own group in a positive way, and this can involve defining the out-group in a negative way comparatively. It is important to note that the terms in-group and out-group do not inherently make value judgements about the groups being discussed, but rather relate to how individuals identify with those groups.

We found posters repeatedly using negative terminology to define their out-group, which formed and maintained emerging Brexiter/Remainer stereotypes, with the discourses used prior to the referendum becoming ever more defined by the end of the campaign.

Political party affiliation and Brexit

We also examined the interactions between posters, where one or more people responded to an original post to form a thread. In these threads, we observed individual posters categorising another as belonging to, or affiliating with, a particular political party. We saw posters use categories as ‘typical Leftie’ or ‘obviously a Ukipper’ in their posts.

The use of other political parties or political affiliations, such as left- or right-wing, tended to be resisted quite strongly by those being categorised. Unlike the emerging categories of Brexiter and Remainer, where we found extensive work being done by posters to define these terms, the political spectrum in the UK is well defined. Categories such as leftie or right-wing are treated as inference-rich; ‘a great deal of the knowledge that members of a society have about the society is stored in terms of these categories’.

So why might posters resist being categorised by other affiliations? We argue that the traditional dividing lines in British politics were not deemed by posters as relevant to discussions about Brexit. In other words, in this context, belonging to the well-defined categories of Labour or Conservative supporters was not salient. Instead, the dividing line that mattered was whether they were a Remainer or a Brexiter, and the characteristics that were attributed to other posters related strongly to those categories rather than the ones of traditional political parties. There was one exception to this finding: when people were supporters of Brexit and were aligned with UKIP by other posters, this did not tend to be resisted. In other words, while being a Conservative or Labour affiliate was resisted in discussions around Brexit, UKIP – who had a platform of leaving the EU as their main policy – was seen as a relevant political party to invoke in the discussions.

Social divisions, toxicity and the future

Our research highlighted that, firstly, even in the outset of the referendum campaigns there was a growing social division between Brexiters and Remainers, which led to stereotypes of these groups being established by ordinary people. The language and debate tended to be so toxic and negative, with stereotypes and personal attacks, that we rarely saw any moves towards finding agreement or towards a conciliatory position. This highlighted the problems which would later arise in terms of finding agreement and compromise on the issue of Brexit between supporters of each side.

In terms of trying to heal these divisions, one option may be to try and bring Brexiters and Remainers together in ways that allow them to reduce the stereotypical view they have of each other – known as the contact hypothesis. Another suggestion might be to try and find ways to reduce the extent to which Brexiters and Remainers identify with those particular identities, and instead identify with a larger identity. We see politicians talking about being British and believing in Britain, which posits a larger identity that might be relevant. However, at the present time is appears that the identities of Brexiter and Remainer are still, to a great extent, the more salient in public discourse. However, in the future, such social psychologically informed measures could be used to try and heal social divisions.

In terms of the political landscape, the current strength of the Brexiter and Remainer identities suggests that individuals are trying to find parties which house their Brexit views unequivocally. As such, we may see shifts in the traditional political landscape as traditional ‘Left’ and ‘Right’ ideologies do not map to ‘Leave’ or ‘Remain’. We have seen this borne out over the previous year, with new parties forming which have very specific ideologies towards Brexit (Change UK and the Brexit Party). Considering that individuals resisted the use of traditional party categories by pointing out the splits which exist within those parties, it may be that the issue of Brexit continues to cut across party lines for many years.

________________

Note: the above draws on the authors’ published work in the Journal of Community & Applied Social Psychology.

About the Authors

Joanne Meredith is Lecturer in Psychology at the University of Wolverhampton.

Emma Richardson is Research Associate in the Department of Health Sciences at the University of Leicester.

 

All articles posted on this blog give the views of the author(s), and not the position of LSE British Politics and Policy, nor of the London School of Economics and Political Science. Featured image credit: Pixabay (Public Domain).

 

Who decides who is leader of the opposition?

David Howarth explains the legislation and parliamentary rules that determine who is recognised as the official Leader of the Opposition in Parliament. The political implications of these procedures are significant, given current discussions about who would form a government if the current one were to lose a vote of no confidence.

Jeremy Corbyn has explained his position on what happens if the Johnson government falls:

I am the leader of the opposition, the leader of the Labour party. All the constitutional precedents are, when a government collapses, it’s the leader of the opposition that takes over.

As several commentators have pointed out, Corbyn’s second sentence is inaccurate. True enough, when UK governments collapse, sometimes leaders of the opposition do take over. That happened, for example, in 1905, in 1924 and in 1974. But on other occasions, in 1916, 1922 and 1931 for example, the leader of the opposition did not take over. In 1916, a member of the same party became Prime Minister. In 1922, the new Prime Minister came from the other party in the previous coalition. And in 1931, the same Prime Minister started again supported by a differently constituted majority.

Corbyn is simply wrong. No such constitutional rule exists. If there is a rule at all (which one might doubt), it is that the person best placed to provide a stable administration takes over, even if, as in 1905, that administration was not likely to be able to govern for long.

But perhaps more interesting is Corbyn’s first sentence. Undoubtedly Jeremy Corbyn is the current leader of the opposition and he is the current leader of the Labour Party, but, contrary to Corbyn’s implication, the two things are not the same. Corbyn enjoys important privileges in Parliament, not least the benefit of the convention, enjoyed by no other MP, that the government exercises its discretion to control the time of the House in favour of allowing a debate and a vote on a motion of no confidence that stands in his name. But that privilege attaches to his position as leader of the opposition. It does not attach to his position as leader of the Labour Party.

Corbyn is leader of the Labour Party by virtue of the Labour Party’s own rules, which govern, for example, how he might be challenged, and how those rules themselves might be changed. But he is obviously not leader of the opposition by virtue of the rules of the Labour Party. Political parties, contrary to what they sometimes think, control, at least as far as the law allows, only their own internal workings. They are not organs of the state.

But that raises an important question: by virtue of whose decision is Corbyn leader of the opposition? The answer to that question might surprise some, though it is entirely rational. Corbyn is leader of the opposition ultimately because he is recognised as such by the Speaker of the House of Commons. Two lines of reasoning lead to that result: one legal and one parliamentary.

The law

The first reason for saying that ultimately the Speaker decides who is the leader of the opposition is that the law says so. The Ministerial and Other Salaries Act 1975 authorises the payment of an official salary to the leader of the opposition. Section 2 of that Act says that the leader of the opposition is the member of parliament who is ‘the Leader … of the party in opposition to Her Majesty’s Government having the greatest numerical strength in the House of Commons.’ But it then adds, in section 2(2):

If any doubt arises as to which is or was at any material time the party in opposition to Her Majesty’s Government having the greatest numerical strength in the House of Commons, or as to who is or was at any material time the leader in that House of such a party, the question shall be decided for the purposes of this Act by the Speaker of the House of Commons, and his decision, certified in writing under his hand, shall be final and conclusive.

That looks like the end of the matter. The Speaker decides. But not quite. Section 2(2) is restricted to ‘the purposes of this Act’, which means for the purposes of paying the leader of the opposition’s salary and the designation of the person who receives the official salary attached to being opposition chief whip. But who decides for other purposes, especially for the purposes of the motion of no confidence convention?

Government and Parliament

The current Speaker, John Bercow, has asserted that in his view the Speaker decides not only for legal purposes but also for parliamentary purposes. In 2016, in response to an opportunistic point of order claiming that Corbyn, having lost the support of the overwhelming majority of Labour’s MPs, could not possibly be considered the leader of his party, Bercow said:

I can confirm that the Labour party currently constitutes the official Opposition and that its leader is recognised by me, for statutory and parliamentary purposes, as the Leader of the Opposition. He will have noticed that I called the Leader of the Opposition earlier to ask a series of questions of the Prime Minister. He will also be aware that today we have Opposition business duly chosen by the Leader of the Opposition, as indicated on the Order Paper. I should perhaps add that in making these judgments and pronouncing in response to points of order, I do give, and have given, thought to the matter, and I have also benefited from expert advice. These matters are not broached lightly.

The basis of Bercow’s answer, which is now entrenched in Erskine May, the bible of parliamentary procedure, is that the position of leader of the opposition is a parliamentary job. It is mentioned in the Commons’ standing orders and recognised in the daily practices of the House. As such, the only options for deciding who holds the position are the House itself and the Speaker. The problem with saying that the House decides, that MPs might vote on who counts as the leader of the opposition, is that it leads to an absurdity. A government-supporting majority would be able to designate one of their own as leader of the opposition. And so, the decision must be for the Speaker.

The government might counter that the motion of confidence convention is an exception. It might argue that the convention forms part of the rules that give the government discretion to determine what the House debates, so that for the purpose of those rules the government itself should also determine who counts as leader of the opposition. But that view also leads to an absurdity. If the government could designate the leader of the opposition for the purpose of the convention, it could, for example, designate one of its own backbenchers or even a minister, as leader of the opposition, and thus never have to face a motion of no confidence. That cannot possibly be right. The Commons might have delegated its power to control the time of the House to the government for many purposes, but those purposes cannot possibly include making the government immune from motions of no confidence.

Another possibility is that the government might refuse to comply with the convention, declining to allow the leader of the opposition designated by the Speaker to move a motion of no confidence. That would raise interesting and important questions as to how the Speaker might nevertheless enforce the convention.  He might, for example, accept a privilege motion, exempt from the government’s control of the order paper, perhaps on the basis that the government, in defying a clear convention and a ruling of the chair as to who is leader of the opposition, would be treating the House with contempt. Alternatively, he might accept the no confidence motion, or a motion paving the way for it, anyway, using Standing Order 24.

A new opposition leader?

The conclusion that the Speaker decides who is leader of the opposition has potentially important current political consequences. If large numbers of Labour MPs, under the leadership perhaps of Tom Watson, were to declare themselves to be a separate parliamentary party, in numbers greater than those staying loyal to Corbyn, it would ultimately be for Bercow to decide whether Corbyn or Watson was the person entitled to have his motions of no confidence debated and voted on. The internal rules of the Labour Party would be irrelevant.

___________

Note: the above was first published on Democratic Audit. Featured image credit: UK Parliament/(CC BY-NC 2.0) licence.

About the Author

David Howarth is Professor of Law and Public Policy, University of Cambridge.

 

 

 

 

The risks of simple majority referendums: learning from Quebec

duncan bannermanBritain voted to leave the EU in a simple majority referendum. Gordon Bannerman (University of Guelph-Humber) argues that it would have done better to follow Canada’s example. After Quebec narrowly voted to avoid separation in 1995, the country revisited its approach to referendums. Indeed, not all UK referendums have involved a simple majority.

Canada has often featured on the LSE Brexit pages in terms of its past and prospective trading relationship with Britain. But surprisingly little comment has been made on the constitutional precedents Canada provided for pre-Brexit Britain, especially arising from the 1995 Quebec referendum, which resulted in a narrow 50.58 per cent to 49.42 per cent majority rejecting separation.

quebec flag

The Quebec flag. Photo: abdullahh via a CC BY SA 2.0 licence

Afterwards, alert to the potentially momentous implications of a simple majority popular vote, government set to work to provide a new legal framework for referendums. Mistakes had been made. The federal government had no input in drafting the question, with the impetus handed to pro-independence parties (Parti Québécois, Action démocratique du Québec, and Bloc Québécois) whose question asked if voters agreed Quebec “should become sovereign after having made a formal offer to Canada for a new economic and political partnership”.

The convoluted, hedged language, described by the British High Commissioner to Canada Sir Anthony Goodenough as “gobbledygook”, concerning the future of Quebec/Canadian relations was not new. Even greater obfuscation had characterised the referendum of 1980, with a question consisting of 106 words, to grant Quebec’s government a mandate to negotiate “sovereignty-association” with Canada. In both cases, the language conveyed the impression of a smooth transition to independence amidst the willing cooperation and assistance of the federal government. The reality was that such a scenario could not be guaranteed. The Quebec nationalist parties had also threatened to make a unilateral declaration of independence (UDI) should a vote for separation not be honoured within one year. The Canadian government of Jean Chrétien, acting largely on the ideas of Stéphane Dion, the Minister for Federal Provincial Relations, requested the country’s Supreme Court to rule on the legality of UDI, relative to international law and Canada’s constitution. Acting on the 1998 judgment Reference Re Secession of Quebec, Chrétien codified the Supreme Court’s recommendations in the Clarity Act (Bill C-20) in 2000. Any future referendum question had to be presented in the House of Commons and approved by both Houses. Section 1(4) stipulated that questions providing only a mandate for future negotiations with Canada would be considered unclear and invalid. The question had to be “clear”, and voted by an (unquantified) “clear majority” for the Federal Parliament, as arbiter, to recognise its validity. No longer would 50 per cent + 1 be deemed sufficient for far-reaching constitutional changes – in future, a stronger mandate would be required. There the question has rested, as no referendum has taken place since 1995.
As some Canadian commentators have argued, Britain should have learned from the Quebec experience.

Some diplomats and politicians, such as Sir Anthony Goodenough and Malcolm Rifkind (Foreign Secretary, 1995-1997), did see important lessons from the Canadian experience but these were more pointed towards drawing parallels between the nationalist movements in Quebec and Scotland. While lauding the Canadian government’s measures in undermining separatism, the example of the Clarity Act in strengthening central government did not seem to gain traction in Britain.

Yet examples existed closer at home. Since the 1970s, referendums – previously almost unknown in Britain – have been used in popular decision-making. There has been no fixed formula. In the 1975 EEC referendum a simple majority was required, but the 1979 devolution referendums in Scotland and Wales, preceded by legislative acts, were framed more cautiously. Parliament was firmly in control of the process, and an amendment (Section 58(2) of the 1978 Scotland Act) by the Labour MP George Cunningham, supported by Conservative and Labour anti-devolutionists, stipulated that for the Acts to become law, an affirmative vote of 40% of the total registered electorate would be required as well as a simple majority.

The amendment imposed a qualified majority, by making the vote of every registered voter count – meaning non-voters were counted as votes against. The electoral register used was based on a qualifying date of October 1978. There were over 500,000 “unavoidable non-voters” including prisoners, hospital patients, and those moving home. Most notoriously, the amendment meant those registered in October 1978 who had since died were counted as votes against. The grievances were not all on one side—some argued the 40% rule reduced the anti-devolution vote, since many voters, by equating abstention with casting a vote against, stayed at home. The 40 per cent threshold was not attained in either country but in Scotland a majority of votes cast (51.6 per cent) voted for devolution but on a 63.72 percent turnout, the total amounted to only 32.9 per cent of registered voters. While making no difference in Wales, the amendment negated the simple majority achieved in Scotland.

The historical and political context was crucial in establishing the framework for the respective referendums. The 1974 Labour government, lukewarm on devolution but needing SNP parliamentary votes, reluctantly acted on the 1973 Kilbrandon Report’s recommendations, but readily accepted the Cunningham amendment as a safeguard. By contrast, the 1997 referendums for a Scottish Parliament and Welsh Assembly promoted by the pro-devolution Blair Government imposed no qualified majority rule. Despite the establishment of the Electoral Commission (EC) with referendum management, via the Political Parties, Elections, and Referendums Act (PPERA) of 2000 being statutory acknowledgment of referendums as a fixture in the UK’s political landscape, little has changed. In 2014 and 2016 the EC played a key role in ensuring intelligible wording of questions but it neither drafts original questions nor decides what constitutes a majority vote – those decisions are made by Parliament, and subject to the vicissitudes of party politics.

The simple majority formula used in the 2011 AV vote, Scottish independence vote of 2014 and the EU referendum of 2016 followed the format of 1975 and 1997 rather than the more cautious provisions of 1979. The assumption that the policy preferences of the main Westminster parties were shared by a majority of the electorate was reckless and dangerous. While validated in 2011 and 2014 (though for Scotland, as with Quebec, the result was perhaps closer than it should have been) the gamble did not pay off in 2016.
The Cameron government was remarkably complacent not only in setting the referendum terms but in failing to make any contingency plans (unlike in 1975) in the event of an EU exit – an extraordinary dereliction of duty, which, as the 2017 House of Commons report ‘Lessons Learned from the EU Referendum’ stated, led to unnecessary political instability: “Such preparation would negate the need for the Prime Minister to resign … It should be reasonable to presume that the sitting Prime Minister and his/her administration will continue in office and take responsibility for the referendum result in either eventuality”.

How far David Cameron was genuinely committed to the referendum promised in 2013 remains unknown. If a “bluff-call”, it clearly failed but in having to deliver a referendum it would have been wise to have considered the format more carefully. Qualified majorities are often used in the public and private sectors (not least in the EU), and in an electoral system underpinned by majoritarian principles, it is questionable how difficult it would have been to impose. While the proposal would probably have met with opposition from Eurosceptics within the Conservative Party, that doesn’t seem like a good reason for adopting a hazardous simple majority formula, lending credence to the view that Cameron was guilty of putting party before country.

Leading political scientists, including Vernon Bogdanor and Peter Hennessy, have expressed grave misgivings over using referendums, and the lesson for post-Brexit British governments seems to be to tread carefully. Before the 2016 referendum, Lord Kerr of Kinlochard was one of the few who found the absence of a threshold “constitutionally quite surprising for a decision as big as this”. Afterwards, of course, many Remainers concurred.

Britain’s non-codified constitution ensures referendums are considered legally advisory rather than politically binding but in practice, no government has been prepared to ignore the outcome of a referendum. Given these customary pressures, it makes sense to ensure a proper balance between expressions of the popular will while minimising the chances of a fierce populist outburst.

How different things looked in 1817, when George Canning stated:

“When I am told that the House of Commons is not sufficiently identified with the people, to catch their every nascent wish and to act upon their every transient impression,—that it is not the immediate, passive, unreasoning organ of popular volition,—I answer, thank God that it is not! I answer, that according to no principle of our constitution, was it ever meant to be so;—and that it never pretended to be so, nor ever can pretend to be so, without bringing ruin and misery upon the kingdom.”

By using referendums, we have moved far from Canning’s deliberative assembly model, but the Canadian example indicates that referendums can be – and should be – more closely managed. Canada’s Clarity Act might have been a useful reference point for British policy-makers, for protecting territorial integrity and promoting political stability are fundamental elements of responsible government. Imposing more rigorous conditions may seem Machiavellian to some, but it is far from incompatible with maintaining democratic legitimacy – in many ways it may ensure more mature and measured decision-making in the contemplation of far-reaching constitutional issues. The alternative can be decisions made on a transitory and/or ill-informed basis.

This post represents the views of the author and not those of the Brexit blog, nor LSE.

Gordon Bannerman is a professor at the University of Guelph-Humber.

Religious diversity in the workplace: the case for alternative dispute resolution

Élise Rouméas uses a recent court case involving an NHS nurse being dismissed for proselytising religious views to explain why the matter could have been handled differently. Specifically, she argues that cases such as this illustrate how alternative dispute resolution ought to be seen as a desirable complement to the rule of law rather than a cheaper alternative.

In 2016, Sarah Kuteh, a nurse at the NHS, was dismissed for ‘gross misconduct’. She was found guilty of inappropriate proselytising. While conducting patient assessments, she initiated conversations about faith, gave a Bible, and prayed. She persisted in sharing her beliefs in spite of patient complaints as well as warnings from her management. In May 2019, a Court of Appeal confirmed that Kuteh had been fairly dismissed.

In contesting her dismissal, Kuteh claimed that evangelising was part of her right to religious freedom. Article 9 of the European Convention on Human Rights (ECHR) protects the right to manifest one’s religion or belief. Kuteh argued that she didn’t engage in wrongful proselytising, but rather freely exercised her protected right to manifest her belief — why would it be so wrong to share words of hope with those she cared for?

It is hard not to feel for Kuteh as she sheds tears in shock of her dismissal and the long legal battle that ensued. Mother of two, she found herself in a precarious economic situation. She suffered from media exposure and missed her nursing career. Her ordeal appears disproportionate compared to the harm she inflicted on patients. Claimants reported feeling ‘awkward’ and ‘uncomfortable’, while one said what happened was ‘very bizarre’ and a ‘Monty Python skit’.

Despite my genuine compassion for Kuteh, I do believe that religious freedom at work should not be unlimited. Not all religious expressions ought to be protected, not all demands for exemptions ought to be met. For instance, it is crucial that judges refrain from proselyting, given their role as public officials and practitioners of the law. Scheduling arrangements for religious holidays should not place an excessive burden on other employees. Religious claims must be carefully balanced against other workplace considerations.

Human right and non-discrimination law provide a general framework to regulate religious freedom. Article 9 of the ECHR famously protects ‘the right to freedom of thought, conscience and religion’, including the freedom to change religion or to manifest one’s belief individually or collectively. A 2000 European Union Council Directive crucially distinguishes between direct and indirect discrimination on religion or belief (among other protected characteristics). Direct discrimination involves treating someone less favourably on grounds of their religion or belief — because they are Christian, Muslim, Jew or atheist.  Indirect discrimination is more subtle; it occurs when an apparently neutral rule has the unfortunate effect of disadvantaging individuals holding specific religious beliefs. For instance, a workplace regulation on uniforms can lead to the prohibition of some religious dress code. Whether such a rule is justified ought to be assessed on a case-by-case basis.

Although the law provides a useful general framework, each situation is specific and requires an individual judgement: to what extent was Kuteh’s religious talk inappropriate? Should firms offer part-time work to accommodate religious duties? In which cases are visible religious signs incompatible with a profession? A number of court cases have dealt with these types of workplace conflicts involving religion, such as Ahmad v. United Kingdom (1981) and Eweida v British Airways Plc (2010).

But while court cases are key for the judicial development of rights, at an individual level they are wrenching. Reflecting on her two-year legal battle, Kuteh sighed: ‘I never thought my story was gonna be over the media anyway (…) It’s been costly, very costly.’ Litigation is no panacea; it is costly both on a material and immaterial level.  It should remain the last resort, while other procedures should be explored to negotiate religious freedom at work.

Here Alternative Dispute Resolution (ADR) comes into play. ADR refers to a set of dispute processing methods, such as arbitration and mediation. Unlike litigation, ADR relies on the consent of the parties involved and seek a mutually satisfactory solution. In the UK, ACAS (the Advisory, Conciliation and Arbitration Service) is a public provider of ADR. Acas helps disputants find an arrangement (called ‘Early Conciliation’) before submitting a claim to an employment tribunal.

It does not seem that Kuteh’s dismissal was preceded by an attempt at conciliation. Whether a mediation could have achieved a more favourable outcome in Kuteh’s case is pure speculation. Yet it would have been worth a try, to avoid years of anxiety.

A mediator could have intervened before Kuteh’s dismissal to facilitate communication between her and the Matron, Suki Gill. Gill gave a very explicit warning to Kuteh in a private discussion detailed in a letter, expressing patients’ complaints, and concluding that no discussion about religion should occur in the assessments, unless initiated by patients themselves. Gill’s warning was perfectly clear. Yet Kuteh did not obey. She most likely thought that the prohibition was unjustified and that her duty to spread the Gospel remained undefeated.

A professional mediation could have improved mutual understanding and explored paths to compromise. Perhaps Kuteh could have been persuaded that it was insensitive and unprofessional to impose her religious views on fragile patients. Perhaps she could have been given a different role within the NHS which did not involve conducting these patient assessments. Perhaps she could have been allowed instead to wear a small cross as a visual testimony of her faith. A compromise solution would have been better for her than the radical option of her dismissal, which left her mortified and impoverished.

________________

Note: The above draws on the author’s published work in Political Studies.

About the Author

Élise Rouméas is Postdoctoral Research Associate in the Department of Politics and International Relations at the University of Oxford.

 

 

 

All articles posted on this blog give the views of the author(s), and not the position of LSE British Politics and Policy, nor of the London School of Economics and Political Science. Featured image credit: Pixabay (Public Domain).

Despicable migrants? UK’s treatment of foreign criminals will only harden after Brexit

An increasing number of EU nationals who have committed crimes find themselves being deported. In the context of the UK’s tortured departure from the EU, the deportation of foreign criminals has become a touchstone of British notions of the public goodwrites Nevena Nancheva (Kingston University London). She argues that the UK has effectively curtailed the rights of what it sees as a particularly despicable group of migrants – foreign criminals. Rather than looking at its own inequalities, it has chosen to tighten its physical and invisible borders. 

Britain used to deport its criminals. In fact, it used to deport all ‘wicked and evil-disposed persons’ whom the judges were too merciful to execute instantaneously for a long list of crimes against property, or indeed, for being idle or seeking employment, as section V of the Transportation Act of 1717 mandates. Such offenders were transported originally to the West Indies (where they habitually neglected to stay), then to America (a secret often brushed under the carpet by American historians and politicians alike), then, amidst the turmoil of American revolution and to prevent the French from extending their empire, to Australia in 1787.

In those days, the dispossessed, the idle, the vagrant, the lewd fell into the category of criminals because they threatened the established social order. They were bound for expulsion to protect sovereign landowners, the common good, and the good society. The mobile, in particular, were frowned upon as ‘the chrysalis for every species of criminal’. From a longue durée historical perspective, Bridget Anderson spends a lot of time unpacking the link between vagrancy and criminality in Britain, positioning the migrant as essentially a ‘failed citizen’.

Today, we begrudgingly agree that our criminals, petty or not, are our own problem and should not be dumped on indigenous peoples around the world. (That is, unless we can strip them of their citizenship and invite Bangladesh to deal with them!) Foreign criminals, however, are a totally different matter: a cause célèbre for a host of Labour and Tory leaders, the deportation of foreign criminals has gradually become the norm, rather than the exception to the rule.

Changing the rule book

The notion of Britain’s ‘public good’ has remained intrinsically linked to this development: under the 1971 Immigration Act, non-citizens are liable to deportation if this is deemed to be ‘conducive to the public good’ (section 3(5)). There is no explicit mention of criminality in this law, but the 2007 UK Borders Act amends the omission by explaining that ‘the deportation of a foreign criminal is conducive to the public good’ for the purposes of the above (section 32).

The amendment came after a string of scandals and heated public debates over the fate of some 1,023 foreigners who had been released from British prisons into society since 1999, rather than considered for deportation, costing the office of the then Home Secretary Charles Clarke. It is perhaps not coincidental that these discussions arose in the process of EU enlargement to the 10 former communist states of Central and Eastern Europe. Even though regions in turmoil (such as Somalia) or human rights (e.g. international refugee protection) were cited at the time as constraints on deporting foreign criminals, Charles Clarke went on to write a book about the threat of migration within the EU, capturing a long-standing concern of the British public with the open borders and the freedom of movement which the EU seemed to be all about.

The invisible boundaries of Britain

In the context of Brexit and UK’s tortured extraction from the EU, the deportation of foreign criminals has become an interesting touchstone of British notions of the public good: that elusive abstraction which pits the lives and rights of concrete men, women and children against a fuzzy and imagined, but clearly incomparably more significant, entity: the nation. In 2018, I conducted a pilot study of the impact of deportation on the families of foreign criminals in the designated foreign nationals male prison HMP Maidstone. What I discovered in my conversations with matter-of-fact prison wives, is that the law is implemented with implicit disregard for the integrity of their families and the welfare of their children. That the much-lauded ‘public good’, upheld in the letters from the Home Office and the decisions by the judges, should trump the best interests of these families points to the boundaries of Britain’s community of value. As the Brexit dynamics narrows these boundaries, the distinctions between those who clearly do not belong (such as foreign criminals) and those who should belong but are not really welcome (such as EU nationals) become blurred.

Image: author’s, Walls of HMP Maidstone, The Visits Building (1819).

No Article 8 rights for foreign criminals

Even the immigration-control-obsessed 2007 UK Borders Act provides an exception (section 33(2)(a)) to the deportation of foreign criminals in cases where the removal of an individual would breach his or her rights under the European Convention on Human Rights, in particular the right to family and private life under Article 8. Before a decision for deportation was made, the individual’s rights would be weighed against the public interest on the basis of a five-stage test (the case of R (Razgar) v SSHD [2004] UKHL 27), normally by a panel of judges at a tribunal, covering a wide variety of factors (‘as varied as life itself’, lawyer Nick Nason sympathetically explains). These rules were swiftly changed, first by the executive in 2012 and then by the legislature in 2014, to limit the cases when individual rights would disable deportation, and to give decisively greater weight to the public interest.

Thus, a prison sentence of anything more than 12 months could justify interference with the rights of a foreign citizen to maintain his or her spousal or parental relationships in the UK, which would otherwise have been protected under human rights legislation. The Secretary of State’s practice to ‘certify’ these rights as ‘clearly unfounded’ (aka ‘deport now, appeal later’) aimed at ‘cracking down on the appeals conveyor belt used by criminals to delay their removal from the UK’, as then Immigration Minister James Brokenshire claimed after the practice was upheld at the court of appeal in 2015.

Disturbing stories began to emerge of petty criminals being ‘treated like animals’, apprehended when signing on with the Home Office and rushed on chartered flights to Jamaica at the break of dawn. Even as the Supreme Court ultimately ruled the system for deportation before appeal unlawful, the Windrush scandal followed in 2018, to illustrate the extreme extents to which Britain’s fascination with deportations had legitimised the practice.

What of EU criminals?

Interestingly, since 2014 an increasing number of EU nationals find themselves among the deported foreign criminals. This is somewhat surprising since EU law mandates a much higher level of protection against deportation for EU citizens than the domestic rules for other foreign criminals. This number is in addition to the homeless EU nationals deported from the UK on the basis of Home Office’s creative interpretation of EU Treaty rights as incompatible with homelessness. The removal of homeless EU nationals has fed into Britain’s own soul-searching over the enforcement of the 1824 Vagrancy Act continuing to criminalise homelessness and begging!

In favour of closure…

So Britain seems to have gone full circle from the days of the penal colonies and the deported mobile poor. It has effectively curtailed the rights of a particularly despicable group of migrants – foreign criminals – all the while making clear its displeasure with order-disturbing vagrants. Rather than looking at its own inequalities, it has chosen to tighten its physical and invisible borders. Brexit will inevitably bring further legal restrictions in the governance of migration. One can only surmise their impact on the public good of Britain after the EU.

This post represents the views of the author and not those of the Brexit blog, nor LSE. 

Dr Nevena Nancheva teaches Politics, International Relations and Human Rights at Kingston University London. She has studied EU migration to the UK since 2016, with a British Academy grant, building an academic network of scholars working on the topic. Her current research focuses on transnational identities and the marginalisation of migrants in the context of Brexit. This piece is based on a pilot study of EU nationals in detention with a view to family reunification and human rights protection.

Powered by WordPress | Designed by: index backlink | Thanks to insanity workout, car insurance and cyber security