When to go?

A March election?  Two advantages for Labour that I can see, and one disadvantage. 

The first advantage is that, as Andrew Grice points out, it avoids the risk that Britain will be entering a double-dip recession just as a May election got underway.  Given that the last quarter’s decline has just been gently re-evaluated up a touch, it must be likely that the next quarter will show the UK finally returning to growth.  However, the forthcoming rise in VAT, coupled with the end of Quantitative Easing will very possibly tip it back under again.  Running to the country beforehand at least avoids that possibility.

The second advantage is that Labour don’t have to have a budget.  They can avoid both making spending cuts/raising taxes to reduce the deficit and increasing borrowing to maintain it – the choice doesn’t have to be made.  Presentationally alone that is a benefit to Labour.

And the disadvantage?  Labour are sinking quite a lot of effort into their ‘living will’ strategy whereby the Tories are hamstrung by existing Labour policies.  Perhaps chief among these is the new 50p rate – it won’t raise any money, it’s unpopular with Tory voters and it will be a barrier to growth.  Yet the politics of repealing it at a time of recession are extremely tricky.  Yet if there is no Labour budget in April, then the new rate will never have been implemented.  It is far easier politically not to implement a new tax than it is to repeal an existing one.  By going early, Labour deprive themselves of their last opportunity to tie Tory hands.  May (or June if things are really desperate) still looks like the best bet to me.

Of polls: newsworthy and unnewsworthy

Mori: a six point Tory lead.  ARS: a seventeen point Tory lead.  Two polls then, one of them newsworthy, and one of them not.  This is a story of narratives boys and girls, and I would understand if you want to duck out now – knowing my predilection for these things.

The media is bored.  The big story has been the same now since the bottled election all the way back in 2007 – Labour are going to lose the election, and the Conservatives are going to win it.  There’s only so much you can do with this story – only so many stories on potential splits in the future, or rumours about possibly unhappy backbenchers you can write.  It doesn’t help, of course, that the party, sensing victory is just around the corner are, for the most part, playing down tensions and avoiding arguments.  Yawno.

But look!  A poll!  That shows Labour almost within touching distance!  Incidentally, take a moment to see how terribly demoralised Labour must be to view a poll that shows them on the same poll rating achieved by William Hague in 2001 as a success.  But anyway, this poll opens up a whole variety of possibilities – a Hung Parliament!  Now that’s a story…

Cue for a whole range of ‘what happens if…’ articles, variously looking at minority Governments, kingmaking Lib Dems, coalitions, whether Cameron can survive as leader – the list is endless.  And everyone in the political media is breathing a great sigh of relief that they don’t have to rehash the same ‘what will Cameron’s first cabinet look like?’ articles for the next six months.  Such a relief is it that, when a more recent poll indicates that Labour are every bit as friar-tucked as we all thought, no-one even looks up from their new article about whether Cameron is now more like Heath or Wilson.  Some stories are too good to let go of, even when they’re nonsense.

Poison pills and living wills

The Queen’s Speech is usually most noticeable for the slight grimace of distaste that crosses her Majesty’s face as she is compelled to churn through the various empty and unmelodious phrases that New Labour has adapted from the worst of management speak and PR puffery.  This year, however, it is something else that has caught the eye.

The Government is trying, in its dying days, to control Parliament from beyond the electoral grave.  In the seven minutes that her Majesty was speaking, three of the prospective bills announced were explicitly designed to tie the hands of the next Government.

Fiscal Responsibility Bill
The Bill aims to put the government’s deficit reduction plan on a statutory footing in order to halve the budget deficit in 4 years.  Details to be set out at the Pre-Budget Report.

Child Poverty Bill
The Bill enshrines in law the Government’s commitment to end child poverty by 2020.

International Development Spending (Draft Bill)
The Draft Bill would ensure that the Government spends 0.7 per cent of Gross National Income on Overseas Development Aid from 2013.

It should, of course, go without saying that these Bills are constitutionally meaningless.  No Government has the power to insist on the policies of its successor.  Further, they are deliberately mischief-making.  With regard to the first, this Government has accelerated the increase of the deficit to record levels, and has decried any calls for its reduction as ‘Tory cuts’.  With regard to the second, the Government is already on course to miss its 2010 targets, and has not indicated how it intends to meet targets for 2020.  The third is less obviously hypocritical, but since the Tories have pledged to match Labour spending on Overseas Aid, it is unnecessary as well as being unconstitutional.

The dirty politics angle is clear too – all these are designed to make the Tories sound bad for opposing them.  I suspect, however, that this is too obvious a heffalump trap for Cameron to fall into.  Indeed, his early response of rubbishing the entire programme as electioneering claptrap suggests that this scheme might rebound on Labour just as so many other ‘clever’ ideas have.

As a final illustrative side-note on Gordon Brown the master tactician, here’s a snapshot from the Guardian.

We've seen footage of Gordon Brown and David Cameron walking side by side to the Lords. Brown is talking, but we can't tell what he's saying. Apparently he just talks, without giving Cameron a chance to answer back, so that he looks dominant in the TV pictures.

Only a few more months…

A killer argument? No, no it isn't

It is always a temptation for journalists wishing to make a cheap point to accuse opponents as lacking historical knowledge.  It implies a sort of effortless superiority of the intellect.  It is, however, a technique that should be handled with care, as it is extremely liable to rebound upon its user.  Take Nick Cohen in the Observer:

The phrase "Conservative intellectual" is not an oxymoron, but you can always spot a phoney Tory thinker when he or she says that they belong to the tradition of Edmund Burke and share his love for the "little platoons" of civil society. For Burke was a Whig, not a Tory.

You really can tell a phoney ‘historian’ when he or she cites 18th Century party divisions as if there were a straight continuity of politics from 1780 to present.  Modern political parties have a messy inheritance.  The Conservative Party has co-opted (in reverse order) National Liberals, Liberal Unionists, and Pittites. Interestingly, one party that does not form part of the Conservatives’ intellectual inheritance is the Tories of the 17th and 18th centuries.  The term ‘Tory’ as used to describe what we would now refer to as the Conservative Party was not widespread until about 1812 – the two ‘Tory’ parties are entirely separate.  Cohen, in trying to show up others’ historical ignorance has ended up by revealing his own.

This may not be the place to discuss the influence that Burke has had on Conservative philosophy (if there is such a thing), but there is absolutely no contradiction in a Conservative cleaving to Burkean theories of civil society – rather the reverse. 

Normal for Norfolk

Should Elizabeth Truss be deselected for having had an affair?  No, of course she shouldn’t.  But then, should local constituencies be entirely beholden to Central Office?  No, probably not.  It’s all a bit of a muddle, not helped by Norfolk’s, um, singular nature.

Trouble is, the Notting Hill lot have picked a fight with the wrong part of the world. This is rural Norfolk. Actually, given that the number of local landowners can be counted on the fingers of one hand, it's feudal Norfolk.

In Norfolk that might not be as absolute a unit of measurement as it should be…

Pity for the Prime Minister

Poor old Gordon Brown.  Not a sentence I write very often – at least not without a certain frisson of schadenfreude – but appropriate in this case.  Nothing sums up the problems that Gordon Brown has faced as Prime Minister better than this: when seeking to apologise to the mother of a dead soldier for making careless spelling mistakes in his letter of condolence, Gordon Brown assured us:

I have at all times acted in good faith seeking to do the right thing. I do not think anyone will believe that I write letters with any intent to cause offence.

For the first time since he became Prime Minister I feel genuinely sorry for him here.  Of course he didn’t intentionally cause offence.  Of course his motives were sincere, and his intentions good.  It is his incapacity to communicate this that has been his problem.  The man is emotionally tone deaf.  The transcript of the phone call makes for painful reading (and not simply because it should never have been placed in the public domain – some things are and should remain private).  Even when ringing up to apologise to a mother who has lost her son, he cannot bring himself simply to say sorry – he tries to justify himself, he denies that he made mistakes, and he finds himself getting into an argument over it all.

All that was needed to finish this story was an unqualified apology.  Get it over with, before you’re asked for it, and then stop talking about it.  Excellent advice from a Prime Minister who did get it.

What then of the wider implications of this story?  The first is that it is war between the Sun and the Government.  You can draw this conclusion not merely from the story itself – any tabloid would have seen this for the news story it is, the running of the story is not evidence of journalism beyond the pale – but from the response of the Government. 

On one level, of course, the sight of Peter Mandelson alleging a ‘contract’ between News International and the Tories – with the Tories to pay back favours in Government – and claiming that the Sun’s support for the Tories will damage the impartiality of the BBC is nauseating in its hypocrisy.  But apart from that, it is an indication that the Government have factored into their thinking a consistently hostile Sun and consider that they have nothing to lose in all-out war.  It is a reflection in some ways of Obama’s response to Fox News, and will I suspect be equally self-defeating – doubly so for Labour in fact, as the Sun supported them in the previous three elections – if the support of the Sun was desirable then, and presumably not a threat to democracy, why not now?

It does make that debate look a bit less likely though doesn’t it?

Mr E and Factortame...

A brief, a very brief, word on David Cameron’s proposed Sovereignty Act.  Mr Eugenides here provides what might be termed the classical view of Parliamentary Sovereignty in light of the Factortame litigation.  I think he (and, to be fair to him, many academic lawyers) have misinterpreted the ratio in Factortame.  What it rules is that, in the absence of explicit wording to the contrary, where European and UK legislation are in conflict European legislation will apply.  It did not rule on what would happen if there were specific wording to that effect.

Further, Mr E mentions his old law professor’s remedy – repeal the ECA 1972.  One thing on which all constitutional law in this area is agreed on is that the well and fountainhead of all EU law in this country is the ECA 1972.  The only method for legislation to be applicable in the UK is for it to be enacted by Statute through Parliament.  Since much EU law has direct effect, and need not therefore always be enacted through statute, the jurisprudential position has always been that it takes effect through the ECA.

What Cameron appears to be proposing is amending the ECA to include a referendum clause on future transfers of sovereignty (and specifically on the Euro) and introducing a Bill stating that ultimate legal sovereignty is inalienable, and rests with Parliament.  There are two things to say about this really.  The first is that if this is possible, it is probably unnecessary.  If Parliament can rule that it is sovereign, then it already is.  If it isn’t, it can’t – and no amount of legislation can make it so.

The second, however, is that by amending the ECA, Cameron is seeking to affect the flow of European law at the source.  If, as all British judges so far have affirmed, the ECA is the source of all European law, then an amendment to it that states that British law will ultimately be superior must, by sheer force of logic, stand.  Cameron is seeking to legislate an answer to a question that has, so far, been strenuously avoided in court.  Indeed, the only direct reference to this question in court was an obiter reference, long ago, by Lord Denning (who would not, I suspect, be considered a representative opinion) in Macarthys Ltd v Smith:

If the time should come when our Parliament deliberately passes an Act — with the intention of repudiating the Treaty or any provision in it — or intentionally of acting inconsistently with it — and says so in express terms — then . . . it would be the duty of our courts to follow the statute of our Parliament.

This question was deliberately ducked in Factortame, where it was accepted that any divergence between UK and EU law must be considered accidental.  The latest important case on this matter was Thoburn v Sunderland (the Metric martyr case) where, in an admittedly shonky judgement that tore great holes in constitutional law as we know it, Laws LJ said the following:

There is nothing in the ECA which allows the Court of Justice, or any other institutions of the EU, to touch or qualify the conditions of Parliament's legislative supremacy in the United Kingdom. Not because the legislature chose not to allow it; because by our law it could not allow it.

It is my opinion that, if a British Government actually desired it, legislation in deliberate breach of EU law would stand.  The courts are hamstrung by their need to bring everything in through the ECA.  Amend that, and you take away the last figleaf for judges to hide behind.  They would have to make up their minds as to whether the UK Parliament was truly legislatively supreme in the UK – and if not, where the authority for this constitutional revolution comes from.  It’s not enough to cry Factortame as a debate stopper…

Post ratification referendum?

Can we please put to bed the argument that, if Cameron wants to honour his word, he has to offer the British people a referendum on the Lisbon Treaty, regardless of whether or not it has been ratified?  The left are, understandably, cock-a-hoop that it looks like there will not be a referendum after all.  The smugness is more than a little nauseating, since it is as a result of Labour’s reneging on a manifesto commitment that there was not a referendum in the first place, but there we are.

On the face of it, Cameron’s words were pretty damn conclusive:

Today, I will give this cast-iron guarantee: If I become PM a Conservative government will hold a referendum on any EU treaty that emerges from these negotiations.

Although the next sentence is less so:

No treaty should be ratified without consulting the British people in a referendum.

But the argument put forward by both loons and lefties, that this pledge means that the Tories must either offer a referendum on Lisbon or break his word, is nonsense.  Because there is literally no point in a post-factum referendum on a Treaty that has been enacted.  If the Tories were able to force a referendum before the Czechs ratify the Treaty, then they would be able to withdraw British ratification.  Once Lisbon is ratified by everyone, it is no longer a Treaty, but a part of EU law.  It will not be unpickable, and a British referendum would be nothing more than a glorified opinion poll.

Referendums should be about determining future policy; not for determining what we all thought about the past.

Up the Swanee

I obviously have a natural affinity for Graeme Swann – as an off-spinner with batting pretensions he is after all a poor man’s version of me.  He is also one of the only reasons why I would consider reading Twitter.  He is also loaded with the right stuff:

Cricketers are the most natural sportsmen going — footballers are the lads who couldn’t count at school and rugby players are the accountants and bullies who couldn’t get into the cricket team.

Sound.