|Modern parliamentary democracy first developed in Great Britain and Britons played a major role in spreading democracy around the world – for example, through the Commonwealth. However, at the start of the 21st century, Britain itself was no longer a fully independent democratic country.
As part of the European Union bloc, unelected and immovable foreign authorities determined a large part of its laws, policies, and taxes. Domestically meanwhile, such things as extra-parliamentary bureaucratic lawmaking, curbs on local political autonomy, moves from direct to indirect representation, and restrictions on the private funding and advertising of political parties had diminished democracy.
This study provides a detailed review of the main political independence and constitutional reform requirements for restoring and extending democracy in present-day Britain.
1. The Restoration and Extension Of British Democracy: An Overview of the Main Requirements
Introduction and summary of the contents*
2. National Political Independence and Democracy: Withdrawal from the European Union
The basic incompatibility between EU membership and the maintenance of parliamentary democracy, business-economic freedom, and the rule of law in Britain* The undemocratic nature of EU law- and policy-making institutions: the Parliament, Ministerial Councils, Commission, and Court of Justice* Democratic objections to the proposed new bloc Constitution*
3. The Reform of Parliament and Central Government
Proposals for reforming the House of Commons, Lords, and Monarchy* The case for (e.g.) restoring to MPs the exclusive right to elect the parliamentary party leader/Prime Minister, a new constitutional ban on the delegation of parliamentary legislative and fiscal powers, and a direct territorially (county) elected Upper House* Limiting the powers of the executive* Civil Service reform* The abolition of bureaucratic regulatory authorities and other quangos*
4. Judicial Independence and the Rule of Law
Proposals for their protection and extension in Britain* Reversing the negative effects of (e.g.) EU bloc membership, laws that allow the executive to assume emergency powers and suspend ancient basic legal rights in peacetime, the growth of state regulatory bureaucracies that make, adjudicate, and enforce their own laws, and corruption and abuse of power in the civil justice system* Preventing governments from manipulating judicial appointments – and the judiciary from interfering in matters that are the legitimate prerogative of elected politicians* Deregulation and the extension of normal rights, freedom, and equality under the law to businesspersons*
5. The Legal Protection of Democracy and Freedom: The Case for a New Written Constitution and Bill of Rights
The main arguments for a written judiciable Constitution* Existing basic legal limits on governmental power in Britain, the United States, and Europe* The case for a new Supreme Court-enforceable Bill of Rights to protect economic, political, judicial, communication, and personal rights and freedoms in Britain*
6. The Restoration of Local Democracy
The decline of local democracy – and the main requirements for its restoration* Local/county versus mega-regional government* The restoration of local policing* The restoration of the link between taxation and political representation at the local level* The reform and reduction of local taxation* The limits of local government in a free society* Local electoral reform*
7. Electoral System Reform: Increasing Competition and Voter Choice and Influence
The basic similarities between political electoral and commercial protectionism* Anti-competitive electoral regulations, official subsidies, and curbs on party funding, advertising, and campaign spending (etc.) in Britain* The case for their abolition* Direct versus indirect political representation* The threat to open competitive democracy from state party funding and establishment* Increasing the number of elected positions and candidates in Britain* Substituting direct for indirect political representation* Proposals for widening the franchise, equal-sized constituencies, up-to-date electoral registers, two-stage elections, more referendums, increased tele-voting, and better protection against electoral fraud, malpractice, and error (etc.)*
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First published 2006. New impression 2012
167 two-column pages
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● Genuine democratic electoral reform in Britain would entail (a) halting and reversing recent experiments in indirect (party proportional, corporatist) representation and (b) maximizing competition and voter choice and influence under the traditional system of direct representation.
There are a number of possible ways of achieving the latter. Legislation for equal-sized constituencies and measures to ensure more accurate and up-to-date electoral registers would greatly improve direct representation. In addition, holding two-stage elections or run-off ballots in multi-candidate constituencies would ensure that no candidate won by getting just a small portion of the total vote.
Separate two-stage or run-off balloting is more complicated and expensive than single-stage balloting (whether of the first-past-the-post or the alternative-voting-on-the-day kind). Typically, separate two-stage balloting is reserved for electing elite executive post-holders such as heads of state, mayors, or national party leaders rather than ordinary assembly representatives. However, modern information and communications technology has enormously increased the speed and reduced the cost and effort of political balloting generally. There are nowadays no good reasons for not holding separate first and second or run-off ballots for all significant political positions (legislative as well as executive) where three or more candidates are standing – to ensure that the final winner has more than half the total number of votes cast.
Introducing more technologically advanced, voter-friendly and secure election and political communications methods would benefit democracy in other ways.
Finally, holding more referendums to decide important political issues at national and local-regional level would extend democracy in Britain … (page 7)
● The so-called Charter of Fundamental Rights incorporated in the constitution would be a final major general vehicle for centralizing and extending EU powers. The charter would:
- be legally enforceable on all public authorities across the bloc;
- prevail over all existing statutory rights codes, conventions, and systems of common law protection; and
- impose a wide range of new positive obligations on national governments and other public bodies.
Amongst other things, governments would have to provide subsidized housing, set maximum working hours, and require companies to consult with their employees before making important decisions. In the UK, the Parliament would have to repeal comparatively liberal national employment laws and bring the country’s public health, welfare, and educational policies into line with general continental practice.
Adopting the Charter of Fundamental Rights would result in a much more interventionist state. It would significantly increase the power of the judiciary. The courts would be able to insist on changes in any national laws or policies they deemed to violate the charter. In addition, the ambiguous and wide-ranging nature of many of the charter’s clauses would mean judges would have considerable leeway in interpreting it… (page 21)
● In Britain as elsewhere, an overly large state has resulted in numerous appointed officials rather than elected politicians and independent judges exercising political-legal power. Across industry and commerce, regulatory bureaucracies combining legal rulemaking with adjudication and enforcement powers have proliferated. In the course of investigating breaches of their own rules, state officials often employ authoritarian policing methods – such as dawn raids in public, entering and searching premises without a warrant, and demanding self-incriminating evidence from suspects. They may then subject those found guilty to heavy and disproportionate penalties – perhaps unlimited fines or collective company punishments of up to 10% of three years’ turnover for the alleged wrongdoings of particular individuals.
Regulatory bureaucracy imposes heavy costs on the economy. There are extra costs to firms and industries of doing routine business. Fines and compulsory levies are a major burden. The real or lost opportunity costs of deterring innovation and increasing legal risk and hassle are incalculable…
In the 1940s, Lord Justice Hewart described political bureaucracy (rule by unelected officials) as The New Despotism.
When the Tories returned to power in 1951, they had a giant “bonfire of controls” to free the economy from the stultifying effects of wartime and post-war Labour state regulation. Subsequently however, regulatory bureaucracy mushroomed again – under both Tory and Labour governments.
Rule by unelected office holders has inevitably expanded as the volume and complexity of state intervention has increased beyond the limits that Parliament and the regular courts and police service are capable of handling.
A huge new “bonfire of controls” or programme of deregulation is now required to restore democracy and freedom under the rule of law in this area.
Only large-scale secular reduction in the scale and range of activities of government can achieve substantial sustained deregulation and de-bureaucratization. Unnecessary state interference in business need scrapping – and the overall structural differentiation, functional specialization, and autonomy of the economic and political societal sub-systems of the society needs increasing.
In recent times, major features of business-economic liberalizations have been:
· privatization, or the selling off of state-owned enterprises;
· cuts in government spending and taxation; and
· the abolition of wage, price, and exchange rate controls.
However, cuts in government red tape (industrial-commercial regulation, bureaucracy) have not been deep-seated or wide-ranging enough. Rather than being able to operate freely in markets based on voluntary contract and association, precepts such as caveat emptor (“let the buyer beware”), and the general laws of the land in a modern liberalized economy, there is heavy regulation of British firms and customers by bureaucrats… (page 50)
● For centuries, the British courts have upheld freedom of contract and association and protected private property against direct and indirect official expropriations of various kinds. There is a long established general common law ban on compulsory unpaid labour (serfdom, slavery). In recent times, a number of significant human rights court cases have confirmed the basic rights and liberties of businesspersons in relation to property (etc.).
However, despite a general secular trend against official discrimination and inequality in society, there is still substantial and systematic unfair political-legal treatment of businesspersons.
In the future, the law might explicitly prohibit official discrimination against businesspersons as a class in much the same way as it prohibits discrimination against racial/religious minorities and women (etc.).
New basic laws could specifically forbid the government from forcing business owner-managers to work for the state free – e.g. on employee tax-benefit administration, or the provision of statistical and other research data.
It could also become a basic offence for the authorities to institute inequality and exploitation in business-economic relationships on behalf of third party majority interests. On this last score, there might be new specific prohibitions on Parliament and the government: forcing businesspersons to hire while stopping them from freely firing employees;obliging employers to provide staff with free medical, pensions and insurance, educational and training, or other benefits out of their own pockets;imposing price controls or unfair terms and conditions on sales contracts designed to benefit buyers at the expense of sellers; or exploiting property owners for the benefit of tenants by imposing rent controls and secure tenancies on them… (page 73)
● The Blair Labour government claimed to be addressing liberal concerns when it incorporated the European Convention on Human Rights into UK domestic law. However, the protections offered by the convention are deficient in key respects.
As said, the provisions of the ECHR do not specifically address the British authorities. The courts also cannot force Parliament and the government to abide by the convention.
The convention is silent on many major modern rights issues. It has very little to say about rights and liberties at the institutional, societal, or macro-level. Meanwhile what protection it does offer in the area of personal rights and liberties is generalized, ambiguous, and qualified.
To match the standards of the original British and American bills, a new UK Bill of Rights would have to apply specifically to this country.
Like other statutes, it would have to be clear and unequivocal in its provisions. That is, it would have to state precisely what was unlawful and provide examples of the kinds of executive, legislative, or judicial-policing actions that would constitute an offence.
It would have to be enforceable in practice in the courts.
It would also have to be up-to-date and comprehensive in its coverage – and be capable of amendment by due constitutional process if new violations became evident or wider circumstances changed. An effective new British Bill of Rights would have to be wide-ranging because official curbs on personal rights and freedoms are so wide-ranging nowadays. Some present-day curbs of individual liberty would be familiar to the authors of the original Bill of Rights. However, many others would appear highly strange and novel.
Finally, beyond addressing, itemizing, and prohibiting official curbs on personal rights and liberties, a new Bill of Rights would have to ban violations of rights and liberties at the institutional (societal, macro-) level. Otherwise, it would not provide effective protection. Personal and social rights are interdependent and mutually reinforcing. Significant government infringements of personal liberty diminish wider socio-cultural rights and freedoms – and vice versa. It is simply not possible to secure individual freedom in the absence of institutional business-economic, political, and mass media of communication (etc.) freedom… (page 111)
● In continental Europe, systems of indirect political representation produce comparatively unstable and/or gridlocked municipal assemblies. In this situation, having directly elected executive mayors will often enhance political competition and voter choice and influence – and speed-up decision-making and improve administrative cost efficiency.
There is no parallel case for directly elected executive mayors in Britain. However, there is a case for making directly representative local authorities in the UK more democratic and for modernizing and improving their functioning.
There is significant scope for electoral reform to increase competitiveness and voter choice and influence under direct representation.
More frequent ward boundary changes and updates of council electoral registers would enhance local democracy. Meanwhile, as with parliamentary elections, moving to two-stage elections with run-off ballots for the two most popular councillor candidates would solve the problem of persons being elected on the basis of very small portions of the total vote – likely when elections attract sizeable fields and votes are heavily split.
Two-stage balloting would increase the time and expense of conducting council elections. However, greater use of postal voting and new information and communications technologies would speed up and reduce the cost of voting overall. It would also be likely to boost election turnouts and facilitate citizen participation in local government generally.
Introducing new ICT would make it much easier and cheaper to hold referendums on major local political issues. Thus, referendums might become more than just occasional devices for sanctioning major policy decisions or constitutional-type changes. They could become a regular means of approving council budgets and tax/expenditure levels, determining the size of local government payrolls, or deciding whether councils should continue to provide particular services or privatize them (etc.)… (pages 134-135)
● There are laws to ensure the fair conduct of referendum votes across Britain. However, beyond constitutional-type issues, there is no consensus as to what other important matters referendums should decide.
If referendums did become a regular feature of political policy- and law-making in Britain, the wider constitutional implications would be enormous. In effect, there would now be a fourth branch of government: the People. New basic rules and procedures would be required to:
- redefine and stabilize the separation of powers;
- maintain the smooth and efficient workings of government; and
- limit direct majority powers to protect minority rights and freedoms (etc.).
Modern information and communications technology has greatly increased the scope for political policy- and law-making by referendum. Technically, it is possible to put more or less any new government policy or piece of legislation before the people for a final decision. At the local level, citizens can vote on everything from council tax and expenditure levels, through specific programmes and policies, to whether or not entire authorities should split, merge, dissolve or have their assets and functions privatized.
Any future new written British constitution and Bill of Rights would almost certainly have to get popular direct approval. Referendums would also be necessary before making any significant changes in the system of governance. Under the constitution, citizens might have a new legal right to initiate referendums on any subject by collecting sufficient signatures on a petition.
Nonetheless, democracy at both the national and local level is likely to remain predominantly representative – rather than become direct. There are benefits in division of labour or functional specialization in politics as in the economy and other areas of social life. Good political policy- and law-making is complex and time-consuming. Proposed new taxes, expenditures, and laws need careful scrutiny. It is necessary to analyze the effects of past policies as well as to practically implement and monitor new laws and programmes.
Moreover, the legislature is only one branch of government. Even if the public did have the time and inclination to perform basic legislative tasks, it would still be necessary to have specialist-professional politicians perform executive functions. Meanwhile, local communities and individuals would still want to elect parliamentary representatives to look after their own particular interests in the state… (page 162)