Democracy

A number of things have converged at once where I want to push back against how most people understand democracy. I’m going to try and first outline how democracy and governance works in general, how a parliamentary government works as a clear example, and then dive down into the UK tory, labour, and lib dem parties. First post democracy:

TL;DR: Government can’t know enough to reliably predict good policy in advance because Hayek. Hence the most important feature of democracy is the people being able to reverse bad policy. Doing this policy by policy is hard. It’s much easier to give politicians discretion to make policy and replace them with people who disagree if they do it wrong. Hence public discussion of policy: campaigns, debates, promises, facts, an educated electorate etc, are not vital to running a democracy. Political parties: including careerism, cronyism, ideological blinkers, partisan voting etc, are a vital part.

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The Leave Plan

Lots of people complain that the Leave Campaign in the EU referendum hasn’t put forward a plan for what we do after brexit. So, just to settle that question, here is the 100% official Leave Plan*.

We won’t be doing any Article 50 nonsense. We’re repudiating a treaty, why not just say so? Instead we will push through an act of parliament to do the following:

  1. Repeal the European Community Act entirely, and any other acts or sections of acts the HoC library can find that gives EU law effect in the UK.
  2. Repudiate all EU and proto-EU treaties, formally ending our membership of the EU, the EAA, and the Council of Europe.
  3. Strengthen the Human Rights Act. First by requiring the relevant parliamentary committee to meet, take evidence, and publish a report after any declaration of incompatibility. Second by requiring the Speaker to make time after this report for at least an hour of debate on the motion that the relevant lines(s), clause(s), section(s), or act(s) be repealed. Third by permitting the Supreme Court to issue an injunction preventing the government from applying the incompatible law until this motion is defeated.
  4. Make the jurisprudence of the ECHR and the ECJ invalid precedent in UK courts. Make previous judgments that have depended on such precedents also invalid precedent. Standard common law rules of interpretation will guide what the rights protected by the Human Rights Act are.
  5. Grant all persons physically present in the UK on 23rd of June indefinite leave to remain.
  6. Confirm that the current visa regime remains in place until explicitly replaced, freedom of movement from the EU remains provisionally.
  7. Amend the Fixed Term Parliaments Act to make the date for the next election the 1st Thursday in May 2017. This gives all parties time to make their policies on a wide range of former EU competencies clear and give a new parliamentary mandate to the considerable reforms made in our laws.
  8. Allow by SI any EU regulation to be added to a schedule of provisional regulations. These will remain in force until 2020, by which point they must all be replaced by standalone acts. The regulation must be quoted in full in the SI and amendments made to it elsewhere will not become part of UK law.
  9. Amend the Scotland Act to make it clear that holding referenda on constitutional matters is a reserved power held by the UK government only.

Some argue the UK is too weak to negotiate trade deals, we dispute this, but we will not be negotiating any trade deals. We are unilateralists in the trade war. A second act of parliament will:

  1. Abolish all tariffs and customs duties for international trade unconditionally.
  2. Pay a 90% subsidy to any company to pay for getting their product independently certified as conforming to the standards of some other nation.
  3. Unless specific UK laws apply to the article, permit for sale in the UK all goods which are fit for sale according to the standards of any of a list of nations (initially the IMF list of “Advanced Economies”) amendable by SI.
  4. Permit for sale in the UK any imported article which, if it were produced in the UK, would be permitted for sale.
  5. Make miscellaneous provisions for country of origin and national standards labelling.

The chancellor will issue an emergency budget within a month to replace from central funds all EU funding like for like. The reminder of our contribution will be used to cover contingencies and transitional arrangements, and to lower corporation taxes.

* ok so obviously not really. But that’s kind of my point here.

There is not, and never can be a “Leave Plan” because there is no “Leave Party” campaigning for political power. This is what I’d do. It’s never going to happen because parliament doesn’t agree with me.

But likewise Nigel Farage’s plan is never going to happen because parliament is doesn’t agree with him. Even Boris’s plan is rather moot. He has to get it through a europhile majority house of commons. And *that* assumes the parliamentary Tory party makes the mistake of putting him on the leadership ballot.

What happens after we leave is unknown, just like what happens after an election. A parliament will meet, it will have views, it will enact things. What things? Who knows, maybe bad things. But I’ll vote my MP out if they are.

What happens if we remain is also unknown. Will the Protocol of Frankfurt by pushed forward? Will the Five Presidents report? Will the same tactics as were used with the Lisbon Treaty be used to push these measures forward against the will of many of the peoples of Europe? Who knows. Damned if I know what to do if they are.

Why I will vote Leave.

I’ve written this and re-written this so many times. Here goes one last attempt.

People are surprised I’m a Eurosceptic. I’m liberal, I’m not a racist, I’m well educated, I’m cosmopolitan. Why am I on Nigel Farage’s team?

I am not now, nor have I ever been “on Nigel Farage’s team”.

TL;DR – This isn’t about which team is better, brexiters are awful people, they happen to be right. The EU doesn’t help protect important values in the UK. Migration is great, but not enough to justify the EU. Nations having different laws according to their own preferences is good.

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American Crisis

My prefered definition of ‘history’ is “telling true stories about the past”. This is a true story, but like all stories things that don’t advance the plot are left out. Remember when reading that the same story can be told in different ways. If you don’t like my story then do let me know yours.

I know the following for sure: There will be a serious constitutional crisis in America during my lifetime. Ditto the UK, ditto the EU, ditto China, every country has at least one crisis per lifetime. But let us focus on the US for now.

I don’t know what the crisis will be about. I don’t know who will be President. I don’t know what the distribution of State Governors will be. I don’t know what the judicial philosophy of the Supreme Court will be. I don’t know much. Can we get any hints from the past?

Past crises

Consider some turning points in US history. Look at them all and see if you spot a family resemblance.

The first crisis was Independence. Several state legislatures and a figurehead congress opposed the power of Parliament and King. They use very dirty tactics (start a war), invent a whole new Union, give it a bunch of new powers, and the crisis ends.

The state of play after was simple enough. 13 independent nations were busily writing up constitutions in the latest enlightenment vein. There wasn’t enough central power to pay the troops or stabilise the currency. This was a serious problem. Rule one of statecraft: pay the damn troops.

And so second crisis: The constitution. I’ve talked about it before. Constitutions are in the air, so we get the Federalists. They use very dirty tactics, invent a whole bunch of new federal powers, and the crisis ends.

The state of play after: The states are in practice more powerful than the federal government. But it seems irrational and not very enlightenment to have state-level exceptions to universal national laws. And it’s the federal judges appointed by the federal executive and legislature who decide what power the federal government has. So we get decade after decade of decisions that say federal rules override state rules.

And so third crisis: America decides that slavery is the battleground they will fight the question of states rights on. We get Lincoln (America’s second greatest tyrant). He uses very dirty tactics, invents a whole bunch of new presidential powers, and the war ends.

The state of play after: the states are under no illusion that the federal government can overrule them and they cannot escape that power. But so long as they do nothing abhorrent they can still keep day to day control of their internal economy, criminal law etc. This state-level control of economic policy meant when America had a long run of awful bank crashes and recessions, the disunited states could not deal with them.

And so forth crisis: The Great Depression. The states cannot deal with the economy. Something must be done. And FDR (the greatest tyrant in American history) decides it must be done by the federal government. He uses very dirty tactics, invents a whole bunch of new presidential and congressional powers, and the Depression ends.

The state of play after: The US congress is clearly in control of the nation. They realise they can’t micromanage everything so they set up agencies like the EPA and OSHA to micromanage for them. After a while the state needs so much constant management that congressional oversight (let alone control) becomes impractical.

And so fifth crisis?

If I had to guess I’d say some crisis where these agencies either lose their legitimacy, or congress tries to stop them and loses its legitimacy. I guess historians half a century from now will talk about what powers the US gave to agencies, what controls they were under, what control was taken away from the states and from congress in exchange.

It is not predictable at the moment. But we can guess some things from the patterns above.

Dirty tricks: The new system will be nakedly partisan, imposed by force of will over the objections of law and tradition

Centralisation: The body that makes practical decisions about who has what authority will gain new and scary powers.

Short term gains: The new system will solve the crisis and Make America Work Again. Expect this to be taken as proof by all that the new system is better.

Will this new system, when it comes, be better? I don’t know. I don’t know if any of the previous systems have been better. I know they all made dramatic and scary changes for very very good reasons. And I know the results after were mixed, with unintended consequences.

What should we do about it?

Well, one thing that would really help is if we talked about it in advance of making the decision. If we avoid railroading people into agreeing with the new consensus when it arrives. If we chose the new consensus because it seemed like a good idea rather than like an expedient one.

How would you design the modern US regulatory framework if could start over? Who would be in charge of what? Who would be elected and who appointed? Who would have oversight? How would you make sure the overseers had the knowledge they needed? How could voters overturn bad policy? How would a ballast towards long-term thinking be provided?

Candidates are reminded to write only on one side of the page. There is a time limit, but I don’t know what it is.

How to vote if you don’t know about politics

Lots of people “don’t know about politics”. Do you not have the time to learn about all the parties and policies? Do you find learning about all the ever-shifting arguments difficult? Do you just not care about politics? If any of these sound like you I have 5 quick and easy steps for you.

  1. When is the election?
  2. Register
  3. Change or continuity?
  4. Who to vote for
  5. Cast the ballot

You don’t need work out if inflation is a danger to the economy. You don’t need to work out what wars your nation should fight. You don’t need to deal with issues of migration and identity in a globalised world. Your voice can be heard all the same.

1: When is the election?

Google “next elections in <name of country, state, region, province etc where you live>”.  You’re looking for two things: The date of the election and what kind it is. Once you’ve done that find out when the last election was of this kind, and what the result was.

2: Register

Most countries need you to register in advance in order to vote. Luckily most of them have a website. Google “register to vote in <name of country, state, region, province etc where you live>”, go to the official website and follow the steps. You should only have to do this once which is good.

3: Change or continuity?

There’s one big question to ask: Are you better off now than you were last election?

Remember what kind of election it is: it might be just regional or local, it might be for the whole country. It might be an election for the city dog-catcher. Whatever the topic is, think: are things better now than they were last election. Am I better off, have the things that were wrong then been fixed, or have new things gone wrong?

4: Work out who to vote for

If things are better now then you want to vote for the incumbent. Find the name of the person or party who won last time and cast your vote for that person or party next time.

If things are worse now then you want to vote for the opposition. Find the name of the person or party who came closest to winning last time but who lost and vote for that person or party last time.

5: Cast the ballot

By election day you should be told where to vote. When you’re there ask one of the people on duty to explain how to vote if you’re not sure. (If you’re in the US this will be needlessly complicated and may change from election to election, so make sure you ask). Don’t tell them *who* you voted for.

Done! Well done for improving the government of your country. If others vote like you then bad governments will be voted out, and good ones will stay in.

The Federalist Papers

AN this was originally a speech given to a British sixth form group, slightly edited to make it less extemporaneous. I’ve added a second post which I hope will be more controversial.

The Federalist Papers are a user manual to the US constitution, they explain clearly what the true intent of the founding fathers was. They are an unimpeachable guide to the kinds of policies that should govern any nation. And they are a valuable guide to how we should interpret American law today. If we want to improve America and fix the political problems there we should read the Federalist Papers before anything else.

That entire paragraph was a lie, (even the name, they’re technically just “The Federalist”). In reality they are a series of 85 letters written under the pseudonym “Publius” and published in various New York newspapers from 1787-8. Its three authors were John Jay (President of the Continental Congress), James Madison (the 4th President), and Alexander Hamilton (1st Secretary of the Treasury, who is inexplicably the subject of a rap musical that just recently opened). They are utterly partisan, and without reading their opponents they are worse than useless, because they pretend to far more certainty than they ought.

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It’s a question of hats

You can get an impression of how the British constitution works by considering this image and asking who is in it. See, it’s all a question of hats.

775px-queen_elizabeth_ii_march_2015

Not just the physical hat, though that is fabulous. But rather the different legally distinct persons who are in that image.

First one is obvious. This is a photo of Elizabeth Alexandra Mary of the House of Windsor, called “Lilibet” by her friends. She has personal property that she can dispose of however she wants, she has opinions all of her own, that kind of thing.

Now you’re going to say “ok, so she’s the Queen too, and that distinction is important right?” Oh my sweet summer child, nothing so simple. There are three Queens.

The first Queen is the Queen in Council, who is a legal person who governs the UK. The decisions that the Queen in Council makes involve telling policemen what to do, spending money on things, declaring war on people etc. The Queen in Council has ultimate authority to do anything she wants. Of course the Queen in Council by definition can’t make any decision that the Privy Council doesn’t approve of, and the Privy Council won’t approve of anything that the Government doesn’t approve of, and the Government won’t approve of anything that the Cabinet doesn’t approve of, so in practice the Queen-in-Council thinks whatever the Prime Minister thinks.

The second Queen is the Queen in Parliament, who is a different legal person who make legislation in the UK. The Queen in Parliament enacts things called Acts that form most of our laws. Importantly the Queen in Parliament decides on taxes, not the Queen in Council (who spends them). So it sometimes happens that the Queen in Parliament disagrees with the Queen in Council. This is perfectly normal so long as you remember what hat you’re wearing. Of course by definition the Queen in Parliament can’t think something unless either both the Lords and Commons agree to it, or the Parliament Act applies.

The third Queen is the Queen on the Bench, who is another legal person who judges disputes. This person often disagrees with the decisions of the Queen in Council and declares them illegal. It also interprets parts of Acts made by the Queen in Parliament to make them more consistent with common law, the EU, and the Human Rights Act. The Queen took a solemn oath at her coronation (which is not when she became the Queen) to uphold the laws and customs of the land. The Queen on the Bench decides what the ancient customs are, and how to strike the balance between then and the decisions of the other two Queens. Of course it’s different in scotland.

After these three Queens we have to add in another person. The Crown. The Crown isn’t the crown, that’s just a physical manifestation of it. The Crown is the legal person which holds all the things that pass from one monarch to the next. The Crown for instance owns lots of land. Now it may be that the Queen (all three of her) decides she wants to sell off all of this land. But she might not be allowed to do so. The Crown has legitimate interests of its own, and the Queen isn’t allowed to go against those interests. So the Queen can’t give away some land to her mates, that would go against the interests of her heirs, that is, of the Crown.

The Queen in Council has practical day-to-day power, but the Queen in Parliament remains in control, because the Queen in Parliament can and does demand the resignation of the ministers who tell the Queen in Council what to think. With the exception of Cromwell, no serious rebel in English history has ever been openly opposed to the Crown. The rebels simply note that the monarch has been misled by evil councilors who are tricking the monarch into doing things that are not in the best interests of the Crown.

In this photo we also see the Supreme Governor of the Church of England and Defender of the Faith. This person has absolute and unlimited power over the Church of England. However the Queen took a solemn vow at her coronation to uphold the ancient rights of the Church, and to govern them according to their own decisions and the law. These two things contradict. The Synod (legislature of the Church) can pass Canons and send them directly to the Queen to approve. But the Queen in the Bench may well decide that they are against the law. So more commonly the Synod writes measures that are approved by the Queen in Parliament, these change the law, and so then Cannons can be passed more safely.

So, one private person, three Queens, one Crown, and one Supreme Governor. We’re done right? Nope. Not by a long shot. Remember she’s also Queen of a dozen other places. And in each one she is three Queens and one Crown. But surely it’s the same three Queen and one Crown right? Nope. The Crown of Australia happens to be held by the same person as the Crown of Jamaca always, but they are legally distinct and can disagree with eachother. The Queen-in-Parliament of Canada has very different views to the Queen-in-Parliament of Tuvalu. It would be perfectly possible, if a bit awkward, for the Queen-in-Council of Australia to declare war on the Queen-in-Council of Barbados.

Remember when she took her Coronation Oath the Queen promised to rule all her different kingdoms according to their respective laws and customs. There are things that the Queen can do in Canada which she cannot do in Scotland, and vice versa, because they have different ancient customs and laws. And this means some things do and don’t apply in some places. The Queen isn’t the Supreme Governor of the Church of Scotland, though she is a member of it and attends their services. The fact that the Supreme Governor of the Church of England thinks such services no part of the one true faith shouldn’t be surprising.

Of course, empire made the whole thing crazy. The Queen of New Zeeland isn’t just the Queen of New Zeeland, she’s also in the same legal person the monarch of the Cook Islands and of Niue, in spite of there being different parliaments, councils of ministers, and judiciaries in all three places. The Queen has a dozen other small titles, Lord of Mann, and Duke of Normandy as the obvious examples that sometimes reflect distinct legal persons and sometimes not. At present the picture also includes the Head of the Commonwealth, it is assumed the next King will hold that title too, but he won’t hold is automatically of his own right, rather he will be granted it by the commonwealth countries collectively. Elizabeth is neither Queen nor Empress of India, but is Head of the Commonwealth there.

Before anyone complains, I know, I’ve vastly oversimplified here, and the conventions around these different persons and how they interact with eachother and with their respective advisors.