1265 And All That

Of the many questions the pundits and prognosticators will ask during 2011, one will dominate; is the AV referendum fundamental to the coalition? Of course, they'll add in a lot of extra words like "yes vote" and "survival of", which is a shame, because if they restricted themselves to the underlying question they'd find that the answer is yes, but for none of the reasons they've thought of.

For while a referendum by definition asks a question, both the referendum and the coalition itself demand that we consider the same problem; how do we govern our country? And that's a terrifying question for the British, because do you realise when we last asked it?

1265

It's quite scary as a law student to be taught that at its most basic level, Anglo-Welsh law still relies on the idea that the Monarch is empowered to dispense justice to their subjects and that a millennium's worth of legal reform has largely been about making it easier to deliver that justice to the people.

The standard British answer to most constitutional matters is "tradition". At one level, there is the simple irony that plenty of the elements we consider as traditions nothing of the sort (first election in which every MP was elected by FPTP for a single-member geographical constituency? 1950!)

More fundamentally, however, tradition tends to focus on individual elements of the system, which is where 1265 comes in. De Montfort's Parliament was the point at which we had all of the institutions of English government in place; the Monarch, the Lords, the Commons. Every reform since then has been about the details of those institutions; the relationship between Monarch and Parliament in the 17th Century, the nature of governments and the office of Prime Minister in the 18th Century; the franchise in the 19th Century; and the relationship between the Lords and Commons in the 20th Century.

If you were feeling charitable you might describe that as evolution, but it's really just a vaguely related series of circumstantial moments. Expediency, either through constitutional deadlock as in 1911 (and, indeed, 1642) or popular protest as in 1832 has always been the leading driver. The result is a systemic whole that we've never actually thought about, justified by spurious traditionalism and a vague sense that what we have has always worked. But as Blackadder would have identified, there's just one tiny flaw with that analysis...

Indeed, far from having always worked, our system has never worked and rarely has that been truer than now. The faults are legion; the tyranny of execuslation, the insane overcentralisation of power and money, the disservice to opinion and debate that is our electoral system, etcetera, etcetera...

And while much of the response to the coalition is about the policy (and at least some of that isn't even tainted by the foul stench of hypocrisy) a significant measure of the response derives from the fact that the system we have struggles to give even the appearance of functioning unless certain conditions are met. Now that we can't squint and tilt our heads to the left and think that what we have looks a bit like an effective system of government, we have to face up to what we have; many people clearly don't like the look of that and would rather wish the problem away.

My challenge to the Yes campaign, then, is to ensure that the naysayers can't do the ruby slipper act. The grassroots-focused approach they are taking so far looks an excellent way of doing that, but we all have a duty to ensure that complacency about the status quo is eradicated, not left to fester and undermine the reforms that are so crucial to our future.

(I Hate You) For Ideological Reasons

Of all the responses to the Comprehensive Spending Review, perhaps the most intriguing has been Labour's use of the phrase, "ideological reasons". The way they spit it out, the venom they attach to it evokes the broadest Valleys accent (though whether the invocation is of Kinnock, Bevan or just my granny from Trebanog's cries of "uch a fi" at my four-year-old self's attitude to chocolate is unclear...)

Sonorous qualities notwithstanding, it's an unusual phrase to use, as after all it is essentially the point; you have an election, it's contested between various parties each of which expounds a particular ideology, and whichever party best convinces people that their ideology is best is then elected to carry it out. Surely the Labour Party can't mean that political parties should ditch their ideologies altogether? (Oh, hang on, yes they can...)

But it isn't what they mean, if only because they're nowhere near ready to admit to themselves that they ditched all their principles long ago. Instead, it comes down to an idea I've blogged about before; Labour's absolute conviction that everything they do must be good for the vulnerable because they are the ones doing it, they are are the ones who have their needs as heart. As this excellent dissection of the Thatcher legacy points out, the corollary of this is that anything done by any other party must be both bad and done out of malice. This being the case, the rest of the rhetoric shouldn't be much of a surprise; the leap from "ideological reasons" as code for "Tories hate poor people" to "ethnic cleansing" (a term on which Welsh Labour has prior form) is rather less mentally taxing than it ought to be. (As for Boris' invocation of that term, however, I have no idea...)

We Lib Dems need to be vigilant, however, because Labour's future attack strategy towards us is rooted in the same "ideological reasons." All those years of Yellow Tories basically boil down to the same idea; Labour are the only ones who care, therefore we can't care, ergo we must be evil too. The special vitriol reserved for Lib Dems derives from the Labour perception that we must be lying when we talk about helping the less well-off; the Labour worldview allows no other conclusion.

Their frustration up to now has been an inability to prove our evil (to their minds because of the deceit, in reality because we aren't) but their hope must be that the coalition will be their proof. The accuracy of that, either as a summary of the Lib Dems past or their future, is more than a little questionable. But we should keep watch, because it's a very Chinese crisis; as Labour strive to affirm their psychological hangups, they leave themselves open to the exploitation of them, and without them, there's not very much left.

Hi, I'm John Doe And I'm A Politician

Regular readers of this occasional missive (hello Sid, hello Doris) will be aware of my tendency to draw somewhat left field conclusions from events. So you'll unsurprised to discover that my main thought on the comprehensive spending review, and particularly on tuition fees, is that we really didn't deal with MPs expenses very well...

One of the stranger suggestions amongst the litany of Lib Dem psychoanalyses that have emerged of late is the idea that our policies existed because we never expected to be in government (Andrew Rawnsley's crack at this theme being one of the best). On the one hand, it's fairly easy to point out that unless you're the kind of psephological illiterate who believes that the outcomes "Labour Win" and "Conservative Win" are appointed by God as the only possible results of an election (or as we call them, journalists) it should have been blindingly obvious that this election would result in a hung parliament (even if my guess would have had rather more Lib Dems and correspondingly fewer Labour...)

More importantly, however, while clearly there were many in the party who were bathing in the warm glow of their ideological purity, there were plenty of people wondering about how any coalition would work and how it would fit with our policy process. Unsurprisingly, as an amateur constitutional wonk who wrote the current Liberal Youth policy process, I was one of these and my general conclusion on the checks and balances was that there weren't any.

Okay, maybe that's not entirely fair. There is the not-quite-a-triple-lock (which, as we found in Wales three years ago, is true right up to the point when conference decides to exercise its power to overrule FEC) but that essentially only endorses or fails to endorse the coalition document. Once you're in though, your only recourse is to try to mount the reverse vote, but that would be quite some feat.

Of course, I suppose if we were particularly unhappy we could deselect any misbehaving ministers, though as that's a power for local parties it would rather depend on them and heaven knows there are some local parties I wouldn't trust to pick parish councillors (although let's be clear, the selection of diabolically awful candidates is a cross-party predilection...)

But then, this is the greater philosophical point. For all that our media narrative and indeed our voting patterns tend to fixate on the identity of the next government, the only thing we get to vote on is the identity of our representative. What's more, the same thing is true for every political party; we get to select our candidate, not everyone else's.

The trouble is, this isn't the question we generally ask of our candidates, at either level. What we actually ask is "What would you do if you were Prime Minister?" Partly this is because it's the only way we can formulate the question; we can't ask them what they would do in every possible combination of x Labour, y Conservative, z Lib Dem and (t-x-y-z) others. Mainly, however, it's because the years of oligarchy have lulled us into the idea that manifestos are non-fiction rather than science fiction.

Labour's manifesto in June 2001 contained very little, in retrospect, about the issue that would define their term in office; its authors were not expecting to see airliners flying into skyscrapers just three months later. Neither did the Tory manifesto of 1992 discuss what they would do if, five months later, David Cameron would have to scurry out of the Treasury behind the chancellor's back as he announced that the sky had fallen down on sterling's head. Think Margaret Thatcher's manifesto of 1979 contained any specific pledges about responses to an invasion of the Falkland Islands? Think again.

All the complaints about the coalition breaking manifesto promises ignore that it was ever thus, and not merely because politicians are politicians. In a quantum universe, the only accurate prediction you can make is that the value of your investments may go down as well as up...

What matters, therefore, is who is in the room. "Decisions are made by those who show up, so are we failing you or are you failing us?" Quoth Saint Jed of Bartlet, and he wasn't wrong. This coalition will be tested by something unexpected, not least because, as Alan Bennett so wonderfully put it, history is just one effing thing after another. Am I happy with every decision they've made? Of course not. But do I have confidence in the people we've put in the room for when things come to pass? I absolutely do.

What does all this have to do with MPs expenses? Well of all the many responses there were to that episode, the one that was missing was a defence of the idea of representative democracy itself. Instead, the cumulative effect was to reinforce the idea that politicians are by definition incompetent. After that, it's quite difficult to argue that the identities of the people in the room matter when you've already established that they're all the same anyway.

The difficulty going forward, then, is that the same applies to the AV referendum; how do you convince people that politicians can be better if you improve the method for holding them to account if you've already convinced them that there's no such thing as a better politician? Either way, we shouldn't be under any illusions that the referendum is just about everyone's first preference between FPTP and AV; it goes to the heart of how our political systems work. Indeed, our biggest advantage will be that the present system doesn't...

Thus Spake, Well, Not Zarathustra Exactly

Amidst all the excitement (including, but not limited to, an interesting little spike in my readership, of which more anon) it occurs to me that I haven't provided my usual service of blogging my speeches from Welsh Lib Dem Conference, which was very successfully held in Brecon the weekend before last. So without further ado, my weekend's contribution, on a motion calling for a distinctive Welsh voice in party policy...

Conference, when I read this motion I was struck by the importance of the message it sends. Ironically, I think it struck me most because I'm English.

More specifically, I'm from Gloucestershire, barely 20 miles from the border but more than 120 miles from Westminster and the City. And so I don't know whether to laugh or cry when people try to denounce us as "one of the London parties". The trouble with London-centric thinking isn't that it thinks that Offa's Dyke is an active military installation defending it from the barbarian hordes; it's that it thinks that the M25 is an active military installation defending it from the barbarian hordes...

Now don't get me wrong, we shouldn't discard ideas purely because they come from England. There's no sense in creating clear red water the way Labour have, by kneeling on the riverbank and slitting your throat. Neither is there any sense in creating clear yellow water by standing at the riverbank and... well I think you can see where this metaphor is going...

The best expression of our commitment to policy making in Wales is that we are here, right now. Labour and Conservative can't even make policy democratically in England; we do it in every part of the UK and we should be proud of that. I welcome this motion and I am sure we will achieve its objective, but we will do so because we are Liberal Democrats and we would be that way whether we were in Brecon, Brechin or Bracknell...

Being For The Benefit Of Mr. Straw

Impossible though it is to cover constitutional matters in words of one syllable, for the benefit of Jack's rapidly shrinking brain, a summary;

Fixed-term parliaments are good. They mean that all parties are on an equal footing and that governments and parliamentarians are held accountable regularly, not when they want to be.

If you're going to have fixed-term parliaments, they have to be five years long. The European Parliament works on a five-year cycle so to ensure that elections are not competing with each other (and if you want an example of why that's bad, look at the London Borough elections this year which had never previously coincided with Parliamentary elections...)

If you can be certain that each election will fall in May, it makes perfect sense to align the parliamentary sessions, and hence the Queen's Speech, with that timetable. Is having a long session to implement the realignment unusual? Yes, but no more so than having a full speech for a short session that then never gets implemented.

The Liberal Democrats in the Coalition, in particular, will not stand for the continued constitutional illiteracy that is their only response to any reform proposal so far. Labour gave up its moral authority on constitutional matters when it decided that 3,000 new criminal offences, the abolition of jury trials and imprisonment without trial weren't serious constitutional threats...

Please Replace The Handset And Try Again

There can be little doubt that history will judge the Thatcher privatisations badly. On the one hand, there is the unavoidable conclusion that her dream of a shareholding society was an utter failure, twinned with the exquisite irony that someone whose foreign policy was so coloured by a war about stopping the Germans conquering Britain should have worked so hard to sell it to them instead.

Equally, while history will reflect that most of the services involved could and probably should have been privatised (it's really only water and the railways in which competition was fundamentally impossible) even those that could were let down by the appalling way they were sold off. Pretty much every privatised industry carried a fundamental flaw in its structure that has subsequently seen the government ride in to rescue, well, the companies profits as much as anything.

But what's struck me most as I think about it is that in hindsight, the most damaging privatisation was the one that should have been the easiest to justify and to enact. Indeed, the financial impact of the way the sale of British Telecom was botched, while impossible to compute, may well be more staggering than anyone could imagine.

It was my new mobile phone that got me thinking about this. For while we must accept that no-one in the early 80's could have foreseen the ubiquity of mobile phones, wi-fi and indeed the combination of the two, it's easy enough to see how the way the whole industry has turned out affects our use of these devices. In Wales particularly, where rural broadband and broadband for business are at the forefront of the debate on the economy, it's worth reflecting that we did not end up here by accident.

For starters, we should note that if anyone was responsible for the competitive telephony market of today, it certainly wasn't BT. While they dragged their feet on even the simplest competitive use of their wires, it was left to the cable companies and then to the mobile operators to offer better and cheaper services. Admittedly, once the behemoth had stirred it caught up with Virgin Media and Sky in the all-in-one package stakes, but all that amounts to is the replacement of one exercise of monolithic power with another.

The legacy of that process, however, is infrastructural chaos. For as BT catch up with the idea of domestic fibre optic cabling, the result will be two parallel cable systems. On top of that, you have five different mobile phone networks with their own independent mast systems. The Tower of Babel would be too easy a metaphor...

What really strikes me, however, as a particular geek in this direction, is how reminiscent all this is of the railways. In the privatised era, the only successful competition occurred in places where there was duplication of lines. Reaching back further, one of the few redeeming features of Beeching was the way he removed many of those duplicated lines which were themselves relics of earlier slapdash competition.

So how about the truly heretical thought; what if the telephone system had been privatised the way the railways were? A phone infrastructure company coming into existence in the mid-80's would have faced pretty much none of the conditions that made Railtrack's position untenable from day one, namely a decaying infrastructure that was safety-critical, impervious to meaningful technical improvement and only able to be repaired in situ rather than replaced.

By contrast, the putative TelWires would be faced with an immediate opportunity to entirely replace its network with a new and technologically superior system. Service provision over the new fibre optic network would have offered a starting point for competition, quickly bringing the cable service into direct price competition with the existing wires. At that stage, the wires themselves could have been phased out, giving TelWires an asset portfolio to sell to fund further investments; you'd have to imagine the mobile phone masts would be popular targets, particularly once Virgin Mobile established their network-sharing model.

The historical effects of all that would have been innumerable. Imagine how different the development of dotcoms would have been if everyone in the UK had been on cable by the end of the century instead of dial-up. Imagine how many fewer rows about siting of mobile phone masts there could have been if the provision was integrated...

As for today, public wi-fi could be a nationwide rather than an urban project, as TelWires would take responsibility for providing the wireless transmitters for it as well. Admittedly this would have allowed the iPad to achieve hive mind consciousness by now...

The continuing tragedy, however, is that all this is true in nearly equal measure of the rest of the privatisations too. In particular, capital investment is generally proving impossible, whether thanks to inadequate incentives (electricity), lack of competition (water) or easy fleecing of captive customers and cowering governments (rail).

It is of course far too late to put right the damage that's already been done. But we do need to recognise that trying to change things isn't some form of thoughtcrime against the market; you can't be interfering with the free market if the market isn't free and you (or at any rate HMG corporately) are responsible for the structure of it anyway. Either way, all these infrastructural elements are going to be crucial to the future of our environment and our economy and we have a duty to ensure that we get them right.

Aren't We Forgetting A Few People?

As the political world starts its rather leisurely return to school, thoughts in the devolved parts of the country return once again to the problems of multiple referendums and elections on the same day in May 2011. And as Betsan Powys raises the very good question as to which of the various polls will be counted first, I'd like to pose one of my own.

Why do we keep forgetting Northern Ireland?

It may have escaped our notice, but their devolved government has (perhaps most miraculously of all) survived its four years and will be due elections in May 2011 itself. What's more, thanks to the failure of their most recent attempt at local government reforms, there will also be local government elections the same day. So that's two STV elections with something approaching a million ballots to be dealt with as it is, plus the AV referendum on top...

Such forgetfulness is particularly unusual given how crucial Northern Ireland's votes could be in the overall shakeup. After all, this is a country whose political system wouldn't function without STV; there has to be a decent chance of a wide margin in favour of AV and if there is, it could be 2011's Carmarthenshire...

Notes From, Well, Quite A Big Island Actually...

So Richard Scudamore, the Chief Executive of the Premier League (not to be confused with Sir Dave Richards, the Chairman of the Premier League who Fulham are asking the High Court to fire for improper interference in transfers) says that the World Cup result is "partly" the Premier League's fault.

Which is fine (being at least the truth, if not necessarily the whole truth) except that he reinforced his argument by recourse to one of the great canards beloved of British sports pundits after another valiant or not-so-valiant failure; "We're only a small island, we have to be realistic."

Back in 2003, I remember the same pundits revelling in the fact that Yorkshire (a county not exactly united in its love of the game) had more registered rugby union players than the whole of Australia (a country almost five times the size). Indeed, this was meant to be one of the reasons why we would (and, of course, did) kick Aussie butt in the Rugby World Cup final (and yes, I am going to gratuitously link to the video...)

But football never considers those statistics, it just says "We're only a small country" and moves along without so much as a by your leave. Which if funny, because actually we're something like the 22nd most populous nation on Earth and what's more, six of the larger nations have never qualified for a World Cup and four of them have only ever qualified once.

When you go beyond the basic populations and look at the actual footballing statistics, the hypothesis becomes even more ludicrous. According to FIFA's most recent global study, we rank 7th for registered adult players and 6th for registered youth players, as well as having the 2nd highest number of professionals and the highest number of clubs.

If we really are such a small nation, how did Spain with 16m fewer people and 760k fewer players manage to win this time? Italy and France are about the same size as us, you tell me, how have they been doing in World Cups of late?

The problems in English (and, indeed, British) football are far deeper than being the fault of the Premier League institutionally; there is a fundamental cultural gap that I have no idea how to close. But suggesting that we shouldn't expect to be a substantial player in the global game is utterly disingenuous and the sooner we stop trying to excuse failure and start trying to ingrain success, the better.

Waste (17 Different Bits Of)

Well, the stack of spam comments from China to be moderated suggests that its about time I got back in the saddle, blogging wise. My normal intermittency notwithstanding, I hope you'll understand that sooner or later, a dissertation and seven exams in two weeks were going to get to me and necessitate a rest from anything other than my council duties.

One thing I have been reflecting on in my time away is column inches and how they affect council debates. Cardiff Council is pretty good as a debating chamber, with plenty of speakers on all sides who'll give the political theatre some gusto and occasionally cover the issues reasonably well too. What's more, with webcasting you can now watch them in their entirety (and we'll ignore the terrible vision I just had of the highlights programme, complete with Alan Hansen...)

Now of course no local paper could cover such debates in their entirety, but space pressures can do them a disservice. Last year, for example, we had a debate on a foundation school application at Whitchurch High School that did an outstanding job of covering the philosophical underpinnings of new state school governance arrangements; the local press coverage, however, amounted to one column inch about me using the word screw (and even then only in attribution, not against anyone...)

Back in June, meanwhile, we had the latest in our regular series of Conservative motions on composting, which led to a brief article and an exchange of letters wherein I accused the Tories of wilful ignorance and they accused me of a lack of logic. Much as we could have kept going back and forth in the letters page, however, I suspect it will accomplish more to put the whole of the argument on record. In doing so, however, I'm mindful that at the end of the debate, Conservative group leader, Cllr David Walker, helpfully read out the dictionary definition of hubris, an act some might argue is itself the dictionary definition of hubris (though pointing that out may also be the dictionary definition of hubris, and so on until the heat death of the universe...)

Either way, the basic problem for the Conservatives was a fundamental failing of the English language, namely its lack of a plural indefinite article. Proposing the motion, Cllr Rod McKerlich said that he would lay out “the” facts. Instead, he laid out a range of things that may have been facts, some, none or fewer of which may have been in any way relevant.

The act that Cllr Walker thinks was hubris was the introduction, in September 2008, of food waste collections for every household that made Cardiff the first UK city to accomplish a city-wide roll-out. As with most waste policy matters for councils up and down the country, there were three key drivers for food waste collections. On the practical front, Cardiff's landfill site at Lamby Way is almost full and while we are (as part of the Prosiect Gwyrdd alliance of local authorities) pursuing alternatives, anything that can extend the life of the existing facilities is enormously valuable. Economically, between UK landfill tax escalators and EU recycling fines there is a huge financial impetus to perform. And of course morally there is the minor matter of it all being fundamentally the right thing to do, particularly with food waste and its potent mix of methane and pathogens.

Of course, once you've decided to collect something, you need to work out how to collect it and what to do with it. The Conservatives first objection to our scheme is that, by collecting food waste together with garden waste, composting of the garden waste now costs money when previously it was essentially done for nothing. But the costs of what you do with it and the costs of how you collect it aren't independent in that way; if you collect the food waste separately, that means a whole additional set of collections, with more trucks and more staff, plus more complications for the householder.

The other objection, the one that the Conservatives seem to think is a matter of public scandal, is that at present the food waste, once collected, is sent for composting at a facility in Derby. Environmentally they seem to think that that's a no-brainer, but that's why I accused them of not using their brains. If you put the food waste in landfill, it will release copious amounts of methane, which is at least twenty times more potent as a greenhouse gas than carbon dioxide; any carbon dioxide emitted by transporting it to Derby therefore still represents a tremendous saving compared to the methane that would otherwise have been emitted. As for the cost, again it's quite simple; the alternative is putting the food waste into landfill and then getting fined for doing so.

Cllr Page in his letter seems to think his party were only asking why we don't have the facilities to do it ourselves. In fact, they were going one step beyond that, saying that because we didn't have the facilities, we shouldn't have started collecting food waste in the first place. Clearly that would have been financially and environmentally suicidal, and in any case, had they listened to a word that was said to them in the debate, they would have had their answer.

Capital funding for local authorities doesn't grow on trees, it is begrudgingly doled out by your higher authority of choice (in our case, the Welsh Assembly Government) and only if they absolutely agree with what you want to do with it. So if they decide to say, “You know those in-vessel composters we were telling you to build? Yeah, actually, don't do that, build anaerobic digesters instead...” the local authority in question has to sit there and take it.

That may not be convenient for an opposition party that wants everything to be the result of a gargantuan cock-up on the council's part, but it is a depressingly regular occurrence with WAG. So for the Tories, there is the age-old politician's choice; do you want to listen to the answer to your question, or do you want to claim that any answer that isn't the one you want is a lie? Sadly, on waste our Conservatives appear determined to take the latter option.

Becoming Laws Unto Themselves

And then the inevitable happened. When the coalition was formed, as a blogosphere we all wondered how we would react when the first scandal came; lo and behold, when it did it came with a big dollop of core liberal issues attached.

Then again, I guess the response to Friday night and Saturday morning, up to and including David's resignation, was just as inevitable given the collective political response to expenses from day one. Looking back, the occasional Margaret Moran joke notwithstanding, I never blogged on the topic. Normally that might be explained by my general attitude to any sort of topicality, but in this case it stemmed from my being just utterly sick of the immaturity and hypocrisy of it all.

What we got was the very worst kind of moral equivalence. Neither the Torygraph nor any of the politicians really tried to understand what had gone on; instead, the Torygraph intimated that all the politicians were evil and the politicians acquiesced on the grounds that at least their politicians were just as evil as the other side's. Making it all about the individuals, however, doesn't do anything to address either what did happen or what should happen.

In reality, the expenses scandals were many and several. The duck houses were amusing, yes, but the sense of moral outrage at them was entirely misplaced. Fundamentally, even if the voters are the interview panel and the employers of MPs, they can't be their HR or payroll department, hence there must be a Fees Office. Clearly there was a failing there in scrutiny terms (which the FOI requests went to the heart of) but any such failing is by definition systemic and can only be solved by changing the system, which hopefully we have.

The thing that's missing from that scenario, from the point of view of a law student at any rate, is culpability. Plenty of bloggers and commenters have screamed about how David Laws is meant to have defrauded the public, but the question they must answer is simple; how? Claiming for money you never spent is fraud (see the various examples that are currently sub judice.) Flipping is fraud (as you are by definition lying to Her Majesty's Revenue and Customs, which tends to be a bad idea. And before you start, even the Torygraph admit that Danny Alexander did nothing illegal and nothing any member of the public could have done...)

But what is it exactly that David Laws did? Even if we ignore the fact that the rule in the Green Book is lorry-drivingly vague (and seriously, the phrase "treat each other as spouses" is the sort of thing that earns QCs serious hourly rates down on the Strand) we have to ask what that rule was there to prevent. If David had taken money for somewhere he hadn't lived (like, say, Baroness Uddin) there would be a clear fraud. If David's claimed rent had been excessive for the property, that would have been fraud. As it is, while it may generally be advisable not to be in the situation David was, it is difficult to see how it constitutes any sort of fraud.

At the same time, what it does show is how abysmally the Torygraph-led knee-jerk reaction has actually served the taxpayer's interest. Then again, the one thing the Torygraph was never smart enough to understand was what the taxpayer's interest was, or that it was two-fold; to get value for money, yes, but also to ensure the effectiveness of their MP. On the value side, it would appear that David's rent claim was positively modest. And as for effectiveness, if anyone imagines he would have been a more effective MP if forced to move out of the home he shared with his partner...

I think we can all understand and sympathise with why David chose to resign. But we should be clear as a party that he didn't have to. Instead, the last forty-eight hours taught us three things; that we have still done nothing like enough to ensure that everyone can live in our country without fear of discrimination, that we need to do far more to restore not only the integrity of representative democracy but the idea itself, and that despite managing to prevent a Tory majority we have not even started to reduce the power of unaccountable press barons whose interests are entirely hostile to those of the electorate.

Unite v Simpson And Woodley

As my exams draw to a close, I find myself pondering at least one court case. And I find myself wondering why, if you wanted a reason why the Labour coalition never happened, you would look any further than last week in the High Court.

Political parties have to have a fundamental idea around which they can coalesce. This would normally, of course, be an ideology, but it doesn't have to be; ideologies are generally better producers of narratives, but as UKIP have shown it is possible under the right circumstances to achieve a narrative without one.

Where this gets incredibly messy is that the idea has very little basis in fact. It is more than anything an article of faith; what matters is that you believe that your idea fits your party. The gravitational effects on the idea are of course considerable; the effects of time and personal loyalty pull peoples ideas around and together, while the occasional political earthquake highlights the differences in ideas in the same party and drives them apart.

The effect of time is most clearly seen in the Tories, who now have a real divide between their young, vaguely libertarian urbanites and an older, suburban, palaeoconservative core. To some extent this works because the younger group will grow into the older one, in others it functions because the ideology itself, while strong, continues to reassess itself.

It was that reinvention that sustained liberalism and thus the Lib Dems, albeit at the cost of its illegitimate offspring, libertarianism. Mind you, it has been the Lib Dems who have been most exposed to the earthquakes; social democracy in the 80's, the civil liberties agenda in the 00's...

But one of the standard pearls of political wisdom is that it's easier to oppose and it's here that the current political earthquake will damage us, if at all; for those for whom not-Tory, not-New Labour was their idea, the coalition may pose questions. But to define oneself as only against Blair is to misunderstand the other idea, or to fail to ask the pertinent question; what is the Labour Party's idea?

As a law student, I'd say that contractually the Labour Party is whatever the unions want it to be. Then again, in 1900 when those contracts were formed, there was a fairly clear ideological basis to the broader labour movement. But as socialism failed across the world, whether in its communist implementations abroad or its democratic ones at home, that ideological basis faded, eventually dying in the flames of Thatcherism and the rubble of the Berlin Wall.

If the idea was dead, however, what was to replace it? At the very least you needed something to blame that didn't involve the ideology having failed; admitting that is like saying Santa Claus isn't real, it shatters the illusion. In the end, five factors held the Labour Party together in its darkest hour. The cautionary tale of the SDP and the entrenchment of the two-party system in an old media world contributed, but I suppose the truth of the matter is that everything was overtaken by events.

After all, never has a government gone from victory to defeat quicker than John Major's. From the moment David Cameron walked out of the Treasury ten steps behind Norman Lamont, the Conservatives were doomed, though that didn't stop them piling on the self-inflicted wounds. Either way, you have to conclude that John Smith would have won in 1997.

But then, that's the great political what if, perhaps of all time. The questions are endless; how many seats would he have won? Would we now be calling it a Portillo moment? The variables are endless, and in any case it's difficult to see how radically different the policy would have been; Brown would still have been Chancellor, Blair would have been a key source of ideas in the Cabinet, Clause Four would have survived but it's not as if they'd have done anything about it...

Nevertheless, at that moment in the summer of 1994, the Labour Party was given a choice unlike that any party had perhaps ever faced; with victory assured, all it had to worry about was its idea and how best to express it. And what was the idea they chose?

Anything's better than the Tories.

It's instinctive to try and look for an ideological basis for New Labour, and God knows Blair tried with the Third Way. But by 1994, the unions (as the contractual partners in all this) were sufficiently shellshocked by the success of Thatcher's vitriol toward them and the failure of their reciprocal fury that it must have seemed almost trivial to say that anything was better than the Tories.

And so New Labour came to pass. For a foolhardy few it may have been a Munchausenian fantasy, a passionate belief in a non-existent ideology. But for most, whether jumped at with the fervour of a drowning man or begrudgingly accepted as necessary but irrelevant to one's own socialism, the only purpose it served was to beat the Tories.

It might not have mattered; just because the Labour Party was rallying around not-Tory didn't mean they had to express that idea in practice. But in a wonderfully synergistic confluence, the Labour Party got exactly what it deserved; the boy king Blair and his Somerset, Mandelson.

I've written before about how New Labour turned to quantum government, using spin (that quantumest of concepts) to justify not doing socialist things by showing how, by the political equivalent of the sum over histories, the things they did inched them towards a socialist ideal; that picture on the cover of the Labour manifesto was only inaccurate in that they put it at the start and not at the end.

In accepting that idea, however, New Labour, perhaps inadvertently, accepted its corollary; once you've established that anything's better than the Tories, it doesn't particularly matter how much better it is. That's not to say they needed to put so much effort into proving just how similar to the Tories they could be, of course...

Nevertheless, it is in that psychology that the impossibility of a Lib-Lab coalition was founded. Perhaps some part of the Labour hindbrain understood that the Lib Dems were the only practical non-Tory option in town, but it was overcome. On the one hand, by basing themselves on non-Toryness, Labour set themselves up as arbiters of what a non-Tory world looked like; presented with alternative ideas for such a world, they could not process them.

On the other hand, despite their belief in Blair's theory of a century of the left thwarted by the Lab/Lib divide, when the time came to forge that progressive alliance Labour had spent so long not needing to be progressive that they had entirely ceased to be so; never was a truer word spoken than Alex Wilcock's "58 MPs is not enough for a progressive alliance" speech at special conference...

We shouldn't forget in all of this the malign hand of Mandelson, but equally he isn't relevant to the longer term, it being so rare for British politics to throw up such a political sociopath. Nevertheless, as one of the few people in the Labour Party clever enough to understand all of this, it is instructive to note that he's done nothing to provide an alternative to the current Labour line, that everything is evidence of us not being progressive and that the coalition will crush us and restore Labour to its "rightful" place. But then, maybe he also understands the greater problem for Labour's immediate future.

All defeated governing parties struggle to understand why they've lost; most, indeed, believe they've done nothing wrong. When you have an ideology, eventually you can see how you deviated from it and how it deviated from what the country needed. But what do Labour have? How can you learn that you didn't do enough to not be the Tories when you've told yourself that anything is better than them?

The one thing that could save Labour is that contractual relationship with the unions, but as I said at the outset, all you need to know about where they've got to could be found at the Royal Courts of Justice last week. There they will have found the Lord Chief Justice and the Master of the Rolls deliberating over the provisions of s231 of the Trade Union and Labour Relations (Consolidation) Act 1992. Regardless of the rights and wrongs of both Unite's cause and BA's legal strategy against it, what this case proves is that thirteen years of bankrolling New Labour did sweet fanny adams for the trades unions. If they'd blown that money on crack and whores it would have been one thing, but far from pissing the money away, Unite and their colleagues golden showered it on the Labour Party and still got nothing for their troubles.

With that sort of record of incompetence, it seems unlikely that the unions will be staging an eleventh-hour rescue of their political brethren. Indeed, unless Unite's members take my titular advice and sue Derek Simpson and Tony Woodley for their clearly negligent use of their union's funds, the future for the Labour Party looks pretty bleak...

In The Shadow Of Two Gunmen

In a strange way, I rather feel like this is the end of my first season on The West Wing; 2005 was my first General Election as an activist and this blog started (much as The West Wing itself) eighteen months later. I suppose I feel that way because I've very much watched this election from afar; indeed, I spent polling day in a property law exam! And as the alternative is revising for a public law exam with questions on reform of the electoral system and the powers of the Prime Minister, I figure I should add my twopenn'orth on what happened and where we're go from here.

I should start, I guess, by saying that in Cardiff we did reasonably well. Jenny Willott was of course re-elected in Cardiff Central with Labour making no real progress against us. In Cardiff North, John Dixon's vote held up despite the two-party squeeze in what a shockingly close contest (a three-figure majority that should have been five!) Dominic Hannigan continued to make progress in Cardiff South and Penarth, adding 2.4% to the Lib Dem vote despite adverse boundary changes and a hand-picked Cameron candidate.

As for my neck of the woods, despite their optimism about what from my letterbox was a fairly ropey and derivative campaign, the Tories only achieved slightly more than the national swing. And again, despite the pressure of the squeeze and similarly adverse boundary changes, Rachael Hitchinson matched our 2005 vote share (a 0.5% rise on the notional figures) and secured a thousand more votes than the Lib Dems had ever polled in Cardiff West.

Still, there's no denying the local and national disappointment and I won't rehash the numbers, they've been on our screens in Technicolor for days. What happened? Clearly the Labour terror campaign in the last week had an effect, both on the policy front (I've certainly heard anecdotally that Labour pounded the marginals on immigration) and on the "Vote Clegg, Get Cameron" front. I jokingly posted on Facebook that Peter Hain's idea of tactical voting was people voting Labour in Lab-Lib marginals and that looks like what happened; I'm stunned that there's been no media mention of the fact that, despite the comparable 2006 elections not having General Election turnout, Labour gained over 400 council seats...

I also wonder what effect our sudden acquisition of an air war had on our normal strength on the ground. Again, the anecdotal evidence is of high levels on candidatitis which won't have helped, but equally I wonder if Cleggmania changed people's attitudes to the flood of leaflets from "I'm surprised by how much the Lib Dems have done for such a small party" to "Oh, the Lib Dems, they're a big party, no shock there". As a local party chair for a non-target seat, I was certainly surprised by the number of "I'm surprised I haven't seen anything from the Lib Dems" inquiries I was fielding.

But as Paddy said, the people have spoken, but we do not yet know what they have said. Mind you, given the number of factors they had to consider under the disgrace of an electoral system we continue to use, it wasn't so much speaking they had to do, more sending smoke signals in a cyclone. The pundits, meanwhile, haven't shut up, which is a shame because most of what they've spewed has been, to quote that other great sage Stephen Fry, arse-gravy of the highest order.

For starters, the 36.1% of voters who voted for a Conservative candidate did not by any means endorse the whole Conservative Party and everything it stands for. Strictly speaking, they only decided that the Conservative Party candidate in their constituency was preferable to all the other candidates standing there. Add in the fact that the Tory manifesto does not reflect the thoughts of the whole Conservative Party (as the number of them coming out of the woodwork to say that the reason they didn't win an overall majority was that the manifesto wasn't fascist enough tends to indicate) and you have a very muddled picture on the policy front. What's more, as this applies to all the parties equally, any statement beyond "these are the people who were elected and they should talk" appears highly speculative at best.

On the more general electoral reform question, the punditry has increasingly shown the credibility gap for a status quo for which there is simply no intellectual justification. No matter which direction you look from, the numbers are simply awful. For example, Tories may protest that they won a majority of seats in England, but look at how the regionalisation works the other way; in the South East, on 49.9% of the vote the Tories won 89.2% of the seats, and in the East, on 47.1% of the vote they won 89.6% of the seats! So in at least one respect, the Home Counties are positively Communist...

All we have left for FPTP, then, is the constituency link, which is itself thoroughly discredited. If it really let you boot out bad MPs, how do we explain the fact that the only place in the East of England with Labour MPs is Luton? And if the link between one MP and one constituency is so important, please show me an example of a vote in the House of Commons where any MP should have voted a particular way because it was manifestly and unambiguously in the interest of their constituents to do so...

It's fine for the Tory MPs themselves to ignorantly bang on about the status quo out of naked, corrupt self-interest (and by the way, not only is the Tory idea of electoral reform blatant gerrymandering, but what on Earth do they think it'll do to the MP-constituency link if I end up living, not in Cardiff West, but in the South Glamorgan 3rd District?) But for the pundits to be so ignorant of the intellectual case that any GCSE Politics student can understand is unconscionable.

Still, righteous or not, its the Tory MPs we have to work with. In that respect, Nick's handling of the situation has been exemplary and I've been hugely disappointed by the level of the outcry at the mere thought of working with the Tories. Right now, the constitution is what the constitution is and the maths is what the maths is. My sense is that our negotiating team is first class (Laws, Huhne, Alexander and Stunell IIRC) and that we should trust them to get on with it and judge their efforts on the document that emerges.

As for PR, yes, I want it; it's the reason I first became a Lib Dem. And as Paddy pointed out this morning, Cameron's initial offer of basically what Heath offered Thorpe is almost offensively low-balled. Still, the argument that coalitions must be shown to work before PR is introduced is not unreasonable and the possibility of a fully-proportional, strengthened second chamber is not inconsiderable either. On the one hand, I'd like to reiterate the point I made on Lib Dem Voice; even if the voters punish us for pushing too hard for PR (something which doesn't feel especially credible anyway) if we get it, that punishment can hardly be any worse than 9% of the seats on 23% of the vote!

Either way, there are things short of STV I think we should be able to accept, and the consequences of not accepting whatever ends up on the table are so complex as to be almost impossible to strategise. We should above all see what appears on that table before denouncing it.

Listen Very Carefully, I Shall Say This Only Twice

Right, if we're going to speculate about what's going to happen, let's do it properly!

As I largely outlined last week, when Parliament reconvenes there will likely be 644 MPs; the Speaker and the (at this stage 4) Sinn Fein members don't count and Thirsk and Malton won't have polled (which will have an effect for a brief period!) so a majority will be 323. On the current projections, we probably have the following groupings;

Conservative - 306
DUP - 8
Independent Unionist - 1
RIGHT = 315

Labour - 259
SDLP - 3
LEFT = 262

Liberal Democrats - 55
Alliance - 1
CENTRE = 56

SNP - 6
Plaid Cymru - 3
NATS = 9

Caroline Lucas = 1
Sylvia Hermon = 1

So the viable majority scenarios are RIGHT + CENTRE = 371, RIGHT + NATS = 324 and LEFT + CENTRE + NATS = 327 and the RIGHT group can only form a minority government with Lib Dem support (as LEFT + CENTRE = 318 ) So yes, despite my earlier protestations the nationalists do end up with much of the balance of power.

Can we upgrade the metaphor from balanced to knife edge?

Hypothetical? I'll Give You Hypothetical!

I find myself roused from my self-imposed election blogging slumber (enforced by the coincidence of dissertations and exams, including one on polling day!) to make a fairly simple point; the trouble with the media isn't that it's asking too many hypothetical questions about hung parliaments, it's that it isn't asking nearly enough...

Okay, so the obvious one (to Lib Dems at any rate) about the Labservatives going into coalition is probably answered, but why isn't Dave asked if he would form a coalition with The David Miller Band if he was an option instead of Scunner Broon? It's no less likely than any of the variations that Nick's been asked about (though Liberals and Social Democrats of a certain vintage might like to avoid any thoughts of something being run by two men called David...)

Then consider the one known technicality that everyone seems to have ignored. I caught a bit of the leaders debate on UTV which reminded me that, despite what all the explanations of what happens in a hung parliament keep saying, the threshold for an overall majority isn't 325; you have to take Sinn Fein abstaining into account. If they keep their current five seats, that's six non-voting MPs (with the Speaker) and the threshold drops to 322.

And this is the deeper point; as the FT's (admittedly rather barking) story about the Conservatives reaching out to the nationalists illustrates, if Parliament does hang every single seat matters to the maths, and not necessarily in the nationalist super-block pipedream world. For example, the differential between the largest and second-largest party will be crucial, because if all the non-Lib Dem parties can't bridge that gap, then a minority government with Lib Dem support works far more easily (because the Lib Dems can abstain rather than having to vote for things to pass them). If it's a bit bigger, maybe you toss Barnett reform (which we support anyway) at the nationalists and get them onto the minority boat as well.

All of that is speculation, but the trouble is that none of it is appreciably more or less likely than the straight-up coalition everyone seems to want Nick to sign his name to before May 6th (or rather, that they want to harangue him about until he answers at which point they want to harangue him for what his answer was...) Hell, if you want to speculate, try as I have to work out what cabinet jobs Brown or Cameron would offer Nick exactly; maybe they have to have Vince, but that's humiliating to Brown (and in a way it wouldn't be to Miller Band or Balls...), we'd want Justice for the constitutional responsibilities but can you imagine either party wanting to make us responsible for prisons after how much idiotic crowing they've done about soft on crime...

Ultimately, the answer to every hypothetical hasn't changed since Ming was answering them four years ago; people elect their MP to represent them in their defined geographical area, and then those MPs go to Westminster and, through the Queen's Speech Debate, elect a Prime Minister. It may not have mattered that that's how it works for a good few years but, and this is my phrase of the election, that is the system we have. All we can control is who we send, through our ballots, to make that choice. And on that, the position has not and will not changed; the more Liberal Democrat MPs we elect, the more likely we are to see Liberal Democrat policies enacted in the next four years.

Glenn And Steve's Night With The Brain Cell

Pretty much the first thing I ever blogged about was the curious comparison between the dying years of the Major government and the end of the Blair era; between a government working hard to find new ways to screw you with your pants on and one working hard to find its butt with both hands. In an odd combination of deja vu and whatever the exact opposite of nostalgia is, the evidence is building that Labour's new generation are similarly lacking in competence.

Because what we find in The Grauniad (which, let's be clear, I wouldn't touch with a barge pole if it wasn't the only news site that works well on my N900) is The Ed Miller Band pontificating on the manifesto what he wrote. He, of course, believes that it's a radical agenda, but what are we told is the talismanic policy?

The People's Bank.

Hmmm, now where have I heard the idea of the government providing alternative forms of financial institution? Gee, that sounds an awful lot like what Vince Cable had in mind for the nationalisation of banks! Ed, you remember Vince, don't you? He's one of those Lib Dems, that's right, the people you think are agitprop Tories. So an idea he had two years ago is what passes for radical now, is it? Oh, and by the way, given that the government owns enormous chunks of lots of banks, what do you want to base the People's Bank on?

The Post Office?

That's nice, Ed, but I don't know if you remember that three years ago there was this massive swathe of post office closures, a programme Mike German AM described as equivalent to Doctor Beeching in its intentional, fallacious, financially-driven destruction of infrastructure (hey, that's a good line, wonder where he got it from...) Which government was it that presided over that, despite being told repeatedly that the proper approach was to find ways to better use the network? Oh yes, that's right...

And while we're at it, I'm sure I've heard a provider of financial products describing them as "The People's". Who was it who was doing that? Ah, maybe all that time in the queues you made longer got to you...

Between an actual Labour party so devoid of ideas it may have passed the point of heat death and a trade union movement that still hasn't realised it's spent thirteen years paying for its right royal rogering and is now going to get it whether it likes it or not, only one question remains; how useless must David Cameron be if he can't definitively say he's going to beat them?

A Cut-And-Paste Job (Or Two)

Hmmm, I'm sure I promised either here or at Y Barcud Oren that I'd post my European Law essay on the difference between the Lisbon Treaty and the EU Constitution, but I can't find the promise. Still, thanks to the surprisingly effective wonders of cut-and-paste, please find enclosed 1,400 words of legally analysed goodness...

The entry into force of the Treaty of Lisbonⁱ on December 1^st, 2009, was the culmination of a decade-long process of reform that started with the failed Constitutional Treatyⁱⁱ. Much of the rhetoric surrounding Lisbon in the UK has focused on the question of whether it is entirely or substantially the same as the Constitutional Treaty, making that comparison an important issue for academic lawyers.

From their outsets the two processes involved were very different. In establishing the Convention on the Future of Europe, the Laeken Declarationⁱⁱⁱ asked the convention to consider; simplification of the treaties, division of powers in accordance with subsidiarity, the status of the Charter of Fundamental Rights of the European Union^iv and the role of the institutions and of national parliaments within the institutional structure.

The Berlin Declaration, however, merely stated an aim of “placing the European Union on a renewed common basis”. And while the Convention spent eighteen months of plenary sessions considering the questions before it, Berlin's aims were achieved by way of a rapidly executed intergovernmental conference.

This difference is reflected in the structures of the respective treaties. The Constitutional Treaty would have replaced the existing treaties with a single document organised in an entirely new fashion. Lisbon, by contrast, is an amending treaty in the same way as Maastricht, Amsterdam and Nice and leaves the existing treaties in place, albeit with the Treaty Establishing the European Community renamed the Treaty on the Functioning of the European Union (TFEU). An unfortunate result of this structure is that there are now three different numbering systems for the treaties; the original system, the Amsterdam system and now the Lisbon System^v.

The clear intent of the Berlin process was to ensure that the most important reforms proposed in the Constitutional Treaty were enacted and the content of Lisbon is testament to that goal. Certainly, fundamental organisational changes such as the transfer of legal personality from the Community to the Union, reform of the pillar structure and changes to the institutions such as the reallocation of seats in the European Parliament have largely survived.

Equally, the structural differences in the Lisbon Treaty do have an effect on even these most basic of reforms. The Constitution, for example, would have abolished the pillar structure outright, with a single treaty governing all three areas equally. But while Lisbon firmly integrates Police And Judicial Co-operation In Criminal Matters with the European Community in the TFEU^vi, the Common Foreign And Security Policy remains within the Treaty on European Union and subject to specific rules of its own^vii. As a result, CFSP remains more intergovernmental in nature and does not become subject to the jurisdiction of the European Court of Justice as PJCC does.

One of the more obvious omissions from Lisbon is, ironically, an element of the Constitutional Treaty which changed very little, namely the explicit statement that Union law has primacy over the law of member states. This was already well-established in jurisprudence, dating back to Costa v Enel^viii and its predecessors^ix, but was not explicitly stated in the treaties. Lisbon, by contrast, merely provides a declaration that the case law exists and is unaffected by its absence from treaties themselves^x.

Further differences between the treaties resulted from the negotiated compromises required to ensure assent to Lisbon by various member states. Poland were a key player in this, achieving something of a resurrection of the Ioannina Compromise in relation to qualified majority voting and obtaining a Advocate General post by way of an expansion of that role. The failed Irish referendum of 2008 also led to significant concessions, notably the retention of the existing system of one Commissioner per member state; further guarantees on policy matters including abortion, taxation and neutrality are also due to be added to Lisbon by way of a protocol to Croatia's accession treaty due to be concluded by 2011. Ireland and the United Kingdom had also already obtained an opt-out from changes to qualified majority voting in PJCC matters.

The negotiation process also threw particular light on the changed status of the Charter of Fundamental Rights of the European Union. This would have been fully incorporated as Part II of the Constitution, but under Lisbon it is merely elevated to a position equal to that of the TEU and TFEU. Furthermore, while the Charter's new status is generally intended to give make it binding, this is not the case for Poland and the United Kingdom as confirmed by protocol. During the ratification process the Czech Republic sought confirmation that the Charter would not apply retrospectively, particularly to claims by Germans expelled from the former Czechoslovakia after World War II and this was subsequently confirmed.

Of all the differences between Lisbon and the Constitution, however, it is perhaps the very word constitution that is most conspicuous by its absence. As a change of approach it informs pretty much everything else that follows it, removing the driver towards a single document and opening the door, at least philosophically, to the amending treaty process that begat Lisbon. Politically it was also hugely important; between the elevation of the status of the symbols of the union (e.g. the flag and the anthem) and the terminology surrounding the President of the European Council and the Minister for Foreign Affairs, there was a great deal of popular criticism of the quasi-national status accorded to the Union by the Constitution^xi. With the terminology softened to refer to a treaty rather than a constitution and to the High Representative of the Union for Foreign Affairs and Security Policy, such criticism was substantially mollified.

It is vital to recognise, however, that the removal of the word constitution does not in any way prevent Lisbon from being one. Organisations of all shapes, sizes and purposes have a document or documents that govern the relationship between their members, be it the Articles of Association for shareholders in a company, the constitution of a social society or sporting club or the formal written constitution of a country. All of these fall within the general definition of a constitution, whether they purport to ascribe national status or otherwise.

The constitutional status of the Treaties of Rome was thus established long before the Constitutional Treaty was envisioned; the ECJ had referred to the EC Treaty as such in Parti Ecologiste Les Verts v European Parliament^xii and in a later opinion stated that the treaty, “...nonetheless constitutes the constitutional charter of a Community based on the rule of law”^xiii. Regardless of the terminology employed, any later revision of that treaty was bound to retain that status, whether for the Community or, as now post-Lisbon, for the Union.

Ultimately, then, it should be no surprise that Lisbon is as similar to the Constitutional Treaty as it is, given that both processes needed to cover the same ground. It is difficult in those circumstances to justify the assertion that ratification of Lisbon is discredited by its similarity to the Constitutional Treaty; the opposition to the latter was based not on its status as a constitutional document for the Union but on the broader, quasi-national aspects of its approach. Moreover, in the case of the United Kingdom the assertion became necessary in the pursuit of the technical challenges to ratification in which context the asserters were not especially concerned with the practical, as opposed to purely textual, veracity of their assertion^xiv. Either way, it is clear that the transition from the Constitutional Treaty to Lisbon has introduced substantial changes that will have real implications for the operation of the Union going forward; whether those changes improve matters remains, at this early stage, to be seen.

iTreaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, [2007] OJ C306/1

iiTreaty Establishing a Constitution for Europe, [2004] OJ C316/1

iiiLaeken Declaration on the Future of the Union, [2001] SN 273/01

ivCharter of Fundamental Rights of the European Union, [2000] OJ C364/1

vSteiner, J. and Woods, L., “EU Law”, 2009, 10^th Ed., Oxford: Oxford University Press

viPeers, S., “EU Criminal law and the Treaty of Lisbon”, [2008] 33(4) EL Rev 507

viiCraig, P., “The Treaty of Lisbon: Process, Architecture and Substance”, [2008] 33(2) EL Rev 137

viii6/64, Flaminio Costa v ENEL, [1964] ECR 585

ix26/62, Van Gend en Loos v Nederlandse Administratie der Belastingen, [1963] ECR 1

xGriller, S. and Ziller, J. (eds), “The Lisbon Treaty: EU Constitutionalism without a Constitutional Treaty?”, 2008, Vienna: Springer-Verlag

xiKumm, M., “Why Europeans will not embrace constitutional patriotism”, [2008] IJCL 117

xii294/83, Parti Ecologiste ‘Les Verts’ v European Parliament, [1986] ECR 1339

xiiiOpinion 1/91, [1992] OJ C110/1

xivR, on the application of Wheeler v Office of the Prime Minister, Secretary of State for Foreign and Commonwealth Affairs and Speaker of the House of Commons, [2008] EWHC 1409

George Osborne: Hell Freezes Over

It'd be easy to dismiss George Osborne's "Sid The Banks" announcement as just another plucked-from-thin-air policy from a Shadow Chancellor swimming further and further out of his depth. And while those things are true and the blogosphere has done its usual excellent job of exposing the idea's flaws, we should reflect that it's not the first Tory policy announcement this month that suggests they may be embarking on their Greatest Hits tour.

After all, from our position of 20/20 hindsight, it's easy to say that another public share offer won't produce a share-owning democracy because those in the 1980's didn't (emphasising of course that failing to recognise that people buying purposely undervalued assets will be offered and take a quick profit from institutional investors who are willing to pay something approaching the true value of those assets is just the sort of economic illiteracy we've come to expect from Georgie...)

But did you need 20/20 hindsight? Sid may be the exemplar of the big Thatcherite privatisations, but that was December 1986; BT had already gone in December 1984 and the electricity companies would not be sold for another five years. Is it credible to think that the Tories didn't know how those later privatisations would work out? Or is it more likely that they knew but didn't care?

What worries me, however, is that not every Tory privatisation was a Sid job. The rail franchises certainly weren't and neither were their oft-forgotten predecessor, the bus companies. In both cases, many of the resulting companies were management buy-outs later absorbed into bigger concerns. Gee, do you think the Tories might propose something akin to management buy-outs in other areas of the public sector so that big companies can once again snap them up later on so it's not so controversial as direct privatisation while providing a juicy dividend to the workers involved?

Okay, the Tories might have had a Damascene conversion to co-operativism, but then I might be signed to play power forward for the Los Angeles Clippers. It seems rather more likely that as the individual elements of the grand Tory scheme emerge, we'll find that many of them are similarly designed, to disguise the real intentions. And hey, if you were proposing some of the things the Tories were, wouldn't you be ashamed of them too?

Saying The H Word

Every month(ish) in Y Barcud Oren, I try as best as possible to explain the latest developments in Welsh politics to the English. It's a task I enjoy enormously (and let's face it, if you had two government parties throwing you this much comedy material, you'd be enjoying it too) but sometimes covering the news isn't enough to give a sense of the developing trends sneaking their way into the mix. And with just ninety days (presumably) until the polls open, there's one developing trend in Welsh politics we really should be looking at.

There's a party excited about a hung parliament. And it isn't us.

I suppose Alex Salmond's boast that the SNP will return 20 MPs at the general election is so oft-repeated that it might pass you by, particularly in a psephologically-savvy party that knows that a party that returned 21 of 72 constituency MSPs (29%) in an election specifically about Scotland will have trouble returning 20 of 59 MPs (34%) in a UK-wide election. And with coverage of devolved matters so patchy, leaving the English viewer with just intermittent nods to party conferences and the odd controversy, you could be forgiven for writing it off as bog-standard leadership bluster. But when you live with it every day, you can't fail but come to a far more disturbing conclusion.

They actually believe it. And I mean believe it, as the True Word and the Good News.

In the nationalist oral history (which has now transcended mere political narrative and become a national epic poem, somewhere between a new Mabinogion and the Mahabharata) the 2007 elections represented a fundamental turning point wherein the people of Scotland and Wales rose up and demanded that Plaid and the SNP lead them to glory. Minor details like the inevitability of two parties that had spent years framing themselves as considerably Labourer than yow benefiting from the unpopularity of a disastrous Labour Prime Minister and the supposedly crushing mandate only amounting to 31% and 22% of the vote in Scotland and Wales respectively somehow failed to trouble the chroniclers.

Now if you're telling yourself that sort of story you're already in all sorts of psychological trouble, but the hung parliament idea adds another layer of lunacy. The SNP target of 20 surely presumes that even in the worst case scenario they get to 15 and Plaid must be imagining a green sweep from Ynys Mon and Aberconwy in the north through Ceredigion to Llanelli that "guarantees" them at least 7. And if your minimum nationalist expectation is 22, with an option on anything up to 35, then you have to consider yourself, however delusionally, a player in the post-hung game.

At this point the rational analyst thinks that it's quite cute that the nats think the other boys will let them play but wonders who exactly they think will give them the ball. Getting Plaid onto the same page as the Tories in Wales for the rainbow that never was was tough enough and as for the SNP, one imagines that Annabel Goldie's response to any approach from them would be distinctly Anglo-Saxon. Maybe the SNP's referendum (which you have to presume would be the non-negotiable first item on their coalition shopping list) could be delivered by Westminster itself without Dave having to beg to Annabel, but post-hung Dave will want to keep the good ship Change on course for a decisive second election win and if any issue is likely to blow him onto the rocks of the small matter of his party still being, you know, Tories, giving the SNP a referendum is it.

That rational analyst is, however, being a bit Lib Dem in assuming that the Tories are the most relevant partner here. What happens if Labour manage to stay over 300 and a Labour-nationalist coalition is a possibility? The Lib Dems might feel that Labour's losing fifty-odd seats and quite possibly the popular vote overall disqualified them as partners. But for the nationalists, for whom any coalition deal is just the next step in their epic poem, is that a factor? After all, it is essentially what Plaid are doing now, albeit in the Assembly where we've slightly more experience and a lot more maturity about the nature of coalition politics than Westminster. If the nats feel they can come back to their nations and successfully justify rewarding failure because the epic poem told them to, they could well go for it.

Of course, that's all presuming the delusion becomes reality and the fact I'm calling it a delusion should tell you all you need to know about that. Nevertheless it's a delusion that will frame, however subconsciously, all the nationalist spin from here on in. Moreover, you have to wonder where the nationalist heads will be when they wake up on May 8th to find their dreams in tatters. With a powers referendum in Wales still to deliver and a year of governing left for both parties, any failure to respond to the reality of their lot could be catastrophic for their countries and ultimately for their votes.