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