Democracy in Britain has been undermined by successive governments. Years of centralisation under the Conservatives, and a decade of constitutional vandalism by Tony Blair, have eroded the public’s faith in the ability of democratic politics to make a difference. Fewer people than ever now vote. The political process is increasingly distrusted. direct-democracy.co.uk

What can be done to revive our failing system of “post-representative” democracy? the

It is time for change. Power must be handed away from remote and unaccountable elites down to individuals and communities. The political process must be opened up. This should include: z A right of so that ordinary voters can help set the political agenda. z Open primaries so that people – not party hierarchies – select candidates for office.

The British constitution also needs to be reformed to ensure that the elected legislature is better able to hold the executive and the permanent civil service to account. This would involve: localist z Abolishing the Crown Prerogative. z Introducing sunset clauses on legislation. z Reforming the upper legislative chamber. z Holding Parliamentary hearings to ratify senior appointments to quangos. z Making judges more accountable for how they interpret the law. z Transferring power from .

In addition, many of the functions currently carried out by central government could be better carried out locally. Local government should be set free. This would involve: z Devolving power from Whitehall to the town halls. z Making local government self-financing. papers

Centre for Policy Sudies 57 Tufton Street SW1P 3QL www.cps.org.uk www.direct-democracy.co.uk 1. Open politics Direct democracy supporters The aim of the Centre for Policy Studies MP is to develop and promote policies that MP provide freedom and encouragement Roger Bird for individuals to pursue the aspirations Martin Callanan MEP they have for themselves and their MP families, within the security and Paul Carter obligations of a stable and law-abiding MP nation. The views expressed in our MP publications are, however, the sole Philip Dunne MP responsibility of the authors. Murdo Fraser MSP Contributions are chosen for their value MP in informing public debate and should Robert Goodwill MP not be taken as representing a corporate MP view of the CPS or of its Directors. The CPS values its independence and does not carry on activities with the intention MP of affecting public support for any Daniel Hannan MEP registered or for MP candidates at election, or to influence Chris Heaton-Harris MEP voters in a . MP MP Ed Howker MP Stewart Jackson MP Syed Kamall MEP Direct Democracy is a group of 38 Scott Kelly Conservative MPs, MEPs, MSPs and Danny Kruger activists dedicated to the principles of localism and the devolution of power. Ali Miraj The Localist Papers are an examination Brian Monteith of how these principles might apply to Brooks Newmark MP specific fields of policy. They are not manifestoes, and not all our supporters endorse them in full. Rather, they MP explore some possible ways in which power could be shifted from the Henry Smith bureaucracy of the central state to local James Sproule communities and individual citizens. MP

© Centre for Policy Studies, May 2007

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Printed by the Centre for Policy Studies, 57 Tufton Street, London SW1 Contents

1. Summary 1

2. Broken Democracy 2

3. Open Politics 3

4. Constitutional Reform 6

5. Liberate local government 13

6. Conclusion 15

The Localist Papers

Open Politics

1. Summary

Democracy in Britain has been undermined The British constitution needs to be reformed by successive governments. Years of to ensure that the elected legislature is better centralisation under the Conservatives and a able to hold the executive and the permanent decade of constitutional vandalism by Tony civil service to account. This would involve: Blair have eroded the public’s faith in the ƒ Abolishing the Crown Prerogative ability of democratic politics to make a difference. Fewer people than ever vote. The ƒ Introducing sunset clauses on political process is increasingly distrusted. legislation What can be done to revive our failing ƒ Reforming the upper legislative system of “post-representative” democracy? chamber This paper advocates a coherent package of ƒ Holding Parliamentary hearings to direct democracy. Power must be handed ratify senior appointments to quangoes away from remote élites down to individuals and communities. The political process must ƒ Making judges more accountable for be opened up. Instead of being the preserve how they interpret the law of an aloof political caste, politics should be ƒ Repatriating power from Brussels given back to the people. The process of politics itself needs to be opened up with: In addition, many of the functions currently carried out by central government could be ƒ A right of initiative so that ordinary better carried out locally. Local government voters can help set the political agenda should be set free. This would involve: ƒ Open primaries so that people, not party ƒ Devolving power from Whitehall to the hierarchies, select candidates for office town halls ƒ Making local councils self-financing 2 The Localist Papers: Open Politics

1 2. Broken democracy Westminster but in Brussels. Bureaucrats, not ministers, make decisions within the civil There are many unfortunate legacies of service. Vital decisions – such as whether to Labour’s decade in power, but perhaps the go to war – are taken on the Prime Minister’s most worrying is the damage Tony Blair’s sofa, not by Parliament. Our laws are still regime has done to the health of British passed by Parliament, but they are democracy, politics and our constitution. reinterpreted according to the whim of Fewer people than ever vote; politicians are activist judges. despised and distrusted to an unprecedented The growing remoteness of the political system extent; even the Union itself seems on the is one reason why people have lost faith in verge of collapse. politicians and have turned away from elections: There are two central problems, and they are they know that no matter whom they elect, it both equally damaging. In search of a quiet will not make much difference to their daily life, politicians have abdicated responsibility lives. MP for Wyre Forest, for over a range of issues. example, was elected solely on the issue of preserving a local hospital – yet he is as powerless as any of his colleagues to bring that Remember the words of Sir about. But there is another problem. Those areas Humphrey Appleby, who boasted which ministers do retain responsibility for appear to have been grossly mishandled. The that “since 1832, we have been health service and education system are stifled gradually excluding the ordinary by bureaucracy, their workers constrained by regimes of centrally-imposed targets, the voter from government”. When meeting of which, rather than the welfare of challenged on this, he responds: patients or pupils, becomes the first priority of public-sector workers. Policing, too, is in “If the right people don’t have crisis – for all the pledges over increasing the power, do you know what number of “bobbies on the beat”, the only thing that seems to be increasing is the happens? The wrong people get it. paperwork. Despite these failures, the Politicians! Councillors! Ordinary Government retains its monopoly of policy – there is no way for the public to come along voters!” Localism means and point out that a particular law was misguided, or to suggest a measure that could transferring power away from the usefully be adopted. “right people” – and revitalising The paradox, therefore, is that Parliament has Parliament and British democracy. too much power over too little. Ministers micro-manage services such as health, with counter-productive consequences, but A bewildering and costly range of quangoes disclaim responsibility for other vital areas of – unelected bodies unaccountable to elected policy. At the same time, the past decade has representatives – have taken control of many seen a string of ill-conceived constitutional of the functions of government. Much of measures, designed to satisfy particular our legislation is now made not in interest groups or gain short-term popularity,

1 Statistics from Germany show that the EU is responsible for 84% of legislation in that country. The Localist Papers: Open Politics 3

with no thought of the long-term represent constituencies that are far from consequences. The “reform” of the House marginal. Unless an MP has the misfortune of of Lords; devolution to Scotland and ; being from a marginal seat, or having the transforming the position and powers of the boundaries of his constituency redrawn, there – all were hasty measures, is little realistic prospect of not being returned and all are now showing their flaws. as an MP (provided he retains the confidence of a small number of local party members). It has long been a conservative axiom that Members of the are change should never be imposed for change’s elected from party list systems that exclude sake; that constitutional reform should be ordinary voters. Such systems breed approached hesitantly and carefully, to solve unresponsiveness. Most MPs are more likely specific problems. Labour’s reforms have to take into account the views of their party failed to meet these requirements – but those members (or party Whips) than the views of outlined in this paper would. The guiding those who vote to represent them. principle is to move power over decisions as close as possible to the people they affect. How might the process of politics be changed to make it more responsive? Remember the words of Sir Humphrey Appleby, who boasts in Yes, Prime Minister Party funding that “since 1832, we have been gradually excluding the ordinary voter from The first issue to consider is the way parties government”. When challenged on this, he organise and finance themselves. responds: “If the right people don’t have Traditionally, parties have been funded by the power, do you know what happens? The rich, the unions or the state, with their wrong people get it. Politicians! Councillors! supporters treated as little more than Ordinary voters!” Localism means footsoldiers. Now, in an effort to lessen the transferring power away from the “right parties’ dependence on single donors, the people” – and in the process revitalising danger is that state funding will be increased, politics, Parliament, and British democracy. according to Sir Hayden Phillips’s prescription, further alienating the people from their politicians, increasing elected 3. Open Politics representatives’ dependence on the state, ossifying the current party structures and – as Thanks to Sir Humphrey and his friends, the the experience of funding structures on the ordinary voter has indeed been excluded Continent shows – providing the opportunity from an increasingly unresponsive form of for more, rather than less, corruption. government. The result has been lower turnout, increased apathy, and general A far more attractive alternative is where cynicism about the political process. Polls parties are funded by multiple, smaller show that most people agree that politicians donations. Evidence from the US shows that are self-interested, know nothing about the with the internet, the role of small one-off real world, make promises they cannot keep, political donations is becoming increasingly are much of a muchness, don’t reflect their important. Web power has raised large sums views, and will not be able to improve the of money to fund the campaigns of condition of the country. Similarly, the candidates once considered too outside the independent Power Inquiry, for example, mainstream to attract serious backing. Instead concluded that “the current way of doing of looking to the taxpayer to fund politics, politics is killing politics.” political parties need to innovate and find ways to encourage large numbers of small Few politicians need to be responsive to the donations. views and wishes of the electorate. Even assuming that their seats are not one-party The impact that the internet is having on fiefdoms, most Members of Parliament businesses is well understood; barriers to 4 The Localist Papers: Open Politics

entry have fallen, new entrants have found it Conservative party. But their use should be easier to compete with established operators, extended so that candidate selection is and distribution costs have come down. As a opened up to the public as a whole, not just consequence many existing businesses have party members. Candidates would then be had to either adapt to new competition or both more representative of, and popular lose market share – or even both. What is within, their communities. Ordinary voters less well understood is the effect of the same would have a real say as to who might forces on politics. represent them, rather than merely choosing between different candidates served up by the In the age of YouTube, established political party hierarchies. parties may find that they too, face competition from new, nimble-footed More generally, any measure which competitors. Conventially politicians needed strengthens democracy within a political costly and hierarchical party machines to get party, and gives a voice to its membership, their messages across. They needed to brand should be encouraged. themselves and their candidates for a mass market. For most of the past century, such Taking the initiative barriers to entry ensured that politics But what of those who are not active in remained the preserve of a few big players. politics – who do not even vote? No matter This may well be about to change. The costs who they are, there will be issues they are of communicating via the internet have passionate about, and wish to express an tumbled, and almost anyone can today make opinion upon – hence the need to break the their equivalent of a party political broadcast. Government’s monopoly on legislation, and Voters themselves are no longer the passive let the people have their say. viewers of electronic news and The country where this idea has been most entertainment, but consumers able to seek successful – where direct democracy is a out the views and the information that they living, breathing, constantly employed part of want. The idea of a standardised mass the constitution – is . There, market in votes may turn out to be as dated towns, cantons and communities poll the in politics as it is in many other areas. Far people on all manner of things, from the size from offering voters template choices at the and composition of budgets to immigration ballot box, political parties may soon find decisions. It is up to each locality to decide on that it instead pays to give the voter a wider its own recipe for democracy – an idea we choice under a less centrally controlled party could do well to adopt in Britain. brand. This could have profound consequences not only in terms of how The Swiss have three types of national poll. parties raise funds, but how they come to There are citizens’ , ideas put choose who represents them in elections. forward by a particular group to be voted on by the population as a whole.2 There are blocking referenda, attempts to veto recently passed legislation if a particular group is Open Primaries unhappy with it. And there are referenda to In a similar vein, the use of proper open confirm changes to the constitution: the primaries to select candidates for public theory being that politicians elected under office will help to re-engage more people in the political process and will give the electorate real choice. 2 See Prof M Qvortrup, Supply Side Politics: how Citizens’ Initiatives could revitalise British politics, Centre Direct Democracy was the first to propose for Policy Studies, 2007. This paper demonstrated “open primaries” two years ago. And the that the introduction of the Citizens’ Initiative in idea has now taken root within the the UK could in part redress the malaise currently affecting British politics. The Localist Papers: Open Politics 5

one set of rules should not change those learning and judgement of the legislature”, as rules without a further and specific mandate. The Los Angeles Times put it in 1912. Aside from the fact that this betrays a profound It is worth pointing out that these are not distrust in ordinary people, it is false. The law, crude plebiscites, of the kind where a essential human rights, the liberty of government gets a rubber stamp for minorities to live as they choose – these are decisions it has already made. These are not things that can or should be set aside by a checks and balances of the most basic, tyrannous majority, and nor have they been. effective kind, and all three could – with In the case of the death penalty, for example, some adaptation – be used to strengthen only three of the 38 American states which democracy in Britain. employ it do so as a consequence of a The objections to this form of direct popular ballot initiative. And the evidence democracy run as follows: that might work suggests that states which enjoy a citizens’ in Switzerland, but the UK is a bigger initiative are less likely to adopt the death country, with different traditions. This penalty than states that do not allow voters to system would never take on here. It is too enact legislation through initiatives. expensive. It would replace Parliamentary Then there is the issue of legislative paralysis, deliberation with the rule of the mob and ill- that the public would be constantly second- considered, knee-jerk legislation that imposes guessing Parliament, and nothing would be the crude rule of the majority. Some have solved. Again, the example of Switzerland argued that it would lead to the suggests the opposite. Of the laws passed by reintroduction of the death penalty, or the legislature, 95% sail through unchallenged. slashing the subsidy for Radio 3 or turning But knowing that their laws can be sent back the Royal Opera House into a bingo hall. with the political equivalent of “C minus – see These arguments have been demolished.3 me” scrawled over them concentrates For example, the quality of legislation has politicians’ minds wonderfully, and improves been found by independent studies to be the quality of those laws that do pass. The markedly superior in bills put forward by recent poll on Radio 4’s Today asking listeners citizens than it is in bills proposed by the which particular laws they would like to repeal legislature – for one thing, there is no demonstrates that Parliament does not get it “earmarking”, for another, the language has right every time, especially when one party has to be easily comprehensible, for a third, the an unassailable majority and can simply shove laws (in the US and Switzerland, at least) through hastily written and ill-conceived laws. have been carefully drafted, emerging from The more you study citizens’ initiatives, the long periods of campaigning, discussion and more the advantages stack up. They can be fine-tuning. Indeed, not only are the bills folded into existing election days, lessening the more carefully composed, but the voters are cost (unlike the Swiss, the British would more assiduous in finding out what they are probably balk at voting in six elections and 30 voting on – when it came to the Danish referenda per year). When that is done, turnout referendum on the , increases in the area. Places that have embraced surveys found that members of the public direct democracy have more political were in fact better informed of the treaty’s involvement, cheaper public services, less tax precise details than were their elected avoidance (if the budget comes under representatives. democratic scrutiny), even – and this is scarcely Then there is the issue of populist capture – believable –stronger economic growth. imposing the “ignorance and caprice and irresponsibility” of the masses above “the

3 See Prof M Qvortrup, op. cit., for more details. 6 The Localist Papers: Open Politics

So how would this system operate in Britain? especially in terms of transfers of power Obviously, there would have to be some upwards, downwards or sideways, would have modifications – but it is crucial that we to win popular approval. choose a form of direct democracy that both A right of popular initiative, coupled with a empowers people, and allows them to see system of open primaries, would have a the fruits of that empowerment. In many profound effect on our political system. Not countries with theoretical provision for only would the people have a far more direct citizens to participate in democracy, the say as to who should represent them, but in practice has withered away – either because allowing the people to help shape the political the threshold is too high (for example, too agenda, they would determine what their many signatures are needed to put forward representatives deliberated. an initiative, or the time to gather them is too short) or because what the people put forward can be brushed aside by Parliament as non-binding (as in New Zealand). Central control has, over the past We would not make citizens’ initiatives subject to a mass popular vote, which was then decade, been shown to have binding on Parliament – the supremacy of the failed comprehensively. Queen-in-Parliament is, after all, the foundation of our political system. Instead, Ministers – for the best of petitions which gathered sufficient support – reasons – have tried to improve say five per cent of the electorate – would have to be included in the Queen’s Speech as government performance in People’s Bills, read after those proposed by the every area of policy, no matter Government. These would have to be given sufficient Parliamentary time – no procedural how obscure. They have failed. chicanery, please – and would be subject to a free vote from MPs. MPs would of course be free to oppose the measures, but would then With such a system of open politics, there have to explain to their electors why they voted would of course be no requirement for as they did. This would also have the pleasing people to participate – if the British public are side-effect of squeezing the Parliamentary time indeed too lazy and apathetic to rule available for the Government’s own bills, themselves, the results would be obvious. But forcing it to be slightly more selective about before arguing that Britain is not ready for what it puts forward, rather than burying such a drastic change, consider the words of legislators in a tidal wave of unnecessary Nobel Prize-winner Amartya Sen. “A legislation, as at present. country,” he said, “does not have to be judged to be fit for democracy. Rather, it has The blocking referendum and the to become fit through democracy.” It will be constitutional referendum would, however, a great experiment, but all the evidence both be perfectly suited to the British suggests that it will be successful one. system. The first would not dictate to Parliament, merely ask it to think again – perhaps to consider difficulties in legislation which had only belatedly become apparent. 4. Constitutional Reform As for the constitutional referendum, what could be more just? It is damaging to Britain’s constitution places too much power democracy if legislators can rewrite the rules into the hands of remote and unaccountable to suit their own convenience – this way, institutions. It needs rethinking. anything affecting their terms of trade, The Localist Papers: Open Politics 7

The problem with Parliament, and its now Conservative Party policy). These ministers, is that they have too much power powers are terrifyingly broad. They include over too little. This is understandable – not just the power to appoint ambassadors politicians hate taking the blame when things and heads of commissions and agencies, but go wrong, so are only too eager to place the power to take us to war without themselves at arm’s length; at the same time, Parliament’s approval. These powers of the natural tendency of all governments and patronage should be transferred to institutions is towards the agglomeration of Parliament, which would make or confirm power. So what needs to be fixed about the appointments through open hearings. The way Westminster works? system would be similar to that which operates in the US where senior judges, heads The most obvious point is that central of quangoes, commissioners appointed to control has, over the past decade, been investigate government failures and shown to have failed comprehensively. ambassadors must explain their qualifications, Ministers – for the best of reasons – have priorities and ambitions to the legislature, and tried to improve government performance in through it, to the electorate. every area of policy, no matter how obscure. They have brought in dozens of plans, strategies and public service agreements, each carrying a quiverful of targets, dealing The system would be similar to not just with results but with how people do that which operates in the US their jobs. This distorts people’s priorities, as they focus on meeting the targets rather than where senior judges, heads of prioritising the interests of the citizens they should be serving. These targets are, quangoes, commissioners inevitably, accompanied by structures to appointed to investigate enforce compliance – hence a massive growth in inspectors and inspections, government failures and attracting both more resources and the ambassadors must explain their petrified attention of those who should be focusing on doing their actual job. qualifications, priorities and ambitions to the legislature, and Reining in the Prime Minister The problem goes to the very top of through it, to the electorate. government. Decisions are increasingly made not by Parliament, but by the Prime Minister; and not by collective Cabinet discussion, but This would also neatly solve some of the by a group of largely unelected advisers problems with the honours system, so lounging on the sofas of Downing Street. recently exposed. Rather than honours being The party system gives a Prime Minister with granted in return for financial favours, majorities as large as Tony Blair’s effective knighthoods and the like could be decided on control of Parliament; consequently, the by Parliament, again in the full view of public institution has withered under his scrutiny. premiership (as reflected by his sparse attendance record in the House of Another way of reasserting the primacy of Commons). Parliament within government – and therefore both strengthening its legitimacy vis- Two years ago, Direct Democracy suggested à-vis the electorate, and narrowing the divide that the Prime Minister should be stripped of between the political classes and the voters – the powers he exercises in the name of the would be to give it a power of approval over monarch under Crown Prerogative (this is treaties (as opposed to having them agreed, as 8 The Localist Papers: Open Politics

they are at present, by ministers via Crown renewed throughout the 1970s and 1980s, Prerogative). It would no doubt strengthen being the supreme example. But the practice our negotiators’ hand in international has never become widespread. meetings – and stiffen their resolve – if they This system could be applied to the creation knew they would be held accountable for and maintenance of statutory bodies. The what was agreed. If it proves impractical to heads of the Health and Safety Executive, the insist on this for every single accord, it Equal Opportunities Commission and every should at the very least apply where a foreign other quango in the land should be required treaty imposes domestic obligations on to justify their continued existence before the Britain. (For more on this, see the relevant parliamentary committee each year, forthcoming Direct Democracy paper on and apply for funding on an annual basis. foreign policy). Reforming the Lords Bringing about better laws Of all the areas of the constitution vandalised One of the most urgent challenges is to by Labour, the House of Lords is the most improve the quality of legislation. The volume obvious. Such is the disillusionment with the of the Labour administration’s legislative way it has been packed with party donors that incontinence has been matched only by the the House of Commons took the poor quality of the laws produced – which unprecedented step recently of voting for a often require considerable further legislation fully elected chamber (when Direct to fix. Ministers prefer shiny new measures to Democracy made such a proposal two years making proper use of existing ones – after ago, it was considered radical). The problem 9/11, for example, they awarded themselves now is what shape that new Lords should huge new powers rather than applying take: on the one hand, appointment is existing laws on incitement, conspiracy and undemocratic; on the other, nobody wants to nationality rights. In nine years, Labour create a new tranche of politicians at public brought in five Acts on immigration, seven expense. on terrorism, 10 on education, 11 on health and social care and 23 on criminal justice. It The current chamber does an excellent job of has also created more than 3,000 new crimes revising legislation and challenging the and passed more than 32,000 statutory government. Yet, whatever the individual instruments. As for the shoddiness of much qualities of its members, it embodies much that of this legislation, look at the Identity Cards is wrong and undemocratic about the Act, which accidentally repealed the law administration of Britain. It is made up of making it illegal to have a false passport; or people who can pass laws without having to the Safeguarding Vulnerable Groups Act, justify themselves to those who obey them. The which extended criminal-record checks to a appointments system fills it with ex-politicians, third of the working population and was so or people who have worked their way up badly drafted that 250 amendments needed to through the CBI or TUC, BMA or NFU (rather be made. than actual practising businessmen, factory workers, doctors or farmers). As well as the Swiss “blocking referendum”, outlined above, there is another way to An ideal Upper House would reflect the revisit legislation without any popular temper of the country as a whole without agitation – sunset clauses. Various establishing a new tier of politicians. So why governments around the world have toyed not rely on elections that have already taken with time-limited legislation: that is, laws that place, and create a Chamber of the Regions? automatically lapse after a certain period This would be filled with existing county and unless explicitly reaffirmed. Britain, too, has borough councillors in proportion to their occasionally made use of the device, the parties’ representation in each county or city. Prevention of Terrorism Act, annually This would correct the metropolitan bias of The Localist Papers: Open Politics 9

the Upper House; give a valuable fillip to the accountable, he has little incentive to do his prestige of local government; and allow life job especially well. Given that there are now peerages (or, for that matter, hereditary more than 2,500 quangoes, employing an peerages) to become wholly a mark of average of 800 staff each, the extent to which service, devoid of political significance. they are stifling good government becomes readily apparent. Curbing the quangoes This reform of the House of Lords would also have a pleasant side-effect: it would While opposition parties have lower the status of the quangocrats, who would no longer receive a place in the Upper promised to reduce the number of Chamber merely in exchange for chairing quangoes, their number has councils, boards and agencies. steadily increased over the years, One of the reasons why voters no longer see any connection between where they put their and their powers have grown. cross and anything that affects their lives is Instead of merely being marked for that the make-up of their local council, or of the House of Commons, often has less abolition, quangoes need to be impact on them than that of the Highways Authority, the Child Support Agency, the made properly accountable to Health and Safety Executive and a thousand Parliament. other quangoes. This is “post-representative democracy”, in which unprecedented powers are now wielded by bodies which are part of the state machine, but outside the While many opposition parties have promised democratic process. The Qualifications and to reduce the number of quangoes, their Standards Authority sets exams; the National number has steadily increased over the years, Institute for Clinical Excellence (NICE) and their powers have grown. Instead of merely determines what drugs doctors might give being marked for abolition, quangoes need to their patients. Every time there is a story in be made properly accountable to Parliament. the newspapers about a particular drug being The heads of major quangoes need to have available, it is NICE which has made the their appointments ratified by House of decision – a blanket decision, for the entire Commons Select Committee hearings. Asking country, which takes no account of local the to approve or needs and capabilities. veto the appointments to the Defence The proliferation of quangoes is self- Procurement Agency or the Health Select evidently damaging to democracy – which is Committee to ratify the head of the NICE one reason why they should be under far would strengthen the power of Parliament greater Parliamentary control. But it is bad against the permanent bureaucracy. for civic society, and for social responsibility. In a similar way, it is time to consider The creation of a ruling caste of state annualised budgets for such quangoes. If administrators has come at the expense of Parliament decided how much public money traditional authority figures. The position of to allocate to each quango, rather than a clergyman or headmaster no longer has the nameless Treasury civil servant, quangoes same degree of respect, largely because their would be much more inclined to do as places have been filled by assessors, Parliament wished, rather than what career regulators and mediators. Then there is the bureaucracy desired. most glaring problem of all with the quangoes – if someone is not directly 10 The Localist Papers: Open Politics

Humbling the judiciary for judicial process. They repeatedly block the The readiness of judges to take political repatriation of illegal immigrants; but never decisions – that is, to rule on the basis of order the deportation of someone allowed to what they think the law ought to say rather remain in Britain. than what it actually says – is not peculiar to What, then, can be done? Change is possible Britain. In almost every democracy, the at a local level, by giving control over judiciary has sought to expand its powers sentencing to an elected sheriff (this will be beyond what the legislature has laid down. discussed in a later paper). Parliament should The problem with judicial activism is that also oversee senior judicial appointments in a there is, by definition, no legislative rigorous, open fashion, as proposed above. prophylactic against it. MPs can insert Finally, the authority of Parliament should be whatever safeguards they want but, if a court stated explicitly in a British Bill of Rights, dislikes a statute, it will simply ignore them, setting out areas where MPs’ decisions were and appeal to a higher power – a purpose for supreme – and reaffirming that British laws, which European law, which now takes passed by British lawmakers, should take precedence over British, has proved ideal. precedence over EU ones, as they do not at the moment. Consider the Fayed nationality case of 1996. Mr Fayed had been refused British The Conservatives have gone some way citizenship, and wanted to know why. He towards this position, by advocating a Bill of took his case to court, where Lord Woolf Rights to replace the European Convention found in his favour. The judge then tacked on Human Rights which has, unfortunately, on an extraordinary observation to his ruling: seen the precious ideal of “human rights” “this judgment,” he said, “does not imply repeatedly abused (the ECHR having been any criticism of the or his used by prisoners demanding Freeview on their department. Until this court decided otherwise televisions, or by pupils refusing to be [our emphasis], it was perfectly reasonable to punished). But it is Conservative policy still to take a different view.” Yet the 1981 accept the primacy of European law, allowing Nationality Act, which was consciously ever further encroachment on British – and designed to prevent such rulings, said: “The Parliamentary – jurisdiction. The European Home Secretary’s decision shall not be Court of Justice has a hunger for power that subject to review in or challenge by any court surpasses even the most activist British judge, whatever.” Lord Woolf (who has argued and has repeatedly pushed its authority extra-judicially that judges have not only a beyond what is written in the treaties. right but a duty to strike down bad statutes) simply ignored this provision. Bringing power back from Brussels The European Union is perhaps the greatest Judges, in short, have come to see their own quango of all. And if it is accepted that consciences as a higher authority than any decisions should be taken as closely as statute – and it is striking that when they possible to the people they affect, that place have taken arms against Parliament, they will seldom be Brussels. have almost always done so from the same direction. They attacked the idea that MPs The problem is not that international should impose minimum sentences for agreements and co-operation are bad things certain crimes; but had no objection to in and of themselves. They are manifestly not. maximum ones. They howled when Jack Anyone can see the benefits of such co- Straw ruled that some murderers ought operation just by walking into their nearest never to be released; but were strangely silent Tesco and browsing through the mind- when, under the terms of the Belfast boggling array of imported vegetables, or by Agreement, a number of convicted taking the Eurostar to Paris and seamlessly murderers were released, with equal disregard connecting their mobile phone. The Localist Papers: Open Politics 11

But if you believe in personal liberty, Rethinking Unionism democratic accountability and clean The mishmash of constitutional measures government, it is difficult to remain part of established by the Labour Government is what the EU is becoming. It is so poorly run beginning to fall apart under the weight of that the European Commission’s accounts their own contradictions. Nowhere is this have been rejected by auditors for more than more apparent than in the case of devolution. a decade; its laws and regulations hamstring Labour hived off powers to the Scottish our people and politicians and prevent them Parliament and Welsh Assembly in an effort from doing what is best for the country and to make the governance of those countries themselves. During the 2005 election, for more representative after years in which example, the Commission announced that Labour-voting Scots were still ruled by Tories the Conservative proposal to set an upper in Westminster. limit to the number of immigrants entering Britain was incompatible with the EU’s “Area of Freedom, Security and Justice”. The Common Agricultural Policy has ruined Far from localism, the EU is going farming and kept Africa in impoverishment; the Common Fisheries Policy has decimated in the opposite direction, fish stocks. All of this has served to constantly centralising powers, undermine confidence in the electoral process. Restoring faith in the integrity of and heaping ever higher the pile of our democracy means, in the first instance, legislation. It is this, ultimately, giving elected representatives the legal power to stand by their manifesto pledges. that militates against our If Britain is to be a democratic country, it participation. Repatriation of cannot accept the supremacy of regulations passed by unaccountable functionaries. Just power from Brussels is not an end as that precept should apply at home, so it in itself. Rather, it is a means to an should be extended to Brussels. As suggested above, policies stemming from foreign treaty end – the end being a freer and obligations should come into force only more accountable Britain. following their specific implementation by Parliament; and Sections Two and Three of the European Communities Act should be repealed to the same end. This would ensure The upshot, however, has been the worst of that EU laws came into effect in Britain only both worlds: the failings of the Labour/Lib following a vote Parliament. Dem coalition in Holyrood have seen the Far from localism, the EU is going in the secessionist Scottish Nationalists become the opposite direction, constantly centralising largest party while the English are increasingly powers, and heaping ever higher the resentful as they see their money being accumulated pile of Brussels legislation. It is funnelled north to support a bloated Scottish this, ultimately, that militates against our state; and as Scottish MPs vote en bloc to push participation. Repatriation of power from through measures – such as bans on hunting Brussels is not an end in itself. Rather, it is a or smoking in public places, or the creation of means to an end – the end being a freer and city academies and foundation hospitals – more accountable Britain. which do not affect their own constituents. Localism would wipe away these resentments and tensions at a stroke. If those powers which have been granted to devolved 12 The Localist Papers: Open Politics

assemblies in Edinburgh and Cardiff were authorities fiscally as well as politically returned to the local level in England, then independent – under the system outlined later Westminster MPs would be on a level in this paper – would make this central playing field – whether they had been elected funding more transparent, and end the crude in Plymouth or Pontypridd, they would be system whereby money is allocated by voting on, and have power over, the same country, rather than by which particular issues. Indeed, this would create a situation region, in whichever country, had greatest where the Scots and Welsh would be the need of it. ones looking enviously over the border, as they would have less control of their own . affairs than the citizens of England . It Northern Ireland is possibly the least would not be long, perhaps, before localist democratic area of the UK. For campaigners won the battle to bring similar understandable reasons, the province is run power to the citizen across the UK. If, under a power-sharing system which ensures however, the Scots decided that their that all parties have a stake in government. Yet appointed procurator fiscals did a better job while this helps defuse tensions between than the elected sheriffs with powers over republicans and Unionists, it is highly sentencing advocated for England, they damaging to democracy. Under the d’Hondt would be perfectly at liberty to keep them: formula for proportional representation, each the essence of localism, after all, is that each of the major parties is guaranteed a stake in area should decide for itself which system government in the form of ministerial suits it best. positions should it achieve a certain proportion Such a transfer of power would also of the vote. Should that government neutralise many of the arguments in favour disappoint, there is no mechanism for of Scottish independence. Separatism is removing it from power: not only is there no often couched in terms of increasing opposition to keep the governing parties Scotland’s freedom of manoeuvre, of honest, but there is no incentive for them to allowing it more flexibility in terms of improve their performance. arranging its economy and society. How can This leads to a system where the politicians London know what is best for West become ever more distant from the parties Dunbartonshire? It cannot – no more than it and where civil servants and quangocrats can know best for Cornwall, or , or have no reason to take public opinion into Hartlepool. With such increased control over account when making their decisions. their own affairs, Scots would have less to Coupled with the massive government gain by leaving the Union. subsidy which props the Province’s economy Cutting back the role of the central state, and up, this has marginalised individuals and encouraging each locality to take control of individual initiative. its own affairs – and giving individuals the Localism would allow people to express their right, and the resources, to take control of views and take control of their lives as their own affairs in areas such as health and individuals, rather than members of a education – would also resolve the vexed particular religious or economic group. question of subsidy. At the moment, the Elsewhere in the world, cantonised systems English, especially those in the South-East, of government have enabled divided complain that the Barnett Formula redirects communities to live side by side under subtly their tax pounds to Scotland, Wales and differing systems – and there is nowhere in Northern Ireland in unfair quantities. Scots the UK where this would be more counter that money from North Sea oil appropriate than in Northern Ireland. which should belong to them is guzzled by the Treasury in London. Making local The Localist Papers: Open Politics 13

5. Liberate local Yet until that happens, the quality of local government will continue to deteriorate: what government politician of vision and talent will want to There is no point in advocating any kind of work in a post where his hands are tied by the new constitutional arrangements, however, if Treasury? The principle should be that the money stays in the hands of the centre. decisions should be taken as closely as The past few decades, under Tory possible to those they effect, and by governments as well as Labour, have seen individuals who are demonstrably accountable local government stripped of much of its – such as directly elected mayors, one of the power, with the remainder tied to targets and few innovations by this Government that is policies dictated in Whitehall. Advocating warmly welcome. returning these resources to the councils is not practical – that would simply return the From Whitehall to the town hall situation to the bad old days of the 1970s. So, which powers should be devolved to Instead, councils should become genuinely councils? To start with, almost all of the self-financing, but in a way that allows tax functions previously exercised by the Office competition between them, introducing, for of the Deputy Prime Minister, or by the the first time in this country, genuine Scottish Parliament, could and should be pressure on councils to outperform each devolved. No community in the country other in terms of quality of services and agrees with the house-building targets competitiveness of tax rates. imposed from the centre, or with the way in which Whitehall can overturn local planning decisions – yet they are powerless to act. The most grotesque form of this comes from the Most of the reforms which have Pathfinder scheme of bulldozing perfectly adequate housing in the North of England, to been successful in the US feed the boom in the South. recently, from welfare reform to Yet this is just one of many quality-of-life “three strikes and you’re out”, issues over which voters and their elected officials have little to no control: the siting of began life at state level, while the mobile phone masts, the building of incinerators, the frequency of waste collection single most popular reform of the are all local issues controlled from the centre. Thatcher Government, the sale of People feel outraged, not only because of the impact on their communities, but because of council houses, was piloted by their sense of powerlessness. Tory councillors. Or consider the question of social security. At the moment, county councils are obliged to implement welfare policies in which they have had no say: they deliver services, but have no Fiscal autonomy should be accompanied by discretion over who is entitled to them. If careful consideration of which is the they were allowed to distinguish between appropriate level for each power to be deserving and undeserving cases, the impact exercised – and an acceptance that central would soon be felt in policy terms. The sheer government will be blamed when things go size and universality of the welfare system wrong. It will be a courageous politician who leads to unintended consequences, high can stand up in the House of Commons and administrative costs and insensitivity to say: “This is not my problem to solve: it is particular circumstances. Localising this the local councillors who are responsible.” would encourage flexibility, and the 14 The Localist Papers: Open Politics

subsequent pluralism would allow other different view of, for example, a neighbour councils – and, indeed, Westminster – to whom they knew to be claiming disability observe and copy what worked. allowance while working on the side, if they could see a direct connection between his Indeed, pluralism – the ability to trial and behaviour and their tax bill. But new taxes are mimic – is perhaps the single greatest never popular, and new local taxes – as the advantage of devolution. Many of the Poll Tax showed – are politically explosive. If reforms which have been successful in the social security is the “third rail” of American US recently, from welfare reform to “three politics, local government finance reform is strikes and you’re out”, began life at state the British equivalent – hence, perhaps, the level, while the single most popular reform timidity of the Lyons Review of the issue, and of the Thatcher Government, the sale of ’s kicking of its limited council houses, was piloted by Tory proposals into the long grass. councillors. A local sales tax? Taming the Treasury The problem with most mooted forms of The arguments for making councils self- local government tax is that each one would financing are equally compelling. Town halls damage a particular group. Council tax in Britain are uniquely dependent on penalises disproportionately those who own subsidies from central government: of all the houses, but have no income, particularly countries in , only Ireland has a more pensioners. A local income tax would have centralised form of local government the opposite flaw, penalising those in work finance. The vast majority – approximately while leaving a large minority wholly exempt; 90% – of revenue collected in Britain goes to the poll tax weighed especially heavily on the the Chancellor in Whitehall; 75% of the working poor. Under any of these systems, a money spent locally comes from the chunk of the electorate would be encouraged Treasury. There is virtually no link between to vote for higher spending, knowing that taxation, representation and expenditure at they would be unaffected by the local level. consequential tax rises. This has several consequences. First, it Only one form of tax would avoid all these rewards inefficiency: councils that use their problems, being neither discriminatory, resources effectively do not get rewarded opaque nor conducive of profligacy: a Local with more money, while those that spend Sales Tax. The Treasury happens to raise more, get more (rewarding profligate but almost the same amount through VAT as it inefficient left-wing councils, whose voters hands over to local councils in grants. So why become ever more dependent on grants). It not replace VAT with a local tax, set at a local erodes accountability: it is far from clear to level? This would not be an “extra” tax; puzzled voters who is responsible for what, rather, it would replace an existing and highly and who pays for it. Local politicians have unpopular tax. little freedom of action to fix things – with the result that more than 90% of people are Unlike VAT, which is complicated and dissatisfied with the services provided by expensive to administer, the LST would be their local authority. charged just once, at the point of retail. It would be set at the level of a county or Making councils self-financing – allowing for metropolitan authority, to avoid the a national top-up for deprived areas – would distortions that arise from having make them more efficient, more accountable concentrations of shops in small areas. Local and more attractive to qualified candidates. It councils would be free to vary the rate would also, incidentally, have an impact on according to their needs. voters’ attitudes. Voters would take a very The Localist Papers: Open Politics 15

A similar scheme in the US has given rise to something almost unknown in Britain – tax competition, and downward pressure on rates. State governments know that over- taxed shoppers can simply cross the state line, as can whole businesses, sending revenues plunging and leading to electoral disaster. Nor does the greater size of American states make a convincing counter to this argument: Kent, for example, would be the 33rd most populous state in the Union. This system would have several advantages. First, it would be fair: it would affect everyone, because we all buy things. It would match disposable income closely, since richer people tend to spend more, but there would Even Sir Humphrey recognised be few freeloaders voting for higher the power of this idea: his riposte spending. The electorate, in other words, would match the tax base. It would also be to plans for change was a warning easier than ever for voters to see who was that, “Once you create genuinely responsible for charging them what, and to vote accordingly, without councillors democratic local communities, it sheltering behind talk of Standard Spending won’t stop there!” Assessments and ring-fenced grants. And, best of all, it would encourage competing tax jurisdictions. We are in complete agreement. 6. Conclusion This paper has sought to argue that British politics, and the British constitution, are in a mess – but that the solution is within grasp. In essence, it boils down to trusting the people: trusting them to vote wisely, trusting them to manage their own affairs within newly invigorated councils, trusting them to be the rulers, not the ruled. Even our old friend Sir Humphrey recognised the power of this idea: his riposte to plans for change was a warning that, “Once you create genuinely democratic local communities, it won’t stop there!” For once, we are in complete agreement. Democracy in Britain has been undermined by successive governments. Years of centralisation under the Conservatives, and a decade of constitutional vandalism by Tony Blair, have eroded the public’s faith in the ability of democratic politics to make a difference. Fewer people than ever now vote. The political process is increasingly distrusted. direct-democracy.co.uk

What can be done to revive our failing system of “post-representative” democracy? the

It is time for change. Power must be handed away from remote and unaccountable elites down to individuals and communities. The political process must be opened up. This should include:

z A right of initiative so that ordinary voters can help set the political agenda. z Open primaries so that people – not party hierarchies – select candidates for office.

The British constitution also needs to be reformed to ensure that the elected legislature is better able to hold the executive and the permanent civil service to account. This would involve: localist z Abolishing the Crown Prerogative. z Introducing sunset clauses on legislation. z Reforming the upper legislative chamber. z Holding Parliamentary hearings to ratify senior appointments to quangos. z Making judges more accountable for how they interpret the law. z Transferring power from Brussels.

In addition, many of the functions currently carried out by central government could be better carried out locally. Local government should be set free. This would involve:

z Devolving power from Whitehall to the town halls. z Making local government self-financing. papers

Centre for Policy Sudies 57 Tufton Street London SW1P 3QL www.cps.org.uk www.direct-democracy.co.uk 1. Open politics