2016 minus 15: yeah but no but yeah but no

Posted: 17 December 2015 in 2016minus, politics
Tags: , , ,

I’ve mentioned before that I’m unsure when admitting an issue was complex became bad. Certainly, the older I get the less I find I’m certain about things, particularly political issues. Yes, I’ve some issues where I think there’s a definite ‘right’ and a definite ‘wrong’, but far fewer than you might think. 

The recent Syria vote was a good example. I made it plain here and elsewhere that I was not convinced by the government’s case, as I saw it. That said, I never received security briefings, and I’m far from an expert in Syria, the warring sides or what is best. I’d have voted against not because I’m against bombing per se, nor inherently against military action in all circumstances but just because I wasn’t convinced military action was the right thing in this case and at this time. However, I’m not about to criticise those MPs who did receive security briefings, who do know more than I do, in reaching a decision different from mine.

Here are a couple of other things that have come up in the last week or so that I think have good arguments on either side of the divide and yet none of them convince me conclusively.

MPs under arrest should not be named in Commons, says committee
Basically, at the moment, MPs are treated differently to members of the public when it comes to being arrested. OK, in case you weren’t aware, there’s a very big difference in law, whether you’re in the UK or otherwise, between being arrested and being charged. Here’s a good explanation of the difference in the UK from the ever good UK Criminal Law Blog. However, whereas only sometimes are members of the public named on being arrested, MPs are always named on the Parliamentary daily order paper. Now, one might suggest that fair enough, if the MPs are suspected of doing something serious enough to warrant arrest, everyone – including their constituents – have a right to know. I’ve some sympathy with that view. 

Certainly, if they’ve done something – no, let’s be careful now, budgie – if they’re suspected of doing something serious enough in connection with their parliamentary duties that warrants arrest, such an arrest should be publicised. And indeed, the Commons committee says that should remain unaltered. It’s if they’re arrested in connection with something outside their parliamentary duties that the committee recommends a change. And I’m genuinely unsure where I stand on this one.

As I said above, I’ve some sympathy with the view that if an MP is arrested, their constituents have a right to know. However, on the other side of the argument is the case that an arrest isn’t proof of guilt. It isn’t any indication of guilt. No more than – in the US – an arrest or even indictment means they’re guilty. (As Alistair Cooke never tired of pointing out, there’s an astonishing number of people who believe that indictment means someone was found guilty. It means nothing of the sort.) Any person who has been arrested and then released with no further enquirers hasn’t ‘got away with it’, and more than when a person is charged and then, later, the charges are dropped. There’s nothing to get away with at that point.

(Sidebar: a lawyer pointed something out to me a while back, something about which I’d never truly carefully thought. To be gulty of something is not the same as having done it. And no, I’m not talking about being found guilty though that plays some part of it. Take murder. Most people would fairly accurately define it as the unlawful killing of someone. The important part there is unlawful. Guilt in law is perforce legal liability. If somoene has never been charged with unlawfully killing someone then they did not murder them. If someone was found not guilty of murder, then they did not murder them. They may well have killed them. In fact, that may not be in doubt. But legal liability is only tested in court.)

So, yeah, I’m genuinely unsure what my position is on this. I can see strong arguments on both sides but none that convince me.

House of Lords and the vetoing of secondary legislation 
No, it’s not as boring as it sounds, I promise. We have a mainly toothless second chamber. Which is, I suppose, just about slightly better than the Socttish Parliament and Welsh Assembly who mange quite well without a second chamber at all. But – and one can argue the merits of this till the cows come home – the House of Lords has had its power to reject legislation passed in the House of Commons severely curtailed over the past century or so. Putting it simply, the Lords cannot completely reject primary legislation (the Comons can use the provisions of the Parliament Acts to force it through, though they rarely do so, the Lords usually bows in the end), cannot reject ‘money bills’ such as budgets at all, and by convention does not reject measures in the manifesto upon which the government took office. They can, and sometimes do, reject what is called secondary legislation, which is passed through the House of Commons with less debate and obviously less scrutiny; the deal is that the House of Lords, being a revising chamber, is supposed to give it that which the Commons doesn’t. And since there’s less scrutiny, they can reject it absolutely. 

Well, they can at the moment. 

Y’see, what happened recently was the Chancellor tried to get his tax credit cuts through with as little scrutiny as possible, hence why they were presented to the House of Commons as secondary legislation. Had they been primary legislation, the House of Lords would have had a problem rejecting them. But they weren’t. And the Lords did. And governments as a rule never like having their legislation rejected by the Lords. But instead of going “damn, we should have…”, Cameron ordered a review of the House of Lords’ powers and now that review has reporters, recommending that the House of Lords can still reject secondary legislation but only once; if the commons votes again on the legislation and passes it… the Lords have to acquiesce and similarly pass it. 

And at this stage, I find myself impersonating Vicky Pollard from Little Britain: yeah but no but yeah but no but yeah but no but…

As a general rule of thumb, I think the Commons has a right to have their expressed view prevail. They are the elected chamber, for all their faults (and there are a lot of them, many of them elected). And, like it or dislike it, the Parliament Acts and the Salisbury Convention do restrict the Lords’ powers on primary legislation. It does seem on first glance that it’s an anomaly that they can prevent secondary legislation, especially when it’s the expressed will of the Commons. But then there’s the argument above: if the government want something, especially something contentious, then for fuck’s sake, do it via primary legislation. The government already has the Parliament Acts as a back up to ram it through if they need it. (I said earlier that they rarely need to; the only relatively recent examples were  The War Crimes Act 1991, The European Parliamentary Elections Act 1999, The Sexual Offences (Amendment) Act 2000 and The Hunting Act 2004.)

(Amusingly, because of the Lords’ rejection of the tax credits cut and the threat of rescuing the Lords’ powers, I’ve seen many left-wingers supporting the Lords on this occasions, and many right-wingers saying their powers need to be reformed. As a commentator said, this isn’t as ludicrous as it at first sounds: you can loathe a system and want it reformed/abolished, yet still want it to act in the best interests of the country while it’s there. But the reversal of the normal positions is, as I say, amusing.)

So, yeah. No. I’m not sure. Good arguments on both sides, but I’m not yet convinced. More information on all of the above is in the links; I encourage you to click them and read.

But then hell, I encourage everyone to read more anyway.

Something more definitive tomorrow, before on Saturday the penultimate Saturday Smile of this run.

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