Category Archives: British Politics

The SC, politicians and the media

16th February 2017
The Financial Times reported how Lord Neuberger’s wife’s Tweets were scrutinised to pick up any pro-EU bias, and how Iain Duncan Smith (Brexiteer) called for ‘parliamentary hearings to examine the views of Supreme Court justice nominees — as is the practice in the US, where potential justices, who have extensive powers to overturn legislation, face Senate hearings.’
Neuberger’s reply to that was that it would be “very unfortunate if we had political scrutiny of the appointment of judges in this country…  First of all, I wonder what would be asked of the judge and what would the benefit would be...  If you are a decent judge your political views will be put on one side when you go into court.” He said he was “not really clear” what the political views of many of his colleagues on the Supreme Court were, calling this “one of the nice things about my job”.
Neuberger also said that the media’s coverage of the SC hearing was, in general, all right, but that Brexiteers had ‘made heroes’ of the three dissenting judges, and that the social media threats and attacks on Gina Miller were “very worrying”.
Neuberger and a colleague are about to retire; there will be three vacancies to the SC (another retired in the summer).  Brenda Hale is likely to be next president; she said that she feels, as the only woman, that she sticks out “like a bad tooth”.  Neuberger is actively trying to get a more socially/ ethnically diverse range of applicants.  They will be appointed by an independent commission (separate from the JAC, but, of course, the JAC has already appointed those applicants to the judiciary in the first place.
The judiciary are aware of their possible background bias; they are also intensely aware and protective of judicial independence – the main reason why politicians gnash their teeth, as they know they’ll have no sway.  Judges uphold the rule of law, and that’s that.
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Brexit. An only partially biased guide.

The Referendum
To make things scrupulously fair (lorks, what an idea), the Electoral Commission recommended the question: 

‘Should the United Kingdom remain a member of the European Union 
or leave the European Union?’

A few referendum facts:
•    23rd June 2016; campaign period was launched in February 2016
•    72% turnout
•    51.9% Leave (17,410,742); 48.1% Remain (16,141,241) – a difference of 1,269,501 people (there are currently over 9,000,000 pensioners in Britain)
•    Scotland, Northern Ireland and Gibraltar voted to remain (62%, 55.8%; 95.9%:  about 75,7174 people – as far as I can work out)
•    73% young people voted Remain; 60% OAPs voted Leave; 64% turnout, under 35s; 90% turnout over 65s
•    Campaign funds were limited to £7,000,000 each (yes, really), but it’s thought that a) the sum of both sides’ campaigns came to about £28,000,000 (ouch) and Leave got £4,000,000 more than Remain (largely from Tory donors)  (double ouch)
•    The referendum – its post, copies, officials etc. – cost about £142.4,000,000 (mega ouch).

There is an excellent BBC web page here with lots of lovely pictures (I love you, Auntie, for your maps and infographics; I will always pay my TV licence, even though I don’t have a TV).

The legend that the Brexit Referendum was born from a desire to keep the Tory right sweet has a lot of truth in it (and notice how vocal Bill Cash has become again.  He has got a second wind the force of a gale).  David ‘Flim-Flam’ Cameron tried to get a bill passed to ensure a referendum, but it was thrown out; the referendum had, however, crept into the Tory manifesto.  Flim-Flam tried to renegotiate the UK’s EU deal, but got nowhere, and the referendum was announced.  Parliament passed the European Union Referendum Act in 2015, giving authority for an advisory referendum.

Notes.
1)    the referendum was always only advisory.  At no point does Parliament legally have to accept it, despite ‘the British people’ having ‘spoken’.
2)    The wording of the referendum was amazingly neutral – compare the Scottish independence referendum:  ‘Should Scotland be an independent country?’  That had a massive turnout – 84.6%:  2,001,926 (55.3%) No and 1,617,989 (44.7%) Yes.  Despite the question.  The importance of wording questions is brilliantly summed up here.

Two interesting maps to compare.

First, the general election results of 2015
Blue = Conservative;  Red = Labour;  Orange = LibDem;  Green = Green in England or Plaid Cymru in Wales;  Northern Ireland – dunno.

Secondly, the EU Referendum
Blue = Leave;  Yellow = Remain;  Grey = Tie

The areas which were the highest Brexit voters were in the North, Midlands and East.  The surprise to most political commentators was the Labour heartlands in the North, which all voted Leave.  But, given the socio-economic situation of the North, it’s not surprising that they voted as they did.  The south-east of Lincolnshire was also heavily Brexit:  towns and villages there have changed immeasurably with the influx of Eastern Europeans to do badly paid, back-breaking agricultural and fishing work that the British won’t touch any more because it’s easier getting benefits.


The outcomes of the Referendum.
Economics
The economic consequences are hard to predict, but most organisations predicted doom and gloom before the Referendum, and a lot are predicting further doom and gloom now.  Sterling has fallen and companies are looking at least to have European bases, if not to move to the Continent entirely.  Employers in certain sectors fear a skills and labour shortage, although this may only be short/ medium-term.  The economic outcome will depend on what sort of Brexit we get.

Politics and the Law
The Labour Party is riven:  despite a three-line whip on the Brexit vote in the Commons, four Labour front-benchers voted against, and, consequently, quitted the front bench.  The Tory right is driving for ‘hard’ Brexit, to be outside the Common Market.

The government declared that it would trigger Article 50 (the get-out clause) using a prerogative power.  Gina Miller et al. brought a court case against the Secretary of State for Exiting the EU (why not ‘leaving?  What is the matter with our language, these days?  Does nobody think English can be beautiful any more?  Must it be in the hands of the barely literate and, even worse, the Americans?), arguing that this did not fall within a prerogative power, but had to be accomplished by Act of Parliament.  The High Court, and subsequently the Supreme Court, agreed.

The case is a really interesting one, and rather contentious.  It hinges on two things:  1) whether the government can use prerogative powers to diminish people’s rights and freedoms, and 2) whether leaving the EU is affected by, and affects, statute law, specifically the European Communities Act 1972.  (I love law.)

The judgment was thus:
1)    The ECA ceded law-making powers to the EU, such that EU law = UK law; only Parliament has the power to cede law-making powers, or to take back those powers.
2)    Rights will be diminished, therefore the government needs permission
3)    Although ministers are allowed under the ECA to exercise treaty powers (making and breaking treaties), withdrawal from the EU will change a source of UK law, and therefore the ultimate source of UK law (Parliament) needs to give permission.
4)    The ECA does not give explicit consent for ministers to withdraw from the EU
5)    Subsequent laws seem to have worked on the assumption that Parliament’s consent is needed to withdraw

The three dissenting judges argued that the ECA is a separate thing from Article 50, and therefore does not affect the government’s prerogative powers.
I both agree and disagree with the SC justices.  One law academic has written that whilst the judges upheld Miller et al.’s claim that triggering Article 50 would lead to a loss of rights and therefore the royal prerogative could not be used, there are cases where it has.  One fairly recent one was the disgraceful treatment of the Chagos islanders by the UK government in order to suck up to the Americans.  This was arguably foreign affairs, and so different from the domestic affairs that the ECA governs – and Sir Edward Coke in 1610 wrote that the monarch ‘cannot change any part of the common law or statute law, or the customs of the realm’.  Coke, like Dicey (also quoted in the case), is a constitutional legal text.  In addition, the 1689 Bill of Rights says that the monarch cannot suspend Acts of Parliament.  But The ECA is not necessarily suspended by a prerogative triggering Article 50.  If Parliament had the intention that the ECA couldn’t be undone by prerogative, then it cannot be – and that’s one of their lordships’ points:  there’s no explicit permission.  But equally, there’s no explicit forbiddance.  I think we’re on thin ice here. 

But I agree with the SC justices because had they found in favour of the government, this could have set an unwelcome precedent – of strengthening royal prerogative.  One of the judgments quoted was Lord Browne-Wilkinson’s, in R. v. …Fire Brigades Union (1995)

‘The constitutional history of this country is the history of the prerogative powers of the Crown being made subject to the overriding powers of the democratically elected legislature as the sovereign body.’

This case followed that principle.  I do not think that their lordships were right about the legal nitty-gritty of the case itself, but I do think that they were right to defend the underlying principles behind it.  I’m afraid that if this doesn’t make sense, you’ll have to read some sound, but long, law blogs, the summary of the SC judgment, and the ECA.
•    David Feldman:  Brexit, the royal prerogative and parliamentary sovereignty
•    Mark Elliot:  Brexit:  why Article 50 does not need Parliament
•    The ECA

Gina Miller’s excellent New Statesman article sums up her principles.  She puts forth the further point that populism is a potential problem – implying that the referendum is a product of populism.  Clem Atlee indeed said, ‘I could not consent to the introduction into our national life of a device so alien to all our traditions as the referendum, which has only too often been the instrument of Nazism and fascism.’  This is why the government’s repeated bleating that ‘the British people have spoken’ is – I think – a) disingenuous, and b) dangerous.

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That ECHR not in full…

The Human Rights Act, 1998, is:
An Act to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights; to make provision with respect to holders of certain judicial offices who become judges of the European Court of Human Rights; and for connected purposes.

The European Convention on Human Rights was drawn up by lawyers such as David Maxwell Fyfe after the Second World War. The HRA is the ECHR (without a couple of Articles which are already covered by British law/ convention), and very briefly is:

PART I The Convention Rights and Freedoms
Article 2 Right to life
Article 3 Prohibition of torture
Article 4 Prohibition of slavery and forced labour
Article 5 Right to liberty and security
Article 6 Right to a fair trial
Article 7 No punishment without law
Article 8 Right to respect for private and family life
Article 9 Freedom of thought, conscience and religion
Article 10 Freedom of expression
Article 11 Freedom of assembly and association
Article 12 Right to marry
Article 14 Prohibition of discrimination
Article 16 Restrictions on political activity of aliens
Article 17 Prohibition of abuse of rights
Part II The First Protocol
Article 1 Protection of property
Article 2 Right to education
Article 3 Right to free elections
Part III The 13th Protocol
Abolition of the death penalty
This is all pretty reasonable, and, one would think, uncontroversial.  But not according to Theresa May.
See the Grauniad’s wonderful video spoof on this.

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Judiciary – some examples

HM Treasury v Ahmed, 2009

This concerned the freezing of assets of suspected terrorists.  The government had passed a Terrorism Order in 2006, allowing the Treasury to freeze assets.  This was in order to comply with a UN rule, but it was a law made by Order in Council, i.e. by the Privy Council and without any sort of Parliamentary involvement.  The Supreme Court ruled that the Order permitted HM Treasury to act ultra vires (beyond its power), and that this Order called into question the relationship between the executive and Parliament.  The SC also said that

“Even in the face of the threat of international terrorism, the safety of the people is not the supreme law. We must be just as careful to guard against unrestrained encroachments on personal liberty.”

The government subsequently passed the (temporary) Terrorist Asset-Freezing Act (2010) to make it all legal.  This shows that the SC, through the judicial review, can put pressure on the government to alter legislation.

Al Rawi, 2010

This concerned former Guantamo detainees.  The SC ruled that courts cannot order a ‘closed material procedure’:  the principle that each party, and lawyers, must see or hear all evidence and arguments presented to court is paramount.

Cadder v HM Advocate, 2010

This concerned legal procedure in Scotland.  The SC ruled that detainees must be given a lawyer (in Scotland, they’re called advocates) before they give any statements to the police – statements which would be used in court.  A law was subsequently passed allowing police to detain people for 12 hours instead of 6 (this would give more time to secure a lawyer).  This case shows not only the SC upholding civil liberties, but causing legislative change, too.

The Belmarsh Case, 2001

The Anti-terrorism, Crime and Security Act 2001 was a knee-jerk reaction to 9/11.  It allowed the detention without trial of terrorist suspects.  The House of Lords (for this was before the SC was born) ruled that this was contrary to the ECHR/ HRA:  no one, British or foreign, could be denied the right to a fair trial.  The Lord Chief Justice at the time was the legendary Tom Bingham, one of the great judges of the 20th century.

The Dangerous Dogs Act, 1991

This badly-drafted piece of legislation (another knee-jerk response) outlawed certain ‘types’ of dog.  The Act received a hammering in the courts in defining ‘type’, amongst other things.  The courts were the first body able to scrutinise this law properly, as it had been rushed through Parliament.

Sentencing: the government has tried to control sentencing, but failed; the 2003 Criminal Justice Act allows judges to set their own minimum terms.  Recently there have been new guidelines for magistrates on tougher sentencing.

Access to justice:  the Grayling reforms have introduced court fees and cut legal aid.  This means that seeking redress either in the criminal or in the civil courts is now quite expensive.  In 2104, the criminal bar went on strike over the reduction of legal aid, and now many employment lawyers are seeing their practices dwindle.

ASBOsBBC article here.

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This is great. Read it. Lord Phillips’ lecture on Judicial Independence

Lord Phillips was the first President of the Supreme Court. He retired in 2012, succeeded by Lord Neuberger.  He delivered this lecture to UCL in 2011. You can read the whole of it here, but below is a précis.

‘The rule of law is the bedrock of a democratic society… If the rule of law is to be upheld, it is essential that there should be an independent judiciary. The rule of law requires that the courts have jurisdiction to scrutinise the actions of government to ensure they are lawful. In modern society the individual citizen is subject to controls imposed by the executive in respect of almost every aspect of life. The authority to impose most of those controls comes, directly or indirectly, from the legislature. The citizen must be able to challenge the legitimacy of executive action before an independent judiciary. Because it is the executive that exercises the power of the State and because it is the executive, in one form or another, that is the most frequent litigator in the courts, it is from executive pressure or influence that judges require particularly to be protected.’

He quotes principles for judicial independence as formulated in the Latimer House Guidelines (Commonwealth, 2003):

‘We believe in the liberty of the individual under the law, in equal rights for all citizens.’

This means that there should be an ‘appropriate, independent process for judicial appointments’, guaranteeing ‘the quality and independence of mind of those appointed.’

The Lord Chancellor, being a member simultaneously of executive, legislature and judiciary, had obvious conflicts of interest. Phillips says that the LC never was ‘influenced by political considerations in his appointments’, but because it was a rather nebulous process, that couldn’t be clear. So the JAC was set up. LC still has to approve their recommendations (and can veto them), but works well in ensuring independence. SC appointments are made by an ad hoc commission of senior judges.

The job description/ person specification for SC judges is on p.6 of his talk.

The new appointments system hasn’t so far done much to change the white-middle-class-male-ness of the senior judiciary, but this will necessarily take time.

Salaries: these need to be independently set as well. They were intended to be, but the Treasury said ‘no’. The Treasury also wanted the SC to be paid for primarily from court fees – but this would make justice only accessible to the wealthy. In return for getting Treasury money, the chief executive (the civil servant in charge of the court) had to find massive savings.

JR

50% cases are to do with public law (i.e. involve JR). ‘This makes it even more important that the Supreme Court really is independent of Her Majesty’s Government. These cases involve challenges to the legality of executive action.’

Previous to the HRA, ‘courts were reluctant to interfere with executive action.’ They based decisions on the Wednesbury principle: was the decision of administrators reasonable? The HRA means that judges now have to consider whether decisions/ actions comply with the ECHR/ HRA. This is part – but only part – of the reason for the increase in the number of JR cases. The other two reasons are 1) ‘the increased complexity of modern society which brings with it an increasing amount of executive control over the activities of the citizen.’ 2) ‘a growing recognition by the citizen and by public interest bodies of the possibilities of challenging such action.’

During the Belmarsh case, the Home Secretary (Charles Clarke) said that judges were keener on a criminal’s human rights than the good of society at large. Phillips says that this was a total misunderstanding of the judges’ position: Clarke wanted to pick judges’ brains about how to deal with ’the terrorist problem’, but this would have ‘infringed the principle of the separation of powers’.

Lord [Michael] Howard [another ex-Home Secretary] said:

“The power of the judges, as opposed to the power of elected politicians, has increased, is increasing and ought to be diminished. More and more decisions are being made by unelected, unaccountable judges, instead of accountable, elected Members of Parliament who have to answer to the electorate for what has happened”.

Lord Phillips said, ‘These statements evidence a failure to understand the role of the judiciary. When we review administrative action we do not substitute our decisions for those of the executive. We check that the executive has acted in accordance with the law, as laid down by Parliament.’

Ken Clarke said that JR grew more than he imagined, but we shouldn’t try to reverse it, as it is the law.

Accountability

The right of appeal means that courts are accountable.

The Constitutional Reform Act set up a ‘complex’ disciplinary scheme for sacking judges (for misconduct). This involves the LC and the LCJ, and Phillips thinks it works: ‘judges cannot be accused of looking after their own, and yet judicial independence is preserved.’

‘But some make the point… that judges are unelected and yet take it upon themselves to overrule the elected government.’ Some think we should have a SC more like America’s, but Phillips disagrees – for it leads exactly to the politicisation of the judiciary that we need to avoid.

Phillips thinks the filming of court proceedings is a good idea.

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The HRA, ECHR etc.

The HRA (1998) (/ ECHR (1951)) is not without controversy. Its ultimate court is the European Court of Human Rights, and this is perhaps a challenge to British sovereignty. The ECtHR (like the EU’s ECJ) can fine the government if it finds against it, but it cannot throw out or change UK law. For example, despite the ECtHR’s ruling in 2005 that a prisoner should have the right to vote, the government has not, nor intends to, changed the law: prisoners still have no right to vote.  (Bela pointed this out:  what if the UK doesn’t comply? How is it made to?  Well, it’s not.  It can be fined.  And that’s it.)  The ECHR is not EU, so the HRA won’t technically be affected by Brexit (it has only just occurred to me; I’d been conflating it for ages, but it’s a different fish.  Sorry about that.), but Brexit could be an excuse to get rid of ECHR/ HRA.

Until the Human Rights Act, the only court that people could take human rights cases to was the ECtHR, and so the HRA has actually brought human rights jurisdiction back to Britain – complaints could be heard by British judges, rather than going straight to the ECtHR.  It was the highest British court, then the House of Lords, which ruled that Article 2 of the ECHR/ HRA meant that inquests had to be more wide-ranging; this allowed, for example, the opening of a fresh inquest into the Hillsborough disaster, which has found the police guilty of unlawful killing.  This case did not go outside the UK:  in the past it would have done.

The Home Secretary announced her desire to take the UK out of the ECHR (as opposed to the EU, to which she is, apparently, committed).  She said that it ‘can bind the hands of Parliament, adds nothing to our prosperity, makes us less secure by preventing the deportation of dangerous foreign nationals’.  She was referring, no doubt, to Abu Qatada, who for years fought deportation to Jordan on terrorism charges, on the grounds that he would be tortured once on Jordanian soil.  The government is big on national security and would like more powers (for example, the ‘Snooper’s Charter’); this necessarily has implications for individual liberty, and will bring the government into conflict with the HRA.  In this way, the HRA could be seen as a matter of controversy between right- and left-wings of political view:  human rights being quite left and security being right.
There has been controversy regarding the freedom of the press and other media.  The high-profile case brought by Max Mosley resulted in the fining of the News of the World and many squawks from the media about being stifled.  However, the super-injunction is much more stifling of press freedom:  the injunction is legal instrument dating way back, but the super-injunction seems to be a post HRA thing.
The HRA has given the judiciary more bite. The number of judicial reviews has increased manifold (this is where the government’s execution of laws is questioned).  JRs often find against the government, which is why the government wants to curb them.  Ken Clarke warned that judges are becoming more politicised.  In Chris Grayling’s 2013 proposals for reform, he said “the use of judicial review has expanded massively in recent years and it is open to abuse”.  He criticised the “the inappropriate use of judicial review as a campaign tactic”, although he failed to back this statement up with an adequate claim.  (As a history graduate from Cambridge, he should be thoroughly ashamed of his paper.  It’s flim-flam.)  The Criminal Justice and Courts Act (2015) has limited JR to individuals/ groups with a financial interest in the case – to stop the alleged ‘campaign tactic’ element.

It perhaps should be said that politicians’ claims that judges are political is a) disingenuous and b) spurious:  the only political principle that every judge really, truly believes in is the rule of law:  as Lord Phillips said (see forthcoming precis of, or read in full, his excellent lecture), ‘The rule of law is the bedrock of a democratic society.’

If you read the HRA, it hardly seems controversial.  It enshrines basic human rights, many of which are found elsewhere in UK legislation (writ of habeas corpus, 1689 Bill of Rights, 1970s Sex Discrimination and Race Relations Acts, e.g.).  Here’s a video about its uncontroversiality.

There’s a good article here, but it’s out-of-date: Neuberger is president of the SC and Gove is Justice Minister.

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Elections

There are lots of different electoral systems.  You don’t have to know their workings intimately, but you do have to know that they work somehow…

First Past the Post
The traditional winner-takes-all method.  This means that a candidate can win by having a relative majority (plurality) – i.e. more than anyone else – even if it is not an overall majority (over 50%).  In Britain, constituencies elect MPs by this method.  One MP represents the constituency; the government is made up of the party with the most MPs (or a coalition if those numbers do not reach 326 MPs).  FPTP is said to promote a strong and stable government.  (It also promotes adversarial politics.)  Constituency boundaries matter in a FPTP system:  votes can swing the result, so you can ‘pack’ constituencies with the right kind of voter by making sure the boundaries include them.

Advantages

  • Strong and stable government (= will enjoy majority  on issues in Parliament; will face no challenge to authority during parliamentary term)
  • Clear winner with overall majority in Commons
  • Winner has clear mandate
  • If it ain’t broke, don’t fix it – FPTP works reasonably well
  • easy to understand and relatively cheap and quick

Disadvantages

  • Favours big parties (over 500 seats are either Labour or Tory)
  • Favours parties with concentrated supports
  • Creates ‘safe seats’, which can contribute to a democratic deficit and alienation of the electorate
  • Safe seats also waste votes (marginal seats become battlegrounds; campaigns focus on swing voters)
  • Smaller parties find it difficult to win seats
  • Means that a party is voted for rather than an individual
  • Out-of-step with Europe
  • Works fine in two-party system, but less good in a multi-party system
  • Plurality, rather than majority, may contribute to democratic deficit
  • Turn-out has been low, showing lack of confidence in the system
  • 2015, number of spoilt ballot papers went from 199 to 299 in Brighton
Tactical voting: Hove 2015 – many people voted Labour in order to prevent a Tory majority, even if they would normally vote Green or Lib Dem.

AV (Alternative Vote)
2 votes
If 1st choice gains absolute majority, (s)he is elected.  If no-one gains a majority, the candidate with the fewest votes is eliminated and the second votes are counted.  This continues until there is a majority.

Pros

  • More proportional
  • Fewer wasted votes
  • Retains MP-constituency link
  • Requires absolute majority, therefore more legitimate
  • Produces coalitions
  • Less chance for extremist parties to develop
 Cons
  • Complex
  • Produces coalitions
  • Lacked popularity in the 2011 referendum
  • First votes are wasted
  • Doesn’t really help small parties

AMS (Additional Member System)

A FPTP vote for a constituency MP and an additional list-system vote for a regional MP. The Scottish Parliament and Welsh Assembly are elected using the AMS (70%:30%).

A list system can be closed or open.  A closed system = voting for party; open list = voting for candidate.

Pros:
More proportional
Large parties will dominate less
Smaller parties therefore will be better represented (and need smaller adjustments in counting)
Retains contact between constituents and individual MPs
Lessens democratic deficit – participation/ alienation etc.
Can produce coalitions

Cons:
Still FPTP.
Closed list system gives a lot of power to parties.
Could create two-tier MPs.
Confusing.
Wasted votes.
Can produce coalitions
Can give more power to extremist parties

STV (Single Transferable Vote)

Here’s a video because this is too much to explain.

Pros

  • More candidates can be chosen, therefore choice
  • Smaller parties can be better represented
  • Coalition

Cons

  • Whose votes count as surplus?
  • Coalition
  • Complicated
  • Donkey voting – numbering candidates by their list numbers

How has AMS affected party representation in the UK?
Hasn’t contributed to the increasing representation of smaller parties.  The WA is dominated by Labour and the SP by the SNP; other parties are Cons, Lib Dems and Plaid Cymru.  Constituency MPs are still elected by FPTP; the regional members are in theory more representative across parties, but in effect they have been dominated by the main parties.  The closed list system gives more power to parties, and therefore it encourages MPs to act according to party lines rather than for their constituents.

Should PR be introduced for H of C?
Yes: FPTP unrepresentative; smaller parties; wasted votes; doesn’t prevent coalition therefore main coalition argument against PR is rubbish.  Need consensus politics rather than adversarial?  Restore faith in politics; democratic deficit blah blah blah.  Plurality doesn’t promote legitimacy; majority would be better. Undermines traditional two party system

No:  expensive, complicated, could produce unstable government; No to AV referendum shows little appetite for electoral reform; could allow extremist parties into Parliament.  If it ain’t broke, don’t fix it.

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