Parliamentary Government matters. Jack Straw's right.

[matgb]

Jack Straw has decided not to appeal a decision and instead the Cabinet has voted, using the power allowed it by law the law, to prevent the release of documents, for the first time since the FOI Act was passed. Y'know what? I disagree with Jennie and most Lib Dems on this. He's right to do so. We can, and should, be attacking this, but not because Cabinet minutes aren't going to be released. Cabinet minutes should not be released, it's one of the basic principles of our Parliamentary democracy. Here's how it's supposed to work:

• The House of Commons is elected as a representative cross section of British interests and opinions
• A Cabinet is formed representing the views of enough members of the House to command a majority
• Appointments are made based on support within the house and talent
  
• The Cabinet discusses all major aspects of policy and agrees major decisions
• The Cabinet is bound by Collective Responsibility and do not disagree in public
• Ministers that cannot agree to a decision at all should resign
• If the Cabinet no longer commands the support of the House, then the government should fall

In order for this system of government to work correctly, ministers have to be able to have free, open and frank discussions within Cabinet. If after discussion is over they come to a decision that a minister personally dislikes, the minister chooses whether this is a resigning issue or not. Robin Cook chose to resign before the Iraq War started. Clare Short was given assurances by the PM and had those assurances broken, so resigned after the war.  That's the way it's supposed to work. That the Government didn't fall is not the fault of the Cabinet/Parliamentary system of government.

The problem lies not with the way this individual decision was made. The problem lies with the corrupted system that our Parliamentary democracy has become.  This is the way it actually works:

• The House of Commons is elected using a gerrymandered system created in 1947 that encourages:
• an unrepresentative House with a two-party duopoly
• A predominance of white middle class men in suits
• Safe seats allocated by party fiat in which the rebellious are penalised
• Party loyalty over individual thinking
• A Cabinet is formed by the party leader, made up mostly of his/her friends or political allies
• Appointments are made based on presentational ability and sucking up
• The Prime Minister makes most major decisions and reveals them to Cabinet
  
• Groupthink is both likely and encouraged
• Discussion and debate is discouraged
• Ministers who disagree with the PM are aware that challenging is a threat to their career
• Super majorities from one party mean the Majority is rarely threatened

If a precedent is set for Cabinet minutes to be revealed during a period in office, then full and frank discussion within Cabinet is threatened. That it currently doesn't happen enough is part of the problem. If we are to retain the good aspects of the British system of Goverment, we need to get rid of the corruption and the parts that aren't working. Not attack the chances of the bits that sometimes do from happening.

British politics has allowed, over the last 60 years, to become increasingly corrupt and partisan. This is a fault of the electoral system, and specifically the introduction of uniform single member constituencies and the abolition of alternative voting methods made by the Representation of the Peoples Act 1948. We need to remake and revitalise the Parliamentary system of government. For that to happen, we also need to examine how and why the Cabinet system works.

If it's decided that the Cabinet should have disagreements in public, that Collective Responsibility can be abolished, etc, then so be it. I can see arguments favouring that, especially in the new information age.

But to call for the abolishing of a fundamental feature of the British system, that has been working effectively for over 300 years, over a single, specific issue in which an abominable decision was made, is to throw out the baby with the rather murky bathwater.

Parliament voted for the Iraq war. The nation almost certainly opposed it. That is the real problem. In defending the principles of our democracy, for once in his life, Jack Straw is right.

And if you think I liked typing that last sentence you really don't know me.

Comments

[miss-s-b.livejournal.com]

And just because the letter of this particular legislation is being followed does NOT mean that this is respect for the rule of law.

[andrewducker]

I'm still not at all sure what your differentiation between "law" and "legislation" is.

[miss-s-b.livejournal.com]

The Rule of Law is a specific legal concept. Look it up on wikipedia. I am busy being shouted at by Mat about this.

[tyrell.livejournal.com]

Heh. You have the best arguments in your house.

[miss-s-b.livejournal.com]

For a given definition of best. It illustrates to me how I will never make it in politics, though. If all it takes to shut me up is my own fiance screaming BUT THIS IS FUNDAMENTAL!!! at me, what chance have I got in the testosterone-fuelled bearpit that is parliament?

[tyrell.livejournal.com]

Yeah, but he's wrong.

(Actually, he isn't. But I want him to be. And I think this case is important enough to break the rule.)

[andrewhickey.livejournal.com]

Problem is, you're both right. What you've got is a conflict between two 'fundamental' principles - the confidentiality of Cabinet discussion and the rule of law. It's something that simply couldn't be resolved in a principled way...

[caramel-betty.livejournal.com]

It's not really the Rule of Law though. Between Parliamentary supremacy and Parliament supposedly acting as a safeguard for fundamental liberties, you have the Diceyan, British view of the Rule of Law more or less finished. Everyone is subject to the law, but this law has safeguards allowing certain things not to be disclosed.

Now, Parliament may be acting as the best safeguard for our ancient and traditional liberties in a general sense, but in the case of the Freedom of Information Act, it's hard to argue that the veto is undermining the rule of law.

On a simple level, we don't have a fundamental right to see Cabinet discussions (until the relevant time limits have passed, etc.). If that is a fundamental right, we've been denied it for ever.

If the argument is that the FoIA is being applied unequally (so not everyone is being subjected to it in the same way), that's built into the Act anyway. It only applies to the public sector in the first place - but the Rule of Law is not being subverted by the private sector being left out, surely? Lots of acts do this, creating obligations and offences that only apply to certain people in certain circumstances. See also the Human Rights Act 1998, which only has direct vertical effect i.e. against the State/emanations of the state (although because the courts are covered, it's potentially creating indirect horizontal effect).

If the argument is that the Executive get their discussions treated differently than other people, then first we have to remember that it's the Cabinet, not the Executive. (The Cabinet is a tiny portion of the Executive.) Then we can look at the fact that, for example, the Bill of Rights 1689 exempts Parliamentary discussions from being questioned by the court (and Pepper v Hart 1993 creates a tiny exemption to examine, not question), and the legislature generally enjoys certain privileges not accessible to the common man. (The most obvious problem this creates is that your MP can't libel you on the floor of the House.) Yet having these discussions privileged in this way doesn't undermine the Rule of Law.

Then we already allow that certain things can be secret - e.g. under the Official Secrets Act - because of public policy concerns.

And if we really are concerned about the Rule of Law, s.35(1)(b) specifically excludes "Ministerial communications" which, in particular, includes "proceedings of the Cabinet or of any committee of the Cabinet" (s.35(5)). So Parliament already said that this information shouldn't be published. So wouldn't we be undermining Parliament?

Hmm. Undermining Parliamentary statute - erm, isn't that a breach of the Rule of Law?

[caramel-betty.livejournal.com]

Now, Parliament may be acting

... may NOT be ...

[matgb]

s.35(1)(b) specifically excludes "Ministerial communications"

Is that of FOI or OSA? I've lost track.

If it's of FOI, then how has this all come up in the first place?

[tiredstars.livejournal.com]

From Jack Straw's statement:

The Government recognises that Parliament has not made section 35 an absolute exemption; it has released Cabinet documents other than minutes under Freedom of Information in the past. Every case must be assessed on its own merits, but I share the belief that there is a strong public interest in maintaining the efficacy of British constitutional arrangements.

So it seems there are exceptions to the exemption, though I don't see in the FoI act where this is specified. (I can't see that s35(4) on public interest applies here.)

[caramel-betty.livejournal.com]

s(2), FoIA 2000. (http://www.statutelaw.gov.uk/content.aspx?LegType=All+Legislation&title=freedom+of+information&Year=2000&searchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment=0&sortAlpha=0&TYPE=QS&PageNumber=1&NavFrom=0&parentActiveTextDocId=1876329&ActiveTextDocId=1876335&filesize=4435) Most of the exemptions in Part II of the Act can be overridden by the public interest test, although there are still several sections that are absolutely exempt.

This still feeds in to the point about the Rule of Law, though. Parliament has already recognized that there may be circumstances in which the public interest (as determined by the courts/tribunal/ICO) may need additional balancing factors. In particular, I can't see the High Court wanting to get its hands dirty with the realities of politics. In that sense, the veto allows political concerns to be handled alongside legal ones.

That's not to say that this was a good thing for the Act to say - and nor is this sentence saying that it was a bad thing for it to say. But the point is that the Rule of Law in the UK is tightly interwoven with Parliamentary supremacy and sovereignty, and this is what Parliament voted for - a political check on a legal process.