Political Parties – Public Law & Regulation

In December 2018, the British Army took control over a large area of common land in Cumbria. According to the Financial Times, this was the first ‘enclosure’ of commons in England for more than a century. But it happened a long way from London, where the media were already obsessed with the Brexit-related goings on at Westminster. So it was not widely reported, and left almost no imprint on the national consciousness.

That was a shame. The enclosure of common land was one of the major events of English history, and its recurrence in present-day Cumbria should have triggered deep historical resonances. It went unremarked at the very moment at which, if properly understood, it had the potential to shine a light on an important fact of contemporary British politics.

A conventional explanation for the UK’s current political turbulence, much favoured by political commentators, is that it arises from a clash between two types of democratic ‘method’ – representative democracy (through Parliament) and direct democracy (in the form of referendums). Igor Judge, a former Lord Chief Justice, writing in Prospect, says that the current Brexit impasse is simply the outcome of this conflict – ‘when both systems are employed simultaneously to resolve the same problem, the risk of accident is obvious‘.

On this view, the UK’s current crisis is one of constitutional mechanics. The mistake was for David Cameron to have employed the essentially alien mechanism of a referendum, which sits ill with the British tradition of parliamentary democracy. This led to a grinding of the constitutional gears which can only be resolved either by Parliament reasserting control or via a second referendum. Had Cameron avoided the unnecessary innovation of the first referendum, none of this would have happened.

This would, if correct, be comforting. Mechanical problems can be fixed by technicians. A constitutional problem caused by politicians can also be resolved by them. But in truth, the crisis is deeper, wider and more fundamental. It is a crisis of legitimacy, going at its heart to the question of public trust in the UK’s democratic institutions, and indeed to the matter of their essential trustworthiness. It is here that a very brief history of the English enclosures offers a pointer to the source of the malaise.

Continue reading A Crisis of Legitimacy – Parliamentary Democracy in Historical Perspective

Why does a regulator impose a financial penalty on a regulated body? To punish it? To discourage any repetition of the offending conduct? To deter others from doing the same thing?

The answer, clearly, is all of the above. However, two fines imposed by different regulators on consecutive days in October 2016 tell contrasting stories.

In one case, Ofcom fined Vodafone £4.6 million for failings related to its customer account and complaints handling systems. This is the largest fine it has ever imposed on a telecoms operator, and follows a recent pattern of sectoral regulators handing out record penalties. Some regulators may well be over-using their fining powers (a point to which I will return in a later post), but no-one can say that they are not treating them as a serious part of the regulatory toolkit. Even for a company as large as Vodafone, a fine of £4.6 million, straight off the bottom line, does not pass unnoticed.

By contrast, on the previous day, the UK Electoral Commission, in what, for it, was also the imposition of a record financial penalty, fined the Labour Party the somewhat less substantial sum of £20,000.

Why the disparity, and what does it tell us?

Continue reading What the Ed Stone Tells Us about the Regulation of Political Parties