Declaration vs Implementation: the importance of the ECHR and the Human Rights Act.

21 09 2012

Whilst on the surface it may appear that all laws are created equal there is a great difference in the real effects of law due in part to the separation between the executive, the legislature and the judiciary. These three bodies interact in the application of law. The legislative write the law, the executive (the police) implement it and then the judiciary interpret it.

In a simple example: the introduction of a tax is a legislative function; collecting tax is an executive and administrative function; settling tax disputes is a judicial function, as is judicial review of executive decisions. What this can mean is a strong difference in the the implementation of law (the reality of law) and the declaration of law (the technicality of law).
For example, marijuana might be declaratively illegal (technically, it is illegal to possess/sell/transport and so on). However in reality, the law is not applied this way. Police amnesty and refusal to pursue criminals mean that for the common citizen, possession is unlikely to be punished.

So how does this reflect on Human Rights? The Universal Declaration of Human Rights made bold statements regarding the rights that humans are inherently due and that the committee founded to investigate the issue believed world governments should strive to provide, however in reality the impact of such a declaration is limited by the implementation of that declaration.

The European Convention on Human Rights (ECHR) established a legal body (the self-same court) with powers to enforce human rights transgressions with the weight of international law. The Human Rights Act went further by granting UK courts the power to deal with infractions of the ECHR within the UK legal system. It is these acts which are so very important in legislation. They are, in effect, the difference between talking the talk and walking the walk.

The Evolution of Human Rights

20 09 2012

I think one of the most interesting thing about human rights is how our view of them as a people has evolved over time. Over on our facebook page we are documenting some of the key developments in the history of human rights, but this is only a snapshot of the highlights of a long and worthwhile struggle.

One of the most interesting developments for me is the slow progress from the rights of small interest groups towards universality. How small groups fighting for their own rights became larger groups until now we are humans fighting for the rights of all humanity.
From the rights of barons over the King to the rights of Englishmen, to the rights of Man and the Citizen, to the rights of women, civil rights and LBGT rights. The Universal Declaration of Human rights came after the deaths of millions across two world wars, but even those deaths pale to the millions more who came before fighting for a similar cause, just in a smaller theatre.

The history of political and philosophical thought on human rights is a long and worthy tradition that I will seek to share and document to show how our struggle now in the UK is one more step in the journey of millions to fight for and secure their rights.

I think it is all too easy to see the battle for the Human Rights Act as just more politics being played as a game in Westminster, forgetting the underlying history of the movement, but it is much more than that.  What we have here in the UK is just our small piece of a larger construct of liberty built over hundreds of years by thousands of hands.  I for one am not going to take a step backward.

#FPTP has no place in a representative democracy

19 01 2011

Assuming that the wrangling in the House of Lords doesn’t derail the legislation, this year may see one of the most significant reforms to our electoral system since universal suffrage was granted (fully) in 1928.  Ultimately the long history of political reform in this country (and elsewhere) has been driven by two fundamental urges- towards greater accountability of the executive (and thus a balance of power in government) and towards greater representation.

In 1928 the franchise was finally extended to all adults over 21 regardless of property ownership, qualification, gender, religion etc.  In 1969 the voting age was changed to 18, further extending the franchise.  I make the case that the drive for this was the urge for more representative government.  If more people are entitled to vote, parties seeking election must appeal to a wider audience to get their vote, the resulting government is then more representative.

One cannot fault governments of the past for not predicting the flaws of first past the post (FPTP).  Whilst it’s true that other voting systems were proposed throughout the 19th Century (if not earlier), the weaknesses of FPTP were not then apparent.  Equally, other voting methods were “untested” and thus unreliable.

Maurice Duverger (a French poltician & sociologist) observed in several papers in the 1950s and 60s that a system such as FPTP (known as a “plurality voting system”) tends to favour a two-party system.  That is to say, FPTP encourages a polarisation of the body politic, both in the minds of the people and the institutions of government.  This principle is referred to as “Duverger’s Law.”  In short:

i) smaller parties are unlikely to win, so voters desert them for larger parties
ii) parties with similar agendas split the vote, meaning neither get elected, this encourages parties to merge into larger parties

These two elements tend, over time, to a firmly entrenched two party system.  I contend that two party systems are, by nature, neither representative nor beneficial for their country.  The reason for this is simple- if there are only two options, neither has to be truly good to be chosen, only better than the alternative.  In effect, a two party system is a duopoly of government, and just as bad as any duopoly would be for consumers in the open market.  As for being representative, on the contrary a two party system means that you’re either “in” or you’re “out.”  As such:

i) supporters of the losing party are highly unlikely to have their views represented in government
ii) people whose views are not represented by either party are not represented in government (discouraging voter turnout)

Duverger himself argued that this was not a certainty (we here in the UK have bucked the trend), but merely that FPTP would both “act to delay the emergence of a new political force, and … accelerate the elimination of a weakening force.”  It has certainly done so, with coalitions, inherently representing a greater diversity of views, coming in to existence less than a handful of times in our history.

What’s worse is that this tendency towards polarisation is not the only downside to FPTP: the methodology of FPTP means that any votes for losing parties are discounted, resulting in millions of votes making no difference to the results of elections in “safe seats.”  As it is, the elections are decided by the minority of voters living in marginal constituencies.  This means that the potential governments are fighting to represent the views of these “marginal” voters and not of the electorate as a whole.  This map, based on 2005 electoral data, shows seats that haven’t changed hands for 40 years.

What’s more, the “winner takes all” methodology of FPTP, combined with ever-decreasing turnout means that MPs can be elected with only a fraction of the electorate supporting them.  Only three MPs elected in 2005 secured the votes of more than 40% of their constituents.  George Galloway polled the votes of only 18.4% of his constituents, yet ended up in the House of Commons!

Safe seats such as this reduce accountability of MPs to their constituents- as with monopolistic businesses, these MPs do not have to offer anything resembling a high quality service to continue in post- they are the only option.

So, in summary, first past the post is not fit for purpose as the electoral system of a representative democracy.  It discourages pluralism, restricting voter choice, it discounts the votes of millions of eligible citizens because they live in safe seats and weights unfairly votes from marginal constituencies.

As I said in my introduction, I strongly believe that electoral reform has always been driven towards greater representation of the people by their government.  It’s clear that first past the post only discourages representation.  For the same reasons we needed universal suffrage, we can’t have FPTP.  Democracy means power comes from the people- their views have to be taken into account.  Ours is a representative democracy, so let’s make it representative.