I have been discussing the evidence that Democratic Audit should give to the committee with our core team of Stuart Wilks-Heeg, our director, David Beetham and Andrew Blick. We have decided unanimously that the use of referendums is likely to do far more damage than good and would ultimately give yet more power to central government and corporate interests, both of which are already too powerful.

Our view is that referendums are neither sound nor appropriate instruments of governance and decision making in a nation like the UK that does not possess a written constitution. Other countries that regularly use referendums do so within the context of a fully-codified constitution that defines their place and role. To import them into British politics without this framework would be yet another example of the piecemeal change that has left us with a confused and unresolved constitutional mess. More to the point, they would be open to abuse.

I appreciate that there are attractions in the way referendums are used abroad – but there are also drawbacks. In California, for example, the experience of referendums tends to show the power of a) money and b) intense rather than weak interests. Both, incidentally, were on display in the recent Greater Manchester referendum vote against a congestion charge, given that opinion polls had shown a narrow but consistent majority in favour.

There is a place for citizen initiatives, of course, but they should be developed as a means for putting issues on the parliamentary agenda rather than bypassing it. More accessible and effective arrangements for petitioning parliament and other representative bodies would be preferable to advancing the place of referendums in our governing arrangements. We need a clear distinction between what is a proper subject for the people to decide in a representative democracy, and what for parliament, and work to preserve the integrity of both.

All this does leave us with a dilemma. Governments can decide upon referendums as and when they see fit and they are increasingly used to settle constitutional or, at least, territorial issues. And in principle, it is right that constitutional issues should be settled by the people in a referendum rather than by a single parliament, especially one led by a single party in power. So their use has a certain, if spurious, legitimacy in such cases.

These cases are piling up for the near future. Gordon Brown has committed Labour to a referendum giving people a choice between the existing electoral system for elections to parliament and the alternative vote – but ruling out proportional systems. The Conservatives are committed to a bill requiring referendums on European matters and possibly local referendums on council tax changes. There is also talk of Conservative moves to reduce the number of seats in the House of Commons. And finally, there is the immense issue of reform of the House of Lords.

All these potential decisions raise profound democratic issues and illustrate starkly the partisan and opportunist motives that lurk behind the grand sentiments that party leaders espouse. They ought all to be governed by clear procedural rules, to be preceded by deliberative public participation, and, certainly, not to be determined by an unrepresentative single party government that may wish to use them to accomplish partisan objectives.

So, reluctantly, I have come to the conclusion that it should be the norm that constitutional issues require the consent of the people through a referendum.

At the very least, reformers should make two demands. First, the inefficient arrangements for voting registration should be drastically reformed so that the electoral roll does not exclude significant minorities. Second, we should urge the committee to propose a new convention laying out clear rules that the House of Lords, curiously often the last refuge for constitutional propriety, should take it upon itself to act as a watchdog against abuses.

Overall, we should not allow debates about uses of referendums to obscure the point about their necessity in the context of a written constitution that recognises the ultimate sovereignty of the people.

This does not mean that we should not pursue whatever democratic changes in our political arrangements are possible this side of a written constitution. In particular, we need to concentrate on strengthening parliament against the executive – not on encouraging popular-sounding initiatives that will only undermine its diminished authority still further.

However, the prospect of achieving a written constitution looks more remote than ever, given the way that the major parties together block crucial constitutional issues and prevent them reaching the political agenda. It seems we will continue to be one of only two countries in the world without one.

This is where our pamphlet comes in. We thought it was time to write down or ‘codify’ not what should happen to make our system democratic, but what happens in practice; and to do so from the standpoint of the governing elite that exercises power on our behalf but would prefer that its operation be mystified as much as possible. They recognise how important it is that such a document should never see the light of day.

The constitution begins by extolling the virtues of being unwritten:

It is a collection of laws, fictions, powers left over from the old monarchy and powers that we make up as we go along. It allows us to decide what governments can do; and best of all, only we have the power to change it … The great advantage of this flexibility is that once we have hit on a new way of behaving, it becomes part of the constitution. And we can modernise easily. So we have moved on from old-fashioned cabinet government to sofa government by the prime minister with trusted allies and special advisors. Presidential, yes, but faster and more efficient. This excellent state of affairs allows us to exercise executive power more or less as we please while the whole world admires us as a democracy.

There then follows a list of the ‘unspoken articles’ of what Jack Straw has termed our ‘executive democracy’. We understand that Sir Humphrey and his colleagues have chuckled particularly loudly at the following articles:

Government, like every subject, shall be free to do whatever is not unlawful. The government shall decide what is unlawful.

The government shall have the power to enact ministerial edicts, known as statutory instruments or Orders in Council, this secondary legislation being in effect law-making that can almost wholly escape parliamentary scrutiny and debate.

In the event of controversy over government actions, the government may have recourse to carefully chosen judges or former civil servants to hold an inquiry that has due respect for government’s need for support and discretion. The government shall set the terms of reference for any inquiry, have powers to suspend it or restrict public access to it, and may censor an inquiry report to prevent any information emerging which we say may harm state economic and security interests.

Civil servants … shall be allowed to enhance generous pensions by taking advantage of their departmental experience and contacts through lucrative appointments in relevant private companies.

We hope you will read the whole document with similar amusement. But we expect that it will also make you angry that this is the way we are governed in the 21st century.

We like to think that it makes an irresistible case for a written constitution, rooted in sound democratic principles and in popular sovereignty; but we would urge proponents of the status quo to come forward and make their case for its defence, on democratic, or indeed any other, grounds.

Of course, debate is not enough in itself, and particularly not if it is limited to converts to the cause. Some matters are simply too urgent to be left until the glorious day when our written constitution is unveiled. At the same time, voters need to be offered more than a Hobson’s choice at the 2010 election between political parties making rival claims about which areas of government spending they will cut.

The issues of how power is exercised, by whom and in whose interests, must be forced to the fore of the election debate. Over the next six months, the Power 2010 initiative will seek to bring these issues back onto the political agenda. It is a good job somebody is – the party conference season confirmed that it would be foolhardy to leave it to our political masters.

Download a copy of the pamphlet here

But of what, and for what, exactly? While the anger over MPs’ expenses may prove a catalyst for meaningful reform of parliament, it may well also be an expression of an ugly anti-politics phenomenon. As such, it would require more wide-ranging reforms from the political class to satisfy what increasingly looks like a deep-seated anger that will not easily be placated by minor adjustments.

For now, though, it would be wise not to assume that there is a genuine golden opportunity for any kind of major breakthrough, and especially not on the two huge and intertwined defects at the heart of our obsolete democracy: an electoral system that is utterly unrepresentative and usually gives the biggest party an unearned working majority in the House of Commons; and an overweeningly powerful executive that the House of Commons in turn cannot hold to account. The configuration of politics is such that a Conservative victory is likely at a general election next year; and David Cameron has already made it abundantly clear that electoral reform is not on his agenda any more than he is about to give away executive power.

Major surges

There are currently two major surges going on. First, there is a centre-left campaign being led by the Electoral Reform Society and Compass to press voting reform on the government, with a demand for a referendum at the next general election. While campaigning for reform – and specifically for proportional representation – is valuable in itself and hopefully will pay off in the long run, in the short term it faces almost insuperable odds.

The other is the Real Change initiative, attempting to take forward the spirit and energy of the Convention on Modern Liberty, about which I wrote in my last Red Pepper column (Apr/May 2009), with an ‘open politics network’. The intention is to inspire people at large to meet, self-organise and take reforms to parliamentary candidates standing at the general election, with some kind of report-back mechanism in place after a year or so of the next parliament. The big point that Anthony Barnett, Helena Kennedy and the other organisers (I will be part of this initiative) make is that this is a unique moment. Barnett says: ‘Previous campaigns about the lamentable way we are governed were wake-up calls. Now people are awake but don’t know what to do.’

What surprises me is that there is apparently no left initiative specifically for reform of parliament (though the Real Change process may produce demands for parliamentary change). Yet here the door is open, or half open, to changes that may well command popular support. Let me tick off the openings that exist at national and parliamentary level through which well-led campaigns from below, building upon what popular demand exists, may be able to succeed:

Gordon Brown is committed to parliamentary reforms as part of his political ‘rescue’ act during the next session. It is always dodgy saying that he will actually do something, but the chances must be that he will since reform has long been a part of his agenda for government

Tony Wright MP is to chair an all-party committee on parliamentary reforms. Wright, chair of the public administration select committee (PASC), has been probably the most effective parliamentarian of the Labour years. He is both committed and knowledgeable when it comes to democratic and parliamentary reform. It was his committee, for example, that drew up the unanswerable indictment of royal prerogative powers – one of the mainstays of executive dominance – that has led the government to tentative reform. All reformers should focus on strengthening the work of this new committee, though of course it may not happen or may prove powerless. But it gives us an opportunity.

A draft constitutional renewal bill is already in existence and will be brought forward in the next session. It avowedly intends to create a more equal balance of power between the executive and parliament, but falls far short of this. For example, it recognises the case for giving parliament and the public the final say on going to war, but finally still leaves too much discretion with the executive.

Yet the structures are there for more thoroughgoing reform, especially if Wright’s committee comes up with the goods. And as the Democratic Audit pamphlet Beating the Retreat showed, there is a prospect of cross-party support for going further. Brown is presumably following a two-part strategy. First, alongside the ‘Building Britain’s Future’ attempt to regain Labour’s working class constituency, he is seeking to restore public faith in his leadership by demonstrating his ability to clean up and reform parliament in ways that add weight to its role.

But he has also to regain the diminishing support of the centre-left and liberal intelligentsia. To do so he will have to retreat on the inroads his and Blair’s administrations have made on civil liberties and begin to demolish the database state. His reform plans will have to have genuine substance to work – for there is an informed public here who know when they are being cheated, and the general public are not likely to be satisfied with a superficial response.

People may be too deep in revulsion about the shabby expenses scams to be moved by proposals for wider parliamentary reform, but the political class is sufficiently alarmed about the state of opinion to wish to placate the public.
Finally, Cameron will give nothing away if he can get away with it. He has been very lucky that he and his party have escaped almost unscathed from the expenses scandal, even though he has personally been very greedy in his own demands upon the public purse, subsidising his ownership of a splendid country residence. Of course, his footwork has been near immaculate. He has given just one opening on parliamentary reform – by venturing that he would consider installing fixed-term parliaments, with the clever caveat that this near universal democratic practice is hedged about with problems. He needs to be pushed on this and on reform proposals.

In other words, there are real prospects for advance on parliamentary reform that ‘we’ – democrats, socialists, greens and so on – should not allow to escape. But what should be ‘our’ agenda?

Reform agendas

There are potentially three or four agendas in the public arena. The first is that of the ‘modernisers’ who would drastically reduce the size of the House of Commons. Bad idea. Then there is John Bercow. A possibly lively irrelevance, though if he can secure the House’s control of its agenda and end the dominance of the whips (and behind them, the party leaders) over the choice of select committee chairs it would be a notable victory. The most substantial agenda on offer is that which would seek to make parliament more effective – to redress the imbalance between the executive and parliament so that MPs can make a better fist of holding the executive to account and scrutinising government policies and actions.

The fourth is not, as such, on offer, but it is one in which the pluralist left should take the lead. It is a participatory agenda – an agenda that would open up the legislative and scrutiny work of the House of Commons to the deliberative participation of the public and give people opportunities to propose or improve policies and laws and to hold MPs more clearly to account. There is clearly an overlap between these two agendas that ought to strengthen both.

There is already a lobby of sorts behind proposals for a more effective parliament, involving, for example, the long-established constitutional research and educational body, the Hansard Society, and the newer Constitution Unit at University College, London, as well as Compass and Democratic Audit, outside parliament; and within parliament the Parliament First Group, a loosely-knit group of reform-minded MPs such as Mark Fisher and a more informal cross-party group of peers and MPs who sat on the joint committee that examined the draft constitutional renewal bill. Their aims and ambitions are mixed, but it is possible to identify a set of proposals that should carry them along.

The first aim must be the abolition of the royal prerogative that gives the executive powers to act without informing or consulting parliament. The prerogative confers on ministers an uncounted range of powers at the moment, from the conduct of a government’s foreign and EU policy (including war, treaty-making and the UK’s role in major global institutions) to the prime minister’s vast powers of patronage.

Even the government has recognised that such powers have no place in a modern democracy, but its grudging moves towards reform have been partial. All these powers should be put on a statutory footing so that parliament can have a say in the conduct of government.

Second, of course, must be the long-delayed reform of the House of Lords, to create a smaller and properly resourced second chamber of legislators elected by an open proportional representation system (not list PR).

Third, every MP and official I have spoken to recognises that select committees, the main instruments of scrutiny in the House of Commons, simply do not have the resources or time to do their job properly.

There are exceptions, like PASC, but even Wright’s committee can’t take on all it would wish. Give them full research resources, powers to subpoena ministers and officials, adequate time and the resources to present their reports, more powers to oblige government to respond; and take the whips off their backs. Notwithstanding the expenses saga, we get parliamentary democracy on the cheap.

Fourth, this switch would require more MPs to put in time on committees. As it stands, it is hard for committee chairs to muster sufficient members to keep their committees quorate, and especially to hold meetings during the long recesses.

There has to be a paradigm shift in the work and attitude of MPs that would make the House a modern committee-driven chamber and bring to an end the pernicious ‘case-work’ ethos that does more to shore up MPs’ incumbency than to bring real redress to their constituents. Let’s have a full-time salaried service for people who require legal aid and advice and simple good counsel and free MPs to do their real work, keeping the executive in check and representing their constituencies.

There are other reforms that would make parliament more effective and open to the public: give MPs control of their own agenda; introduce fixed-term parliaments; make the choice of prime minister and ministers parliamentary business, not a ritual at Buckingham Palace; insist that government initiatives are announced first in parliament, not the media; give parliament its own legal counsel; make pre-legislative scrutiny of draft bills the norm; give MPs more space to introduce their own bills; strengthen the role of the all-committee liaison committee; and introduce soft mandating for the government’s negotiations in the EU and international forums such as the IMF.

The dominance of neoliberal ideology in the international institutions of economic governance and global financial and corporate sectors represents a major force that not only created the conditions that made the credit crunch possible, but also contributes to the hollowing out of the public sphere and privatisation of public functions and services in the UK. Soft mandating would give MPs and peers the opportunity to open up to public gaze the largely secret processes and negotiations through which the UK works in the international sphere as well as giving ministers public guidance on the policies they should pursue.

Above all, MPs must become a bloody sight more self-confident and less self-important.

Direct democracy

There is, of course, a rich, though incomplete, tradition in various forms of direct, participatory and deliberative democracy, mostly to be found outside the UK and mostly at local and regional level. There are plenty of examples: citizens juries around western Europe; the wide use of referendums and propositions; the civic forum in Scotland; participative budgeting in Porto Alegra, and less convincingly in English local authorities; town meetings in the US; deliberative assemblies in Canada to advise on electoral reform. In both South Africa and Zimbabwe, there was countrywide consultation on the constitutions in both countries, adopted in South Africa, rejected by Mugabe in Zimbabwe. Two referendums established electoral reform in New Zealand.
There is, however, very little practice that makes national parliaments open to popular participation to assist us in thinking through how we could make the UK parliament itself not only more representative but also more participatory. Of course, there are pointers and mechanisms in local and regional practice that could shape our thinking about how to bring people into parliament and give them a constitutional claim on the time of their MP. There are also warnings: participation in practice too often reduces to participation of the ‘haves’ and not the ‘have-nots’, though again there are mechanisms that are designed to ensure equity.

It should be easy (although I am not a techie) to introduce deliberative citizen involvement in the scrutiny work of pre-legislative and select committees; to introduce a petitioning process that, as in Scotland, is designed to encourage and build in citizen initiatives rather than to inhibit them as at Westminster, with proper controls in both cases to make the process equal; to introduce mandatory annual meetings between MPs and constituents, including a report-back session, that give the local public opportunities to make recommendations for the future; and possibly to introduce recall powers turning on the MP’s election manifesto.

The majority and minority parties in parliament could be required to hold day-long deliberative meetings around the country. Freedom of information laws could be widened to ensure that all lobbying contacts with government were on the public record. The second chamber could be re-constituted to exclude all special interests. Parliamentarians could be required to use the common language of the people.

I appreciate that some of my concerns and proposals actually are techie stuff. But I feel strongly that local campaigning has to have reform at national level, and particularly of parliament, as one of its focuses, for in the end parliament shapes and decides upon all our democratic and social futures.
There are opportunities now that will not last long. The British constitution is designed to withstand popular pressures, and parliament itself is ‘the rock’ behind which the political class hides and re-groups. I think we would all be failing if we did not try, at this juncture of public anger and concern, to educate ourselves and them about the choices they may wish to make to establish more popular government through a reformed parliament. I will try to set up a Real Change group in my home town.

Stuart Weir is associate director of Democratic Audit and a consultant on democracy assessment to International IDEA (Institute for Democracy and Electoral Assistance)

We? Who are ‘we’? Well, though it was civil liberties or (as I would prefer it) human rights that brought everyone together, and not just in London, we were a diverse crowd in composition and experience. We were lovers of rock, football and the countryside, we were Tories, lefties, liberals, anarchists. Above all, many of us were young; and we were all fed up with the cumulative loss of liberties and the intrusions on our privacy, identities and lives by an overbearing state. This was far from the usual ‘we’ of political and pressure group life.

We plainly did not all agree, and we have different priorities. But the great majority of us were united around the urgent need to gain and regain liberties, to re-take our identities and to work for a constitutional settlement that can protect them. One of the main purposes of the convention was to bring together the organisations that argue and campaign for liberties, human rights and democracy and to strengthen them: first, creating an atmosphere of change within which they could work more confidently; and second, enabling them to recruit new people.
The huge surge of energy the convention inspired cannot be switched off. That would be a betrayal of all those who came and said, ‘What next?’ There must be a ‘next’, a wider and widening popular movement, or ambience, or current – call it what you will – in actions, argument, local and national events, the media, the blogosphere, wherever, that can continue to unite as many people as possible. If you like, we should seek to create a new zeitgeist – or even hopefully, to take advantage of a zeitgeist that is already emerging.

Existing organisations would benefit, but we ought not to conceive of it in terms of simply channelling all the energy into their campaigning activities. Not all of us are joiners. Not all of us share their particular priorities. Many of us want something new, or to make a new way forward. Alliances are already being made, as Red Pepper knows well, for it is at the centre of a new initiative on the police.*

The organisers of the convention, most notably Anthony Barnett, Henry Porter and Phil Booth, the organisations that participated and the bodies that provided funds, must come together to create collaborative working arrangements that will build on what has been achieved. I don’t know quite how this movement, for want of a better word, could be organised, or even what its activities might be. But clearly there are immediate tasks through which they can begin devising a long-term process. It could, for example work immediately to stop clause 152 of the Coroners and Justice Bill that will enable ministers and state officials to evade all limits on their use of private information within the database state.

Possibly the greatest obstacle to making common cause with existing human rights organisations lies in differing attitudes to the Human Rights Act. Plainly, the act has failed to restrain this authoritarian government’s assault on human rights, except at the margins, largely for systemic reasons (as I argued in my last column). But it is doing much to protect the rights and dignity of many of vulnerable groups, as the British Institute of Human Rights continually reminds us.

It is, if you like, a ‘battered shield’. But it would be foolish to cast it aside at this juncture, when civil liberties and human rights, need all the protection they can get. Those who blame the act for the losses we have sustained since it was introduced need to identify the real villains and structural weaknesses – most notably the over-mighty state and its dominance over parliament – rather than seek an easy scapegoat in ways that may strengthen the enemies of the principle of universal human rights in both main political parties. This is a principle that we all need to hang on to for dear life.

It is a principle that the act embodies. There is already vigorous debate about its future and dubious proposals for a ‘British’ bill of rights that will not be embedded and may not be universal. But we cannot argue for it, as we should, in a spirit of denial. We should argue back vigorously and freely, but taking care to respect what the act stands for and its potential.

Well, we did not get a bill of rights. Instead, Labour introduced the Human Rights Act 1998, incorporating the European Convention into British law. But after ten years, the act itself is under political siege and the erosion of freedoms is intensifying. The root cause of the act’s failure is that it and other constitutional measures were simply added to existing structures of political power that left the dominance of the executive essentially unchanged. Further, the law may have changed, but our political and judicial culture did not.

We live under a determined state that is pursuing two dynamic courses to erode liberty. First, and most obviously, the government uses the fear of terrorism, organised crime, extremism and anti-social behaviour to justify severe new measures that remove and restrict civil and political rights. Second, and more insidiously, the government is creating almost out of sight a ‘transformative state’ built around a huge database – and it is doing so for ‘our own good’! The ID card scheme is only the tip of this bureaucratic iceberg. Long ago the idea that our homes were ‘castles’ became obsolete; very soon we will be unable even to protect our privacy and identities from a central state database of personal information on everyone for use by officialdom at all levels.

Parliament has largely been powerless. The House of Commons failed even to vote down the proposal to hold terrorist suspects for up to 42 days without charge. It was left to the unelected second chamber to hold the line. The creation of the database state continues with little or no parliamentary scrutiny.

The judiciary is failing too. Even the apparently landmark rulings on detention without trial have failed in practice to end the protracted incarceration of terrorist suspects, and court rulings on control orders have in effect legitimised house arrest in this country.

Yet our culture of liberty is still lively. What is needed is to engage it. That is the purpose of the Convention on Modern Liberty that is being held in London on 28 February and in linked national and regional meetings around the country. The Guardian, openDemocracy and Liberty are organising the convention at the head of a loose coalition of other organisations, including No2ID, Democratic Audit and Unlock Democracy. The idea is to bring together everyone who has concerns about the state of liberty in the UK to share and debate information and analysis. There is a remarkably wide range of speakers in the plenary and panel debates and people are expected to listen and participate in a respectful spirit, whatever their current views and without any expectation of their agreement.

But it is also intended that the convention will act as a catalyst for an informed and wide-ranging movement of resistance to the encroachments on rights and liberty that links the quite disparate issues and strengthens existing organisations such as Liberty, No2ID and Unlock Democracy. Just how any such coalition of the willing is to be assembled and sustained has yet to be resolved. One key issue will be not only to protect the Human Rights Act but to campaign to strengthen it, perhaps in the form at last of a bill of rights.

As the British Institute for Human Rights has shown, the act may not have worked on its own to protect major civil and political rights and due process at a national level, but it does make a positive difference to people’s everyday lives. Unfortunately that modest but real success has been drowned out by the tabloid campaign of denigration that Jack Straw, the architect of the act, has contrived to endorse. The act has also, of course, provoked rage and exasperation among both cabinet ministers and Conservative opposition spokesmen over its success in protecting terrorist suspects from being returned to countries where they would almost certainly be tortured or killed – which is why its future is in danger.

But while the act itself does not command popular support, the rights and freedoms that it protects do. It is therefore likely that a campaign to save and strengthen it will gain popular support if it concentrates on those rights and freedoms and argues further for, say, its extension to protect trial by jury and social and economic rights. At the same time it is vital to find a way of making people aware of the dangers of the database state, perhaps by arguing that we own our identities, not the state.

The Convention on Modern Liberty is taking place in London and across the UK on 28 February.

Porter is bewildered, as his recent submission of evidence to the parliamentary joint committee on human rights (JCHR) shows. His account of the losses we are sustaining is shocking in its detail – but that’s not what he’s bewildered about. What astonishes him is that there has been scarcely any parliamentary or public resistance to a draconian trend that in the 1980s would have had people protesting in the streets. (There is, of course, a lot of resistance but it is fragmented and barely visible.) Clearly Henry Porter feels he is on his own.

Porter partly identifies the root of the problem – executive dominance over parliament – and analyses why there has been so little parliamentary and public concern. He also finds scapegoats – the human rights committee itself (too calm), parliament, the media and, astonishingly, the Human Rights Act (HRA).

‘The truth is that we may have taken a false sense of security from the presence of the HRA on the statute book,’ he writes. ‘Indeed, there seems every reason to suspect that the act has served the executive and civil service as an alibi while the balance between state power and individual freedom has been critically altered in the state’s favour.’ Porter says the HRA ‘has allowed the executive and civil service to roll back individual choice, liberty and privacy and has done almost nothing to defend the British public from the accumulation of centralised power’.

This is an odd and potentially damaging notion. The act has done nothing. It is failings elsewhere that the government is exploiting. What has let us all down, as Porter also says, is the absence of coherent analysis, scrutiny or opposition in parliament, of debate about the direction of our society, and of understanding and exposition in the media. I think he is unjust to the JCHR: the committee has published accurate analysis of the odious counterterrorism laws, and much good work elsewhere – using the HRA, incidentally, as its yardstick. Parliament has raised its game, but MPs too often pass the buck to the House of Lords. Porter thinks the judges have performed well, but Keith Ewing’s lectures at the Institute for Advanced Legal Studies make remorseless criticisms of their weakness.

That said, it is true that we have all underestimated the growth of the database state, a phenomenon that is hidden behind the debate on ID cards and disguised by the way in which inroads on our privacy and the right to ‘respect for private and family life, home and correspondence’, as set out in article eight of the HRA, have been accumulating piecemeal. Behind ID cards lurks the national identity register, which will require 49 pieces of information covering important transactions in our lives, and behind that lurk plans for a ‘transformational state’, centralising and sharing the information the authorities hold on us. In other words, an almighty surveillance structure is envisaged, through which the man in charge, Sir David Varney, admits that the state will know ‘a deep truth about the citizen based on their behaviour, experience, beliefs, needs or desires’.

Porter also tells of a new proposal to collect 19 pieces of information, including mobile phone and credit card numbers, from people travelling abroad. The government plans to use them to ‘fight terrorism and international crime’, and for ‘general public policy purposes’ – mass surveillance.

A broad-based convention on liberty and human rights is being organised in November at the Logan Hall in London to try to piece together all the urgent issues that confront us, arouse and inform public opinion and help to unify and spread the many sources of resistance (see opendemocracy.net/ourkingdom for details). I believe that those of us who care about civil liberties and human rights must frame a concerted response to the losses we are suffering from both the counterterrorism laws and the less obvious dangers inherent in ID cards and the database state. This should be the main task.

I also believe that the HRA should be strengthened to encompass ancient protections, such as trial by jury, and new elements such as economic, social and cultural rights. At the same time, its crucial balancing act, embedding the protection of human rights and liberties in a partnership between parliament and the courts, is a vital democratic solution to the age-old problem of relying on unelected judges to protect them. In the end that is our job, as citizens.

It seemed that the BNP had everything going for it. It was exploiting the pumped-up fear of extremist violence and Islamophobia, aided by the media obsession with immigration and migration. The sudden media pre- occupation with the anniversary of Enoch Powell’s notorious ‘rivers of blood’ speech could hardly have been better timed. The party’s claim to have taken over Labour’s traditional role as the defender of the working class has had a great deal of resonance and could have put it in a strong position to take advantage of Labour’s collapse.

There are two obvious reasons for its comparative eclipse. The first and most obvious is that Cameron’s Tories swamped the BNP as they did Labour. But the second is that the anti-fascist magazine Searchlight and the trade unions combined in vigorous community- based campaigns against it, involving literally thousands of activists across the country. Nick Lowles, of Searchlight, says, ‘We have never had so many people involved in the anti-BNP campaign before. Against the odds, both political and climatic, decent people took to the streets and campaigned strongly for “hope not hate”.’

It is great to have something we can celebrate and I think we should. But most of these ‘decent’ people were from the left and we need to build stronger defences against the BNP across the board. Far from being down and out, the BNP is now a well- organised modern party and next year it will be seeking seats in several regions in the Euro elections, where low polls will assist it.

Combating the BNP involves an adjustment in the way we regard and describe the party, along with a surer and wider approach in society and in local government.

First, natural though it is to loathe the BNP, too often the left discourse sounds like an echo of the hate the BNP exploits. This is especially harmful when angry or violent expression spills over onto the people who vote for it. ‘Decent people’ can and do vote for the BNP, often with some shame, true, but defiantly nonetheless. It is not a protest vote, but a demand to be heard.

So tear off the party’s veil of respectability. Expose and broadcast the vile things that its members say and do. Keep watch on the performance of its councillors, show up their incompetence, deride the irrelevance of their statements and policies, complain to the local government Standards Board.

On the wider front, it is important to encourage people to take a robust approach to combating the BNP, especially in local government where councillors and staff often feel inhibited, either by fears that attacking the party gives it the ‘oxygen of publicity’, or that exposing the myths it propagates as lies will somehow breach electoral law. In the last election, a council official rang me and said that the other party leaders wanted to make common cause against the BNP offensive, but feared to draw attention to it.

Councils across the country have a duty to promote good race relations and social cohesion: combating the BNP’s lies simply fulfils this duty (on this point, see the Cohesion Matters website at www.cohesionmatters.co.uk).

Even in the Labour Party, I have experienced a reluctance to take on the far right. The most extreme example of this came some years ago when I was one of three people standing for election in Hackney. The agent (a man with real anti-fascist credibility) ordered us not to take part in a debate with the National Front candidate, Derek Day, a violent thug and prominent racist, on the estate where he lived and not to canvas the estate. The agent even came to the meeting to order us out. We stayed, trounced Day in the debate and won over people on the estate as we canvassed. In the pub one evening, my colleague’s handbag hit the table with a big thud. She was carrying a hammer, ‘just in case’.

I don’t advise carrying a hammer. But it is vital not to compromise or be intimidated. Resolute, informed, principled and persuasive argument is the way to combat the BNP.

People were adamant that parliament as a whole – not the prime minister, his ministers and cronies – should decide international policies. There was a huge majority against arms sales to countries that violate human rights; another wanted the UK to press hard within the EU for trading practices that are fairer to developing countries. Two thirds wanted Britain to be more independent of the US, even if that meant being critical in public.

What’s happened in that year to meet what people want? Not much. Gordon Brown is essentially following the policies of his predecessor. So the UK continues to be actively engaged in the occupation of Iraq, colludes in Bush’s unwavering support for Israel and fails with EU allies to create a new approach to Iran. And while the government refuses to withdraw from Iraq and hold an inquiry, there is no prospect of regaining respect and influence for good in the global South.

It is vital that the royal prerogative, which gives Brown and his ministers the power to act independently of parliament, is reformed so that the people’s representatives in parliament can share fully in making foreign policies on war, treaties, development aid and trade, and so begin the process of making Britain’s role in world affairs subject to popular opinion. But MPs are as much responsible for the undemocratic nature of foreign policy as governments. They are rarely prepared to challenge government, do not demand the resources they would need to do so, and fail even to devote to the task the two under-used resources that they possess – namely, themselves and their time.

We have been working at Democratic Audit to analyse parliament’s failure to exert oversight or influence. We found that MPs are too ready to accept that they are incapable of influencing policy on major issues or even keeping the broad sweep of policy under scrutiny. We also found that the idea that they are good at the detail of policy and can have influence at this level is illusory.
In the last parliamentary session, the military high command and a growing majority of the public wanted the government to withdraw from Iraq, but still some 90 British troops there and in Afghanistan were killed and about 120 injured. The government agreed the new EU reform treaty while contemptuously refusing to engage in any dialogue with parliament about its objectives or negotiating position. The foreign affairs committee failed to get the government to end its silence over the Israeli invasion of Lebanon in the light of mounting evidence about the indiscriminate Israeli use of cluster munitions.

We had hoped, however, that we would be able to point to ‘successes’ at a more detailed level. We found just two issues where MPs did make a difference.

First, the foreign affairs committee mounted a tenacious campaign to persuade the government to abandon its use of cluster munitions and to reverse its refusal to back an international ban on their use. The committee’s MPs won a partial success, encouraging the government to back the treaty to outlaw their use and end the use by British forces of ‘dumb’ cluster munitions. However, there are as yet no plans to work to outlaw ‘smart’ cluster munitions: they remain in service with the UK armed forces, and there is plenty of doubt about their ability to disarm themselves.

Second, in the case of Britain’s complicity in the ‘extraordinary rendition’ by the CIA, MPs failed to make the government ‘come clean’ on its collusion in the US’s illegal policies. The most that can be said is that they made government ministers uncomfortably aware that they were at least under scrutiny.

In both these cases, pressure groups such as Amnesty International and Human Rights Watch played a significant part in informing MPs and their committees and keeping up the pressure. Here, at least, people who are concerned to ensure that Britain plays an ethical role in foreign affairs, and does not spread death, injury and misery through its own actions can join in exerting pressure on Gordon Brown and his government.

As it happens, they were caught before they reached even their first target. (They walked calmly once they were in the airbase rather than running, as they thought they would be less likely to be shot if they were seen by guards.)

On 22 May a jury of eleven women and one man at Bristol crown court acquitted the two men on charges of criminal damage. This was the end of a long ordeal for them both – they were first tried for the same offence in October 2006 after the court of appeal had ruled on whether they (and other protesters who had broken into RAF Fairford on other occasions) could argue that the invasion represented a ‘crime of aggression’ under international law that had effect in domestic law. They had been held in prison for several months and faced long prison sentences had they been found guilty.

As I understand it, the court of appeal ruled that the legality of the invasion was not an issue. This was not least because the government – or rather, let’s be real, Tony Blair – went to war under royal prerogative powers, which do not require parliamentary approval and are outside the jurisdiction of the courts. In a judgment that trawled back to Blackstone’s Commentaries of 1769 and a pre-war case of piracy in China, one judge described the protesters’ case as ‘an attempt to limit the government’s freedom of movement in relation to the actual use of military force’. He said: ‘It is unthinkable that the national courts would entertain a challenge to a government’s decision to declare war or to authorise the use of armed force against another country!’

Thank god, then, for the inconvenient existence of the jury. The court of appeal did (again on my understanding) rule that the criminal law allowed citizens to commit what would otherwise be a criminal act to protect their own or someone’s property, or to prevent a greater crime, if they sincerely believed that was what they were doing. Well, there was no question about the sincerity of either Toby Olditch or Philip Pritchard; their testimony breathed sincerity.

I am sure, however, that the jury was also persuaded by the enormity of the ‘shock and awe’ assault upon Iraqi cities and communities. On this count, Philip Pritchard’s evidence on the effects of cluster bombs and depleted uranium (DU) was utterly convincing and chilling. I think we all know that cluster bombs are not that effective in immediate action, but can go on killing and maiming men, women and children for years afterwards. I am ashamed to say that I was unaware of the evil effects of depleted uranium.

Depleted uranium gives shells and missiles a far greater penetrative power than conventional metals and so is great at bursting through bunkers and even greater at destroying houses and habitats. It also gives off radioactive material that pollutes the air people breathe and the water they drink or wash in; and people may breathe in or ingest this vile product over a ‘half life’ amounting to four and a half billion years. The effects on human beings, both alive and yet to be born, is devastating.

The US government does not respond to questions about DU use. Defence minister Adam Ingram confirmed in answer to a parliamentary question that British forces do use DU and other modern weaponry, the better to protect our troops.

It makes me sick as I contemplate this. The big lie inherent in the idea that the Yanks and the Brits use ‘clever’ and ‘precision’ weapons to avoid ‘collateral damage’ in their ‘strikes’ against their targets is shameful enough. But that they also use such indiscriminate and devastating weapons, which will claim victims for countless generations to come, is surely a war crime?

It may not be ‘justiciable’ in the domestic courts of the UK. But it is ‘justiciable’ in the court of human justice across the world, and thank god it proved to be ‘justiciable’ in Bristol. And for me it will be ‘justiciable’ when I come to vote.

Yes, what a pathetic sanction – when I come to vote . . . The prosecution was going to argue that Toby Olditch and Philip Pritchard could have used democratic means to make their case against the war. In response, Democratic Audit produced a legal brief for the defence that showed Blair assembled a very small group of ministers and officials to take the UK to war against the wishes of the people; and that when deceit and manipulation failed to win the argument, he resorted to the brute use of political power. The cabinet was kept largely in the dark and parliament was denied a vote until it was too late. The prosecution wisely decided to drop the democratic line of argument; it was not on their side.

As it happens, democracy came to the aid of the two men in the form of the jury. In this sense, the jury was the last resort when the cabinet, parliament and the courts had failed, as previous juries have been over the years – for example, over the destruction of GM crops. The British public is fairly sympathetic to direct action, as opinion polls for the Rowntree Reform Trust have shown – as long as the action is non-violent and careful to protect others from harm.

Toby Olditch and Philip Pritchard conducted an exemplary campaign. They prepared statements to justify their actions. They planned to attach such material to any bomber they sabotaged to make sure that no one would attempt to fly it. They prepared to give themselves up afterwards. In doing so, they not only frustrated the prosecution’s attempts to portray them as reckless and dangerous; they have also been able since to make an eloquent case for their action among the public at large.

Shortly after their acquittal, Jeremy Vine gave them time on his BBC Radio 2 chat show. They didn’t have as long to make their case as they had in Bristol. If those who managed to have a say on the programme are anything to go by, listeners were obviously amazed that they had been acquitted and there was a strong current of outrage centred on the idea that they were undermining our troops. But the very reasonableness of their action disarmed the most strident criticism; and one man had the last word, saying that in light of the danger from ‘friendly fire’, they may well have saved a few British lives.

The Bristol jury has struck a blow for democracy on matters of war – a democracy that is currently denied to us via our representatives in parliament. We should salute both Toby Olditch and Philip Pritchard’s action and the jury’s decision to endorse it. For the future, we need to examine very carefully Gordon Brown’s promised reform of parliament’s role in making war.

Government needs to be placed under a statutory duty to seek parliamentary approval in advance, or immediately afterwards if its hand is forced. True democracy demands no less.

Perhaps it seemed that the prerogative was one of those quaint survivals that gave the Crown the right to sturgeon and swans or sanctioned the men in tights who rule over the flummery at the Palace of Westminster. In fact, the prerogative gives the prime minister and his government almost unchecked powers not only to make war abroad, but also to deploy troops at home (to maintain the peace), to make and ratify treaties, to conduct foreign policy, to negotiate for the UK in the EU and on other multilateral bodies, to share in Nato’s decision-making, to represent Britain at the United Nations, to organise and re-organise the civil service, to grant and revoke passports, to dissolve Parliament, to dispense peerages and honours, to appoint senior judges and to stop prosecutions.

These rights are medieval in origin and are formally used by ministers (and officials) on the Queen’s behalf. In effect, they give ministers wide-ranging executive powers that may be exercised without parliamentary approval or scrutiny. Parliament doesn’t even have the right to know what these powers are. Ministers shrug off parliamentary questions about them by saying that it would be impossible to list them, that records are not kept of their use and that it would not be practicable to do so.

The prime minister’s ability to engage in armed conflict overseas is the most outrageous of these powers, but a moment’s thought reveals how all-embracing the government’s freedom to make foreign policy and enter into treaties actually is. Deals in the WTO; policy decisions at the World Bank, IMF and Nato; negotiations in the G7 and G8; diplomacy in the UN Security Council; the governance of the EU: these are all covered by the royal prerogative. This is a wide-ranging panorama of policies and decisions that intimately affect the everyday lives of the people of Britain and the world. The debates in Brussels (like the current debate on targets for carbon dioxide emissions) are vital matters; EU trade policies do more harm to the lives of people in developing countries than the aid we so generously hand out to them can redress. Think, too, of the impact of decisions at the WTO, IMF, World Bank, G7 and G8 on, for example, the economies of developing nations and the world poor, or global warming. And what is it that allows Blair to determine the conduct of the special relationship with his comrade-in-arms George W Bush, and to turn his back on our European allies? The royal prerogative.

The slogan that united the hundreds of thousands who marched in protest against the Iraq war applies in each and every case: ‘not in our name’. The prerogative puts into the hands of ministers decision-making powers that do not require parliamentary approval or get parliamentary scrutiny while they are engaged in rounds of activity that shape the world we live in. The bodies in which such decisions are taken are remote and opaque, and the UK’s new freedom of information rules ensure that the role British ministers and officials play in them remains secret unless it is in government’s interest to make it known.

And this does not just concern the great international issues. The directives and regulations that pour through Brussels have a substantial impact on domestic law in the UK: some say that the EU shapes three quarters of UK legislation. Similarly, when Margaret Thatcher was prime minister, she used the prerogative to impose the ban on trade unionism at GCHQ, the intelligence services’ ‘listening post’ (and a crucial pillar of the special relationship).

You might think that the prerogative has no place in a modern Western democracy, that it is used as a smoke-screen by ministers to obfuscate the use of power for which they are insufficiently accountable. Well, that’s almost exactly what Jack Straw said when, in an earlier democratic incarnation, he described the prerogative in 1994. His words were true then; they are truer now.

The Iraq war has provoked renewed interest in ‘taming the prerogative’. The House of Commons Public Administration Select Committee conducted a thoughtful review of prerogative powers a year ago and published a short bill as a model for future reform. It recommended that over time all prerogative powers should be placed on a statutory footing, and that there should be early legislation on decisions on armed conflict, treaty-making and passports. Well-known radicals such as Douglas Hurd and William Hague expressed their concern that prime ministers should be obliged to seek parliamentary authority before going to war.

There are those who would reassure us that the two votes on the Iraq war have created a precedent that will ensure that in future any prime minister contemplating military action will have to get parliamentary approval first. So there is no need for legislation to insist upon it. But decisions of such gravity cannot be left to a government’s good will. Legislation is needed to put a stop to the exercise of public power without parliamentary authority, to put in place proper ministerial accountability and to give citizens the opportunity to make their voices heard.

Neil Gerrard, the Labour MP for Walthamstow (and regular Red Pepper contributor), has introduced a bill into Parliament, the Armed Forces (Parliamentary Approval for Participation in Armed Conflict) Bill 2005, the aim of which is to insist that in future prime ministers must seek Parliament’s authority for armed action abroad. Gerrard, who came 12th in this parliament’s ballot for private members’ bills, has strong cross-party support in the Commons, and the democratic reform campaign Charter88, now being revitalised by joint directors Ron Bailey and Peter Facey, is mobilising support outside Westminster.

Gerrard doesn’t expect that his bill will go far. He sees it as a scouting mission for similar bills after the next election and for a wider reform measure that will make prerogative powers generally subject to parliamentary approval. Ministers must, of course, possess flexible executive powers; otherwise, they could not govern. But the use of those powers must be open to parliamentary approval and scrutiny – and rejection.

It would be very difficult to frame a bill that would put all prerogative powers on a statutory footing and so make their use subject to parliamentary approval and scrutiny (though Liberal Democrat peer Lord Lester has had a go in the House of Lords). It is simply that no one, probably not even in Whitehall, really knows what they all are. So the public administration committee’s prescription looks like the best starting place: first, legislate at once on the three areas of most concern – military action, treaty-making and passports (a human rights issue), and pass a Civil Service Act that would ensure that changes must also be made subject to parliamentary approval; second, demand a full list of prerogative powers from the executive and prepare a bill for comprehensive reform. Where it matters, Parliament should also be able to mandate ministers, as they do in some Scandinavian countries. But that is another story.