The Conservative Party

The Conservative Party. This is the name of the organisation that has been responsible for the unspeakable disaster that British politics has degenerated into for over a decade now. Conservative is what this wrecking ball of a party is calling itself. That alone makes me once more stand in awe before the scriptwriters of this most expensive HBO series of all time. Who comes up with an idea like that?

This is the second time in weeks that this party has been in a position to organise and make a decision in whose hands executive power will be placed in the United Kingdom. Shouldn’t that, in a parliamentary democracy, be the people? Many think it should, but in fact it’s the MPs who are elected by the people. Their mandate lasts five years, and a clear majority of them are, as of this writing, still members of the Conservative Party. It is indeed the Tories who decide, and not only the question at hand, but also according to which rules and in which procedure. Last time, when a successor for Boris Johnson had to be chosen, the Tories thought it right to stage this decision as a weeks-long election campaign. For this successor, they preferred a maximally accelerated procedure in which only those who get the support of more than 100 Tory MPs are nominated for election at all. This is determined by the board together with the so-called “1922 Committee”, the Tory backbenchers’ organisation. The basis for all this – aptly named, it is all about legitimacy after all – is the party’s Constitution, which has been drawn up, deliberated upon and set into force by none other but the party itself, of course.

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I am not a Tory, so none of this is any of my business. Even if I were British, which I am not: It would be none of my concern. Purely an internal matter. The Conservative and Unionist Party, to quote their full name, a unincorporated private organisation, is looking for a new leader, according to its own rules, in very much the way they please. Once they have found one, he or she will be appointed by the King to form a government, as the Tories are in a clear majority in Parliament, and thus become Her Majesty’s Prime Minister. This is very much public, of course. But the leadership contest? Entirely private affair.

Since July, during the last leadership contest, the investigative platform Tortoise had been trying to get information from the Tories on how exactly the election procedures work, how many people and who exactly are entitled to vote and how and by whom exactly all this is controlled. To no avail. The party remained silent. Tortoise then resorted to the experimental method: would the Tories accept four fictitious new members – an actual tortoise named Archie, dead Margaret Thatcher under her maiden name and two non-citizens – as eligible to vote? Oh yes, no problem at all, as it turned out. Tortoise then wrote a letter to the party CEO with nine questions. He refused to answer: “The party is not a public body and it does not carry out public functions.” Tortoise has now filed a lawsuit with the High Court.

Whether Tortoise wins this case is questionable. The process would only be reviewable in court if the court indeed considers the party to be a “public body”. Parties are not part of the state, but of society. They are not there for the common good, but on the contrary to articulate and bundle particular social interests and organise majorities for them. They are dirty, ruthless power machines. Being that is their job.

In Germany, the situation is different because under the conditions of proportional representation, internal party personnel decisions rarely answer the question of power as clearly, harshly and comprehensively as they do in the UK. But the situation is also completely different from a constitutional point of view. Here, the Basic Law assigns parties an explicit public function, namely to “participate in the formation of the will of the people” (Article 21(1)). The Basic Law also interferes with the question of how they are to structure and organise themselves internally, namely democratically. How little the strict demarcation between the state and society organised in parties is self-evident is already testified by the ever-lengthening chain of BVerfG rulings on state party financing. All this has long since ceased to have much to do with the old liberal idea of letting the state be the king’s affair and society go about its private business, protected from state interference and encroachment by means of parties and parliament and liberties. Party means political, and political means public, and public means that you owe the public justification for what you do, in whatever legal form you are organised.

In the UK, too, it seems to me that the position that it is confidential private business of the Tories whether or not they allowed Archie the Tortoise to cast his vote for or against Liz Truss, and if so how and on what grounds, is now difficult to justify. If not legally, than certainly politically.

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What I find harder to answer is whether the Tories should be the organisation that decides about the next government at all. Politically, even ethically, the call for a new election is highly plausible, and if the Tories were still in any way shameable at all, I suppose they would realise that. Liz Truss was not democratically mandated to do all the things she so desperately wanted to “deliver”, and Boris Johnson, who resigned in disgrace, would be even less. But those who are and remain mandated are the Tory MPs. Their job is to provide a government with a majority, and it is up to their private-interest, partisan calculations whether and for how long they choose to do so. The bleaker their prospects are in a new election, the greater the incentive to keep their heads down and hope for better times and keep supporting whoever leads them, at the risk of being unable to explain that to their voters, which only makes their prospects bleaker. But how could the Tories’ prospects become any bleaker than they are? They would literally disappear from the political map if the election were held now, as far as the polls can be trusted. In one recent poll they are currently at 14 per cent. In the British first-past-the-post electoral system, that would currently mean that they would get five mandates. From currently 360 to… five.

What such an annihilation of the opposition would mean for the whole British system of government is hard to imagine. Even if things don’t get to that point after all: the damage is already immeasurable, and it is the Conservative Party who has done it. The prejudice that prudent, level-headed reason is the hallmark of conservatives as opposed to the revolutionary fireheads they are keeping away from power was not even true of historical anti-enlightenment societas civilis conservatism which has ceased to exist a long time ago anyway, even in the UK, which makes such a caricature as Jacob Rees-Mogg possible in the first place. Conservatism, not only in the UK, revolves around an empty core, has lost any idea of what it cares about and what it imagines a well-ordered society to be. Taken as a whole, this is not good news for the rest of the political spectrum either.

The week on Verfassungsblog

… summarised by PAULINE SPATZ:

ALEXANDER THIELE assesses the constitutionality of Chancellor Olaf Scholz’s directive to legally allow the continued operation of nuclear power plants still in operation. JANNIS LENNARTZ comments on Scholz’s directive and gives a legal and political evaluation of what it means that Scholz is using this tool.

Federal Minister of the Interior Faeser has placed the President of the Federal Office for Security Schönbohm on compulsory leave. ULRICH BATTIS explains what this means under civil service law.

SINA FONTANA uses the example of the energy crisis to illustrate that state strategies to ensure distributive justice are not crisis-resistant enough.

The 8th EU sanctions package against Russia prohibits legal advice to the Russian government and legal entities established in Russia. MATTHIAS BIRKHOLZ comments on the ban and the reaction of BRAK and DAV to it.

CENGIZ BARSKANMAZ comments on the decision on racial profiling in Basu v. Germany before the ECtHR.

ANDRÁS JAKAB tackles three misconceptions concerning the EU ‘rule of law crisis’.

ALEXANDER MELZER comments on an issue arising from the EUMAN Ukraine: whether EU military missions within the EU are in line with the EU Treaties.

MARTIN NETTESHEIM’s longread on two opposing Opinions of Advocates General at the ECJ on the relationship between data protection law and private autonomy are available now in English.

CHRISTOPH KRENN explains what the Repasi v. Commission case before the ECJ is about and argues that It could potentially become a Chernobyl case for our times. In the light of Repasi, MERIJN CHAMON, MARIOLINA ELIANTONIO& ANNALISA VOLPATO discuss whether an individual Member of the European Parliament should have a special legal standing before EU Courts.

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DOMINIK DWORNICZAK & HUBERT BEKISZ comment on the Opinion of Advocate General Sánchez-Bordona in the upcoming first CJEU judgment on compensation resulting from data protection infringements.

ZUZANA VIKARSKÁ criticizes the courts’ arguments in two recent European cases concerning blasphemy and the role of religion and religious sentiment in European secular democracies.

Christian Schmidt, the High Representative for Bosnia and Herzegovina, has imposed amendments to the country’s constitution that suggest he is aiming to create an ‘ethnic stabilitocracy’. BENJAMIN NURKIĆ &FARIS HASANOVIĆ criticize the decision.

ELEFTHERIA ASIMAKOPOULOU explains why the United Kingdom’s retained EU Law Bill aiming at restoring Parliamentary supremacy backfires.

EMINE OZGE YILDIRIM argues that the Turkish law on “disinformation” violates the ECHR and creates a chilling effect that could result in self-censorship. Against the background of fundamental communication rights, URS SAXER & ROMAN KOLLENBERGcriticize laws on “disinformation”, as recently enacted in Turkey.

JONAS PLEBUCH analyses the politicisation of the US Supreme Court on the basis of the argumentation with party-politically shaped legal figures, in particular the independent state legislature theory.

The US Supreme Court is currently considering a case that could have major implications for animal welfare, public health, the environment, and the balance between state and federal power. JEFF SEBO provides an analysis.

CHING-FU LIN & CHIEN-HUEI WU investigate the debate around the contested statehood of the Republic of China (Taiwan).

That’s all for now. All the best, and see you next week!

Max Steinbeis