CHAPTER THREE: TOWARDS A CONCEPTUAL FRAMEWORK
A better understanding of conscience voting will not emerge without an adequate conceptual framework. The question “How are we to think about conscience voting?” is as important, or more so, than the question “What happens during conscience votes?” While the previous chapter discussed the conscience voting literature and gave an assessment of its current state, the focus in this chapter moves to a review of a number of explanatory frameworks and literatures at the subject’s edges. The key question in this chapter is: Given that conscience voting is a relatively new subject for scholarly inquiry, what are the relevant conceptual frameworks for thinking about, and researching, conscience voting?
A Palette of Perspectives
A number of perspectives on conscience voting can be advanced to conceptualise its use. These perspectives are summarised in a number of statements, listed below, each of which is elaborated, in turn, in the remainder of this chapter. They are lenses through which to look at the issue, not accounts of why specific conscience votes were held. No claim is made that they are conceptually equivalent to each other, but each is believed to have one or more useful insights to contribute. Their purpose is to probe beyond the conventional focus upon the nature of the issues themselves, and to consider what forces may be intersecting to perpetuate both the parliamentary mechanism called conscience voting and its subject matter.
Conscience voting as:
Law and Morality: a product of disagreements over the complex relationship between law and morality.
Party Cohesion and Discipline: a way to minimise the impact of party disunity.
Morality Theory: an institutional response to issues with high moral content.
Public Policy: a parliamentary response to difficult questions of public policy.
Cultural Change: a mechanism used to deal with an arena of contested values.
Legitimacy, the Naked Public Square and the New Political Culture: a mechanism for parties to handle social, cultural and political change.
Institutionalism: a reflection of parliamentary structures and institutions prevailing at a particular time and place.
Historical Institutionalism: a reflection of past parliamentary practices.
Political Pragmatism: a pragmatic political response to contentious public issues.
Law and Morality
Although the relationship between law and morality is complex, legislation is not enacted in isolation from the moral basis of a society, and the act of law making must necessarily consider, though not necessarily directly follow, the moral code of that society. Opinions differ, however, on the nature of the connection. This was clearly illustrated in a well-known debate between two British legislative experts occasioned by the 1957 Wolfenden Report, commissioned by the British government to enquire into the fairness of their laws on homosexuality. Among other things, the report addressed the relationship between the law and morality. The report stated that:
Unless a deliberate attempt is to be made by society, acting through the agency of the law, to equate the sphere of crime with that of sin, there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business. To say this is not to condone or encourage private immorality. On the contrary, to emphasise the personal and private nature of moral or immoral conduct is to emphasise the personal and private responsibility of the individual for his own actions, and that is a responsibility which a mature agent can properly be expected to carry for himself without the threat of punishment from the law. … The function of the criminal law is to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against the exploitation or corruption of others. … There must remain the realm of private morality and immorality, which is not the law’s business.1
The report spawned a public discussion on the subject, in which the most high profile discussants were Professor Hart and Lord Devlin. The former believed that law and morality had nothing to do with each other, while the latter believed that law should reinforce morality. Aided by the diminishing relationship between church and state, Hart’s view has increasingly come to predominate in both Britain and New Zealand:
In the more than 100 years between John Stuart Mill’s essay On Liberty, in 1859, and the report of the Wolfenden committee in 1954, there has been a strong tradition that the criminal law should not punish conduct simply because it offends against the accepted moral code. The conduct punishable should be either directly harmful to individuals or to their liberty, or it should jeopardise the collective interest society has in maintaining its organisation. Maintaining a code of morals is not the province of law but should be left to the churches, or education, or to the outcome of free discussion among people. John Stuart Mill said, “The only purpose for which power can rightfully be exercised over any member of a civilised society against his will is to prevent harm to others.2
Nevertheless, for MPs who must vote on legislation with moral implications, the relationship between law and morality is by no means settled. During the Crimes Amendment Bill of 1974-5, which proposed to legalise homosexual acts between consenting males, regular mention was made of both the Wolfenden Report and the debate it spurred.3 Henry May described the dilemma succinctly to the House:
…the question I have to resolve in my own mind is one of conscience. It is well known that any law introduced by any Government of any nation must have some regard to what is commonly known as the moral law. … I have come back to this question all the time: do we make something that is immoral, and has always been maintained to be morally wrong, suddenly legally right? By doing that, do we reduce the practice of what is commonly regarded as a perversion? Everyone must make up his own mind about this.4
In New Zealand, the Homosexual Law Reform Bill of 1985-6 addressed this issue in similar terms, and a range of views were expressed:
John Stuart Mill asserted the view, reasserted much later by the British Wolfenden report on homosexuality, that legal coercion—the weight of the criminal law—can be justified only for the purpose of preventing harm to others. … Law and morality are overlapping circles. Morality condemns murder, as does the law. Morality may condemn adultery; the law does not. As lawmakers, we have the responsibility to decide not where morality lies but where the law should lie.5
is [it] the purpose of the House to be concerned with the nation’s morals[?] The answer must be yes. Parliament does not allow me to go home and have intercourse with my daughter, for the very good reason that the product of that connection would be a mutation. It is the job of the House to consider the morals of the nation when it comes to censorship. The House is concerned with morals, moral standards, and moral guidelines.6
Fundamentally, the question to be answered by the House is whether personal morality can or should be imposed by law and the threat of criminal sanctions. I do not believe that that is the proper role of the law.7
I take up the argument that it is not the function of the law to enter the field of morals. This is a statement which has been widely coined in the course of this and other recent major moral controversies in this country, but in fact there is no country, no society, without its moral code, its taboos, and its own values backed by legal as well as moral sanctions. There is no country in the world that does not recognise that at a certain stage the State must step in with legal sanctions to regulate sexual behaviour, and the difference between the so-called conservative and the so-called liberal countries is merely one of degree. This is well illustrated by the fact that this Bill itself does not hesitate to impose legal sanctions in the case of indecent acts performed on minors and mental defectives, acts performed under threat of violence, and the like. So let us disabuse ourselves of the idea that it is not a proper role of the law to proscribe sexual behaviour to a greater or lesser degree.8
If the law does concern itself with morality, whose morality is to be legislated? In a pluralistic society, moral values are not held universally, and disagreement is inevitable when fundamental social change is proposed. This is how the then Canadian Justice Minister, Mr Turner, described this problem in 1975:
The problem of trying to render synonymous law and morality is that we then come down to the question: Whose morality? Whose standards of behaviour? Whose sense of morality? Who is to determine the standard? Who is to attribute the blame? Who is to say what is moral and immoral? Who is to decide when moral responsibility exists in terms of freedom of will, and when it is best diluted in human terms because of environmental or physical causes? In a pluralistic society there may be different standards and differing attitudes, and the law cannot reflect them all.9
One of the implications of the Wolfenden Report’s conclusions is that, when detached from a moral code, the legislative code is not static but evolving. The law tends to reflect the social, rather than religious, values a society holds and, as such, not only can but must change to accommodate social conditions as they emerge. In this manner, the purpose of the law is to serve society, not be its master.10 This theme of legislative evolution accounts for a degree of the change observable in the subjects of conscience votes in New Zealand since the late nineteenth century. What were moral issues at one time have largely been emptied of moral content e.g. censorship legislation, to be replaced by other issues which have emerged as morally contentious e.g. civil unions.11
Politicians are divided, even confused, over the extent to which the state has a role in codifying a particular moral principle or set of principles, or whether the only legitimate moral principle in legislation is freedom of the individual to choose for themselves the moral code they will live by.12 The ability of some issues to touch questions of meaning, purpose and right and wrong, and uncertainty over the role of the law in promoting this, make them candidates for conscience voting.
Conscience voting is therefore sometimes invoked in an effort to permit each MP to make their own decisions about the extent to which society’s moral code should be codified in legislation, and which code this should be. This may help to explain the surge in conscience voting since the 1960s, which coincides with the retreat from the public sphere of traditional morality, the increasing number and range of social issues coming before parliament, and the predominance of the view that the law’s purpose is not to reinforce a moral viewpoint.
Party Cohesion and Discipline
Party unity, cohesion and discipline are related but distinct concepts, though their conflation is a common indiscretion in the literature.13 Unity describes the degree to which members of a party act in unison, cohesion focuses upon the extent of unity a party experiences, and discipline describes the process by which parties attempt to ensure cohesion.14
Membership of a party involves a trade-off. The power of collective action as well as institutional benefits such as membership of the executive and greater access to resources are on offer, but these can be gained only at the expense of individual autonomy, responsiveness to local, as opposed to party, loyalties, and the freedom to follow personal principles.15 There is, therefore, a constant tension between the needs and interests of the individual legislator and their constituents on the one hand, and the party’s requirement for unity in order to govern on the other. At times, members of parliament may be more responsive to electorate demands than to pressure from their party leaders. The candidate selection process, the degree of centralisation of the party’s decision making, the size of the party’s parliamentary majority, and regionalism and federalism have all been demonstrated to be influential at times in fostering dissent.16 This tension means that, at times, voluntary unity is insufficient to produce party cohesion, and party discipline is required. Even so, party discipline is only likely to be effective when party leaders possess instruments, such as the promise of future patronage, that are sufficiently influential to achieve this.17 Thus, party discipline is not absolute, becoming necessary if cohesion is lower than required for governing, but is only possible if it is already sufficiently high that co-partisans allow their party such powers over them.18
Maintaining party unity in parliamentary systems is paramount because the executive and legislative branches of government are combined, there being no second arm of government to maintain the continuity of governance in the event of a legislative defeat. Without the assurance that the government can win every vote in the House, therefore, confidence in the government is effectively lost and, by convention, that government must resign. Even for opposition parties, maintaining unity enables them to present themselves as organised and orderly, and, potentially, a government in waiting.
A focus upon party unity immediately implicates its opposite as an equally important subject for investigation.19 Party disunity is here understood as the unauthorised departure – either observed or threatened – by individual legislators from party positions at any stage of the parliamentary process.20 Such disunity may merely involve intra-party disagreement, or it may actually manifest in crossing the floor in a House vote. Either way, party leaders in most political systems have available to them a number of sticks (e.g. ostracism, denial of reselection, expulsion) and carrots (cabinet and committee posts, post-parliamentary positions, resources) to encourage members to vote with their party.21 In almost all cases, however, discussion and negotiation prior to a vote is preferable to a public dispute that could be damaging to both party and MP.22
Even if a party denies a request for a conscience vote, their denial may not be simply point blank. Political pragmatism encourages party managers to continually manage intra-party disagreement, and the imposition of party discipline isn’t necessarily always their first recourse. The Labour party, for example, often asks members who disagree with aspects of the party position on a particular matter how their dissatisfaction can be assuaged.23 Thus, the House may never see any evidence of intra-party disagreement, even as a conscience vote, because the party, as part of its internal management, will negotiate agreed policy positions obviating the need for voting splits of any form.24
Assuming both parties in the dispute – the party and the member – have an interest in maintaining party unity if at all possible, a number of compromise positions are available, such as the member not voting and/or abstaining from the vote,25 the delaying or removal of the issue from the parliamentary agenda, the granting of a split-party vote (if available),26 or the use of a conscience vote.
Under this view, therefore, the subjects, policies and processes that do not warrant strict party cohesion are therefore the cracks through which conscience voting may emerge. The preference to remove the whip rather than risk a display of public disunity is a choice party leaders make to maintain general party
cohesion. From this perspective, it is the particular conditions that give rise to party discipline, and those that restrain it, that define the role of conscience voting.
A party’s decision to remove the party whip may take two basic forms. First, the party may remove the whip for just the dissenting member or members, permitting them to vote as they please even if it means them crossing the floor. Under this scenario the party maintains as much unity as it can and the free vote effectively becomes officially sanctioned dissent. Second, the party may decide to not only remove the whip for its members, but also distance itself from the issue altogether by adopting no position on the matter. The withdrawal of a party position removes the possibility of dissent completely as there is then no party position from which to dissent.
Individual legislators are not only agents acting in response to party structures but are often purposeful in their own right,27 making decisions that reflect their own needs and desires and responding to their own particular political context.28 Parliamentary parties are not merely “single unified actors[s]” but are “complex and variegated sets of persons and structures, each of which are, or could be, independent actors within the party.”29 Such a perspective permits a view of MPs as acting from motivations that are not necessarily distinct from the interests of the party itself, but are a combination of party, electoral and personal concerns. Members may be incentivised to act in unison (or not) by factors such as their own career paths, the benefits of power, a sense of loyalty and camaraderie, or shared beliefs. These same factors may lead them to support those ideologically close to themselves, especially when the ideological distance between the parties is considerable.30
2 The Conscience Voting Literature
3 Towards a Conceptual Framework
4 The Role of Conscience Voting in a Parliamentary Democracy
5 The Historical Antecedents of Conscience Voting
6 The Development of Conscience Voting Since 1936
7 Conscience Voting and Parliamentary Procedure
8 Conscience Voting and Parties
9 Conscience Voting and MPs
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CONSCIENCE VOTING IN NEW ZEALAND