Is the House broke? Does it need fixing?

I was relieved to read Nick Clegg’s comments last week about House of Lords reform.  Speaking to The Times:

‘..Mr Clegg… said that he would be “completely pragmatic” about his party’s ambition for a fully elected House of Lords. “This Government is not going to be yet another government which talks about House of Lords reform and then fails.” ‘ 

He is right that the question of House of Lords reform is one almost as old as the fabric of the building.  There is a reason for that: by and large, it works well and it is difficult to see how many of its touted successors might better perform what has become its principle role over the past century: that of revising legislation and holding the government to account through the use of a breadth of experience unparalleled in any other legislature.

Before considering reform of one part of a legislature, it is surely essential first to consider each House’s respective roles.  In federal countries the second chamber often represents the states and the lower House the people.  Thus, each of the United States elect two Senators regardless of size.  Were reform being suggested as a means of reflecting the increased devolution of the United Kingdom, it would be worth considering – perhaps through indirect elections from the Parliaments and Assemblies of the nations and the counties of England or, were elections to be direct, according each of the nations equal representation.  Either of these reforms pose immediate problems – of over-representation of both smaller nations and of political parties relative to their national strength – but they at least respond to an understanding of what a second Chamber is for.

Although the Lords’ origins are not as a revising Chamber of experts, that is how it has developed over the past 100 years, but especially since the Life Peerages Act 1955.  Before we consider reform – or at least the extent of any reform – let us look at what we would lose.  Retired generals debating decisions to go to war, retired governors of the Bank of England opining about finance reform, eminent scientists debating  issues such as embryology with theologian bishops, retired Law Lords elucidating the consequences of law reform that, in so many cases, have not been appreciated by the Lower House.  Notwithstanding their collective experience, all these debates take place within a House aware that, whilst it does not have the legitimacy to disregard a government’s manifesto commitments, it has a duty to pose questions that elude MPs more prone to look to short term electoral advantage.

It is suggested that current members of the House might stand for election.  If this is true for some, few wish to do so and they are, in turn, unlikely to be the most valuable members of the House.  In any event, such a suggestion misses the point.  The House of Lords brings such breadth of experience and independence precisely because its members need think about nothing more than the long term national interest when debating legislation and holding the government to account.  It allows Parliament to step back, to reflect, to take account of the considered and the historical view without compromising the ultimate supremacy of the representatives of the people.

So, before we dispense with the wisdom of two generations of some of our finest minds and the most experienced contributors to our public life, let us step back and consider how much poorer will be our legislation and how impoverished our public discourse without them.


There is no Justice in Anonymity

(Article first published in Counsel magazine, August 2008.  It was cited in the House of Commons research paper on the Coroners’ and Justice Bill, 22.2.2009 (at pp 38/39).)

The legislation creating the U K ’s Supreme Court was introduced by a Government that claimed to be providing for a new relationship with the judiciary: one at least based upon respect for its wisdom and experience. The publication of the Criminal Evidence (Witness Anonymity) Bill has put those intentions into sharp focus, however. The Bill was published on 3 July, less than three weeks after the House of Lords gave judgment in R v Davis ([2008] UKHL 36), the case which the Bill was intended to overturn. Five days later, the House of Commons was given a mere day to debate its provisions (see Hansard, 8 July 2008). While many MPs made valiant attempts to improve the Bill, little consideration was given to the principled grounds of the House of Lords judgment, where witness anonymity was subjected to a thorough and penetrating analysis.

Their Lordships’ conclusion in Davis was both refreshing and necessary: that it is a basic tenet of English law that an accused knows the identity of those who accuse him; and that witness anonymity unjustly compromises the ability of defendants to test adequately the evidence against them. The spectre of the violent intimidation of witnesses was not ignored in the judgment. Lord Rodgers referred to the continuity between the intimidation of witnesses in Cicero’s Sicily and that of the Mafia through the 20th century law of omerta. More pertinently, Lord Carswell—who sat as a judge in Northern Ireland during the worst years of the troubles before serving as its Lord Chief Justice—refused to accept that witness anonymity is a proportionate response to the problem of intimidation.

The House did not come to its judgment blind to the gravity of the challenge of gangland terror, though it did question whether the problem is any greater in contemporary London than it was in the ages of the Krays and of Northern Irish terrorism. Violent attempts to pervert the course of justice are a universal problem—one requiring careful onsideration, not emergency legislation in a whipped and guillotined House of Commons. Moreover, the fact that anonymity is applied only to the most serious of crimes cannot justify measures that are found to compromise the very possibility of a fair trial. One might think that fairness becomes ever more important the graver the allegation being tried.


The case of Davis turned upon the evidence of three witnesses who claimed to identify the defendant as having shot two men on New Year’s Eve in 2002. All three claimed to be in fear of their lives, although no evidence suggested that those threats derived from the defendant. The trial judge accepted their fear as genuine and granted them complete anonymity, an investigation affirmed by the Court of Appeal in upholding the conviction. On appeal, the House found that the defendant had been caused particular injustice by the almost complete restriction put upon an essential part of his defence: that his ex-girlfriend procured evidence against him. The witnesses’ anonymity prevented the defence from investigating whether any of the witnesses were even known to that woman, let alone subjecting them to informed cross-examination. Such a prohibition would apply to any trial conducted under the Bill’s provisions, where the defence may not ask “questions of any specified description that might lead to the identification of the witness” (s 2(2)(c)).

The possibility of injustice was no idle claim. Lord Mance referred the House to the case of Tadic (10 August 1995, IT-95-14) a Bosnian tried by the War Crimes Tribunal of the former Yugoslavia in 1995. Tadic had been accused of war crimes by a number of anonymous witnesses, one of whom was a man who claimed that the defendant had murdered his (the witness’) father. Yet when this man’s identity became known to the defence, it led to the father being found unharmed and indeed to him giving evidence in Tadic’s defence.


Another possible effect of witness anonymity was raised by Bob Marshall-Andrews, QC, MP, in the Committee stage of debate on the Bill (Hansard, ibid). He spoke of the prospect of a case where: “It appears from the case papers that the witness does not have an axe to grind and was a bystander or someone who was otherwise innocently involved” but where his client sees “things [in the] papers that lead me to believe that I can identify the witness”, who is no “innocent bystander”. In such circumstances, defence counsel would be unable either to adduce that evidence from the defendant or otherwise to allow it to inform his cross-examination of the witness—even where he knew it to relate to him—as to do so would risk the witness’s identification.


These examples demonstrate that the right of defendants and their lawyers to know the identity of their accusers is fundamental and not tangential. As the US Supreme Court said in Smith v Illinois (390 US (1968) 129 at 131, cited in Davis) “the very starting point in ‘exposing falsehood and bringing out the truth’ through cross-examination must necessarily be to ask the witness who he is and where he lives. The witness’s name and address open countless avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself.” No measures could ever avoid the risk that miscarriages of justice will be caused by witness anonymity because—as is amply developed by the three examples above—investigations by the judge or special counsel will never have the benefit of the defendant’s unique knowledge.


Though the protective measures applied by the trial judge in Davis recognised the need of the defendant’s counsel to cross-examine as to credibility— the prosecution having served the defence with the previous convictions of the witness—this material proved useless when removed from its context. It did not permit any investigation that might have produced evidence in support of the defendant’s claims. Nor did it allow the defence sufficient material to question and criticise the course of the investigation. And it made the defence wholly reliant upon the Crown for disclosure, the veracity of which the defendant could have had no opportunity to challenge. Most who have practised at the Criminal Bar have known cases where full disclosure was only achieved through a client’s knowledge of the factual background to a case, which may well include his knowing a particular witness. Worryingly, the Bill contains no requirement that even redacted disclosure relating to credibility be served on the defence.

Even the most basic assumption behind the provision of special measures was questioned within the speeches in Davis. Rather than consider whether anonymous testimony was likely to “improve the quality” of a witnesses testimony (in the words of the Youth Justice and Criminal Evidence Act 1999, eg ss 17 and 19), their Lordships asked whether its very reliability might be affected. Would witnesses be as careful to abide by their oath as they would be when giving evidence at court facing the unfettered cross-examination of defence counsel? Or might their anonymity “further heighten the witness’s sense of impregnability and increase the temptation to falsify or exaggerate”, as thought the South African Supreme Court (S v Leepile (5) (1986) 4 SA 187, cited in Davis)? The knowledge that the defence do not know a witness’s connection to the defendant (if any) and that they will never be able to
investigate his truthfulness is bound to increase that temptation.

It is true that s 5 of the Bill provides that the court must recognise the “general right of a defendant in criminal proceedings to know the identity of a witness in the proceedings”. Yet these provisions fail to answer the fundamental objection to anonymous testimony: that the defendant is the only person who can know whether a witness’s identity might have some bearing on his credibility; and that the inability of the defence to investigate a witness’s testimony is a denial of a right fundamental to any fair trial. This should concern all who believe that “we cannot balance the right to a fair trial against anything else, because it is an absolute right” (unlike Andrew Dismore, MP, Chairman of the Joint Committee on Human Rights, Hansard, 7.2008, ibid).


Of course it is worrying that as many as 40 trials may be affected by the ruling, including a number of notorious murder cases. Yet is it not more alarming that measures granting anonymity have come to be granted as a matter of routine without any real debate? A democratic society under the rule of law has a responsibility to ensure that those guilty of the worst crimes are unable to avoid just conviction through their intimidation of witnesses. But steps that violate the right to a fair trial will not lead to just convictions. Where defendants are unaware of the very identity of those making the gravest accusations, they are stripped of their right to know an essential part of the case against them. Such trials offend against a free society’s need for public justice. It is disturbing that a cross-party consensus appears to have sleep walked into yet another ill thought out, authoritarian response to a considered judgment in the best traditions of the common law: one handed down to protect from injustice those least able to defend themselves.

Why we need a Lord Chancellor

This article, in support of the office of Lord Chancellor, was published in Counsel magazine in September 2007.   

The appointment of a Member of Parliament as Justice Secretary is the final step in the effective abolition of the ancient office of Lord Chancellor, a title which Jack Straw will still hold. In its stead has been created a Ministry of Justice in the forefront of daily political controversy (through its administration of the prison service) and a minister sitting in the House of Commons and subject to all its party political pressures. This is not a development that should trouble only constitutional conservatives; it concludes the destruction of the office best placed to protect the independence of the judiciary within the British constitutional settlement. Its replacement makes political interference with the judiciary almost inevitable and removes a critical safeguard against unchecked political power.

Reconciling judicial independence

Any constitutional settlement of the judiciary must reconcile judicial independence with one central fact: that judges can never be wholly divorced from political authority. As they are an arm of the state, ultimate authority for judicial appointments will always lie with the government, however much judicial independence is protected by the Judicial Appointments Commission, now responsible for proposing appointments to the Crown. Only the Crown can make such appointments and only an elected government has the democratic legitimacy to be accountable for them.

Government must also, through funding the court service, ensure that it is able to meet its critical obligations to the public: a well run and efficient court service, sufficient judges to guard against unjust delay, and resources enough to provide good quality legal advice and representation to those unable to afford it. For these reasons, the minister responsible for the judiciary must have a position of power and influence within the higher echelons of the Cabinet.

Proper protection

The old office of Lord Chancellor developed due to the need to balance these realities with the government’s duty to preserve judicial independence. By making the minister responsible for the judiciary one of them – and their leader – their interests were guaranteed proper protection within cabinet; and this dual role constrained the Prime Minister in making the appointment: as a judge, the Lord Chancellor must be a member of the House of Lords – removing him from the daily political controversies of the Commons; he must be a Queen’s Counsel of distinction, earning the respect of his judicial colleagues; and he must undertake his political office in accordance with constitutional conventions which arose to protect the judiciary – and his office – from political interference.

The existence of this unique position at the heart of government but away from the House of Commons had another great advantage: it pushed political controversy relating to the judiciary into the arena of the Home Secretary, always an MP. This minister has been an essential lightning conductor, isolating the Lord Chancellor – and judiciary – from complaints relating to the day-to-day administration of justice, for which he was responsible.

Political controversy

More importantly, however, political controversy about the judiciary has, of necessity, been converted into controversy over policy. For without the Lord Chancellor in the House of Commons, MPs with concerns about individual sentences (as opposed to sentencing policy), individual judicial decisions and judicial appointments had no option but to address their concerns to the political process of the development and debate of policy. This is as it should be in a democracy: the executive and legislature develop policy and legislation and the judiciary, uninfluenced by the other branches, interpret it.

With the creation of the Ministry of Justice and the position of Justice Secretary, however, that minister has been thrown directly into the political fray. Freed from the conventions to which his predecessors were subject, placed within the House of Commons and removed from their close relationship with the senior judiciary, he will be as susceptible to political pressure as any other minister.


Of course, accountability is at the heart of any democracy. MPs represent their constituents and, collectively, the people; it is only right that they call to account all those in positions of authority. There may be occasions on which they are right to exercise their sovereignty over the judiciary itself: the constitution provides that High Court judges can be removed by a vote of both Houses of Parliament (and no less). But democracy requires more than the projection of the popular will. It must protect the weakest, safeguard the rights of minorities and defend the freedoms of individuals to speak, protest and act against the majority. No body is more important in providing this protection than a strong, courageous and truly independent judiciary. And there is no more necessary means of protecting their independence than their isolation from the pressure of powerful groups and interests given vent by the press and pursued in the House of Commons.

The old office of Lord Chancellor was no anachronism, offending the principle of the “separation of powers”. Its existence recognised that the judiciary can never be divorced from the sovereignty of the people and compensated for that reality by making their minister exercise his authority from within the judiciary. Through this “colossus” of the constitution were judges’ independence protected. With its abolition, that independence has never been more vulnerable.

A solution to the 55 % controversy?

My letter to The Times, published on 18th May, 2010, also cited on the Charter 2010 website.

Sir, The imposition of fixed-term Parliaments is not, in itself, an unwelcome innovation to the consititution (letters, May 15 ). It has long been apparent that the Royal Prerogative of dissolution — a discretion that could once be justified by the need to ensure workable government in an age in which party political allegiences were more fluid — has been abused by prime ministers for party political gain.

Yet, the imposition of five-year Parliaments would mark a departure from the norm of Parliaments of four years, a length more democratic and more comparable to the practice of most other parliamentary democracies. Five-year Parliaments are the mark of unpopular governments, often at the end of long terms of office (such as under Callaghan, Major and Brown).

More worryingly, the suggestion that Parliament should be prevented from dissolving itself without 55 per cent of the votes in the House of Commons is flawed. The coalition has already conceded that a government would have to resign were it to lose a motion of no confidence on more than half the vote, but less than 55 per cent. What might its successor do if it, too, were unable to obtain a dissolution? How might the country be governed, supply secured and necessary legislation passed?

Would not a more sensible measure be to require a government to resign on the passing of a no-confidence motion, after which a new government might have a month in which to conduct necessary negotiations to establish whether it was able to obtain the confidence of the House? Were it unable to do so, a second motion of no confidence, passed no less than a month after the first, would have the effect of dissolving Parliament.

Francis Hoar
London SW6

Reflections on the Election in Britain

Welcome to my new blog.

I wrote and circulated this article before the Coalition was formed.  Yet I do not apologise if you find it overtaken by events.  The Conservative partnership in this government must not lead the Party into complacancy; nor must it allow it to forget the steps that must be taken to spread a Coservative message not only through its policies but also through the argument it presents to the electorate.


David Cameron demonstrated throughout the campaign and, indeed, since his election as leader of the Conservative Party that he understands a cardinal rule of democratic politics: that parties presenting a positive agenda, however dire the economic outlook, however outraged the public with their elected representatives, however threatened the country by events beyond its control, win elections; and that parties presenting an unrelentingly negative message lose the confidence of the electorate. Margaret Thatcher’s message in 1979 was one of hope: hope for council tenants who had never before been able to aspire to the prospect of home ownership, hope for a country sick of being governed by the TGWU and hope for a nation still a witness to socialist tyranny across the Iron Curtain. Clement Atlee gave hope to soldiers returning to a bankrupt nation, to the sick and to the poor. Tony Blair’s message was one of youth, one that spoke to a country tired of a government tired of governing and bereft of fresh ideas.

The same, of course, applies in reverse. Winston Churchill’s warnings of the need for a Gestapo in a socialist state (in 1945) fell flat and repulsed an electorate that loved him but saw him face a man of good will desirous only of fighting against Want, Idleness and Despair; William Hague warned shrilly of ‘five days to save the pound’ to a country fully aware of Blair’s commitment to a referendum; and Michael Howard asked if people were thinking what he was: they weren’t.

Gordon Brown’s campaign could not have fallen more squarely into the second camp, his grey demeanour the perfect face of a campaign of bitterness and hysteria thoroughly deserving of its comprehensive rejection. Cuts to taxation that would ‘take money out of the economy’, a phrase so lacking in economic logic it put paid to his reputation as a brilliant economic mind. The withdrawal of ‘Tax Credits’ (in reality benefits) from families earning over £50,000 said to threaten greater child poverty. The suggestion of cuts to front-line services made by a government fresh from wielding the axe on A&E services throughout rural England and whose plans for further cuts to junior doctors and nurses lost their secrecy as the election progressed. The crude return to another age of class based politics underlined by the unofficial campaigns and phrases referring only to Cameron’s background, not his message. The politics of desperation. Where was the optimism that this great nation could recover its confidence and dynamism? Where the spirit of a Blair who spoke so inspiringly of his confidence and faith in the British people? Where the ‘white heat of technology’, ‘the ‘property owning democracy’, the ‘we’ve never had it so good’? (Alright, that last was a joke.) Perhaps it was a reflection of his puritanical upbringing, his remarkable success in his Scottish homeland one of the more noteworthy features of this election, but such dour gloom was incapable of inspiring an electorate that never cries more for hope than when faced with despair.

So Cameron did well to stick to his message of optimism with dynamic resolution. Yes, there was negative campaigning (very effective at that: ‘I doubled the national debt: vote for me!’) but no speech from David Cameron could leave anyone in any doubt that this was a man who believed in harnessing the energy and spirit of the British people.

But what went wrong? Gordon Brown is likely to go down as the least successful Prime Minister since Alec Douglas-Home. His record is and must be linked inexorably to his 10 years as Chancellor in which his bastardisation of Keynsian economics – borrowing exponentially in an economic boom he helped create by requiring the Bank of England to ignore asset price inflation when fixing interest rates – was the cause of the economic crisis with which he had to deal as Prime Minister. His reputation for economic competence as Chancellor will forever be haunted by his bizarre claim to have ‘abolished boom and bust’, a boast that would have made even Francis Fukyama blush. His answer to everything was to throw money at a problem or a department without first ensuring the extra finance would have any effect on productivity: unsurprisingly, announcing huge increases in health spending before they took effect led to union pressure for vast pay rises that absorbed the preponderance of each spending splurge. He will be remembered for his aggressive campaigns as Chancellor – managed by his acolytes in the Parliamentary Party and elsewhere – to destroy any prospect of public sector reform proposed by the very government of which he was part.

This was a target whose every action could have inspired a Conservative response. Yet it did not. For the weakness in Cameron’s performance was caused not by his campaign, not by his reliance on Lord Ashcroft (whose financial backing far outweighed the embarrassment of his tax status), not by his Etonian roots, but by his failure to appreciate that a Conservative message is one that must be argued for and promoted from the very start of a Parliament in which a party seeks to govern a country ever more reliant on the State and ever more susceptible to a government message that only the public sector could deliver the services and benefits on which it had come to rely.

Cameron’s answer to this criticism is one to which I am sympathetic: that the Conservative Party had first to demonstrate that its interests were not solely in economic productivity, still less in the success only of the prosperous and able, but that it had a mission as much of improving the lot of the ordinary citizen as that of any social democratic party; and, also, that it was a party that understood and mirrored the modern age. He was right to excoriate bigots, promote a party that visibly reflected the multi-ethnic society Britain has become, apologise for homophobic legislation for which the Party was responsible and accept legislative reform normalising the rights of gay citizens. He was right to argue that what delinquent youths were missing was not merely discipline but love. He was right to promote Iain Duncan-Smith’s bold research into and campaigns about the means by which deprived communities might be empowered through taking control of their own communities, rather than relying on the State.

This last sentence illustrates the power and optimism of the Conservative message. Conservatism is often said, by those who misunderstand it, to be a negative philosophy, one that believes that only self interest can better society through the power of the market to deliver wealth to all; as opposed to optimistic socialism that relies upon the good-will of the citizen to work just as hard for the common good as for himself and his family. I believe the reverse is true. A Conservative believes that, by harnessing the freedom of the individual to pursue his dreams, a society will develop where those free men and women recognise – in the little platoons so beloved of Burke – their responsibility for those less fortunate than themselves. The first schools were founded by Abbeys whose moral imperative came from a Power higher than that of the king. The estate villages and towns such as Bourneville and New Lanark were developed by landowners and industrialists who recognised that well housed, clothed and educated workers produce better results and make for a happier, more contented communities. The incredible civic buildings of our great provincial cities were funded by citizens whose pride was not merely in themselves but in the communities that made them. Yet it is not merely the wealthy whose energy is unlocked by their freedom. Friendly societies and reading groups developed through the community involvement of ordinary working people in the 19th century. Trade unions did not merely fight for decent conditions for their members, they provided education, insurance and the means by which people might better themselves. And, more recently, neighbourhood watch schemes enhance those communities’ control over their own security.

Socialism, on the other hand, is not positive at all. It relies upon the State to enforce uniformity and equality by removing freedoms (both social and economic), fearing the inevitably disordered, human consequences of freedom. It does not trust people to run their own lives. It patronises communities with its arrogant belief in the superiority of the bureaucrat or the ‘public servant’. It houses families in inhuman tower blocks devoid of the organic community spirit they replaced – the worst answer to the necessary clearances of the slums. And it penalises those who dare aspire to success for themselves, their families and their communities. Its effect – taken across the whole of the post-War years – has been to dull the sense not merely of community but of responsibility across whole swathes of Britain.

This is a message that I believe Cameron understands instinctively. His problem, I believe, is that he underestimated the difficulty in persuading a sceptical public intoxicated by its reliance on the State of the benefits of economic liberation. Do not forget that Margaret Thatcher’s fiscal and economic reforms – now largely accepted even on the centre left – were developed and espoused with passion and continuous force by Keith Joseph and Enoch Powell long before she came to power. These two, in particular, were the prophets of a rejection of the lazy acceptance of the quasi-socialist post-war settlement by the Conservative Party. Their experience demonstrates that a conservative message – especially its economically liberal component – is something that must be expounded with constant argument and explanation; and that a society reliant upon the State must be made to understand the need for freedom by a message that demonstrates the advantages of such a message to all. Margaret Thatcher understood this. Her sale of council houses (then a gigantic proportion of the housing stock) was a master-stroke.

What Cameron needed to do was two-fold. Firstly, to teach the public the positive tenor of the Conservative message: its belief in society; its belief in the ability of individuals, families and communities better to run their own lives than agents of the State; and its belief that those wholly reliant upon the state would lose any sense of dignity or responsibility. This he did brilliantly.

Where he fell short was in linking this message to one of economic liberalism – its logical bedfellow. If charities, businesses or local communities can run their own schools, there is no need for Local Education Authorities (a group of state departments whose discredited educational theories have left a education system devoid of competitive sport, practical science or exams that has failed boys, a generation less literate than ever before in the modern age thanks to the decline in phonics and a generation ignorant of the narrative of British history). That means a spending cut that does not affect front-line services. Hospitals do not need to be managed by staff who number more than doctors, nurses and paramedics combined. Local authorities can shed ‘three veg officers’ and other vestiges of the Nanny State. More spending cuts. And people able to work but who refuse jobs they are offered should lose their right to benefits unless, perhaps, they engage in community service equal to the benefits they receive.

Thus might the public have come to understand that providing quality public services requires neither that the State manages them nor that spending on a particular area need necessarily be increased. As I said above, the last  government was – quite outrageously – responsible for genuine cuts in hospital A&E provision whilst presiding over a huge mushrooming of managerial positions in the NHS. This is a moral outrage and should – and could – have been presented as such.

To have embarked upon this strategy of persuasion from the very start of his leadership would have allowed Cameron and Osborne to prepare the public for a message that they were able to understand and accept through being prepared for it; one whose internal coherence and logic they might come to appreciate: that the country’s public sector was increasing, is increasing and ought to be diminished; that to do so would not threaten public services; and that, without such spending cuts, the country risked bankruptcy. Had such a message been prepared and expounded with conviction and vigour from 2005, the public would have understood instinctively, by 2008, that economic disaster could only be averted by immediate and far reaching spending cuts. As it was, George Osborne’s call to ‘share the proceeds of growth’ destroyed any credibility he might have had in making that argument; and the Party’s failure adequately to promote a message of economic liberalism alongside its effective apologia for communitarian conservatism cost it an overall majority.