The government has made an error by not condemning attacks on the rule of law

Last Thursday the British government suffered a shock defeat in the High Court. It ruled that the government could not invoke Article 50 of the Lisbon Treaty, launching the process of exit from the EU, without parliamentary approval. Reaction to this has split along partisan lines, depending on whether you think Brexit is a good idea. But the reaction of some Brexit supporters is pure hysteria. This posed a challenge to the government that it has handled badly.

The case itself arises because Britain lacks a written constitution – so constitutional principles evolve in a rather haphazard way. The government’s case was founded on a curious combination of a brand new constitutional principle, and an ancient one.

The new principle is that sovereignty rests with the people, and that the referendum result was a clear expression of the will of the people, to which the state executive may conform directly, bypassing parliament. This is a perfectly viable idea. But it is not one that has been established in British law – and, indeed, it did not form the basis of the government’s legal argument, though it served to give it moral authority. The current principle is that parliament is sovereign, not the people, though parliament is subject to popular election. I am no fan of parliamentary sovereignty, though it makes some people misty-eyed – ironically it was much invoked as a precious British institution by Brexit campaigners during the referendum. Actually I see the sovereignty of parliament as a potential threat to freedom, and it should be subject to constitutional constraint, like all other parts of government. These restraints include such things as the Human Rights Act, and, indeed, the country’s treaty obligations to the European Union, which I view as a helpful restraint against corruptible power, rather than a dilution of democracy. One of my fears for Brexit is that it reduces the checks and balances of our constitution.

Still, parliamentary sovereignty is the rule, and it should only be changed through a due democratic process via parliament itself. And parliament has been very careful not to subordinate itself to referendums, which are an increasingly important part of our democratic system. They are always described as “advisory” – an act of consultation rather than authority in themselves. There is an ancient debate here between the virtues of direct democracy (such as referendums) and representative democracy (where elected parliaments have primacy). We haven’t resolved that debate properly – or if we have, it is in favour of the representative sort of democracy.

The ancient constitutional principle invoked by the government is that sovereignty derives from God to the anointed King or Queen, and from them to the Cabinet, a committee of the Privy Council. Parliament, or the People, are mere subjects of the royal whim (and, revealingly, “subjects” is the word commonly used in place of “citizen” in government language). This constitutional principle was heavily compromised by the Glorious Revolution of 1688, when parliament sacked King James II and passed the crown to William III and Mary II jointly; parliament further invoked its supremacy to secure the succession of Queen Anne in 1714 to George I. But the principle lives on under the Royal Prerogative, which is the basis of much executive power, including, relevant to this case, the making of treaties with foreign powers. The court decided that Article 50 would in fact involve a breach of Acts of Parliament rather than just the termination of foreign treaties, and so the government could not use the royal prerogative. Anybody who remembers the fraught parliamentary debates, from 1972 onwards, at each stage of the evolution of Britain’s membership of the EU, will not be surprised that it can’t just be unmade at the whim of the Queen’s representatives.

The court case isn’t over. There is an appeal to the Supreme Court, as is only proper in a case of such importance. But most think the judgement will be upheld. Talking to a senior lawyer when the case was brought originally, I was told that the High Court was likely to find for the government, but that the verdict stood a good chance of being overturned by the Supreme Court. So the government’s case looks weaker than it first appeared. You will gather than I am not particularly surprised.

So here we have a constitutional challenge being resolved in a civilised and proper way. That makes the reaction of some Brexit supporters very striking: they are saying that it is outrageous for unelected judges to intervene to thwart the clearly expressed will of the people. Suzanne Evans, a Ukip leader, has been particularly voluble, suggesting that the judges concerned should be sacked. But the Brexit newspapers, the Telegraph, the Express, the Daily Mail and the Sun in particular, are no better. The Mail sought to undermine the authority of the court by pointing out that one of the judges was openly gay.

This attitude reflects the views of much of the pro-Brexit public too, to judge by some vox-pops on the radio and social media comments. But it is in contrast to the equivalent populists in the US. These treat the US Constitution as holy writ, and nobody challenges the right of the Supreme Court to limit the actions of politicians or the state, or even to overturn the results of referendums, which happens frequently. Such is the difference that history makes.

What we have instead reminds me a lot of fascist attitudes in Europe before 1939, as practised by Hitler, Mussolini, and others, and advocated by a number of political groups in other European countries. The referendum was a favourite device of these dictators: a way of proving that they derived their authority from the will of the people. They saw the law as an instrument of executive power.

Of course we should not make the mistake of assuming that all Brexit supporters share such fascist tendencies, and we should remember that another key ingredient of fascism, the advocacy of a superman leader, is absent. Indeed pro-Brexit Tory MP Stephen Philips disagrees with the government on this, and has resigned in disgust at his party on this and other issues. But there seems to be a hard core, represented by Ukip, many Tory hardliners and a group of right-wing newspaper owners that are happy to undermine the independence of the judiciary. And that hard core holds the initiative, largely because the government lets them. The government response to the attack on judges has been limp; indeed one minister, Sajid Javid, actually joined in. Belatedly the Prime Minister and the Lord Chancellor affirmed their respect for the judgement, but failed to condemn the attacks made by their colleagues and the press, or create any kind of media splash.

This is a tactical error. The government’s best hope in pushing through Brexit is to take the heat out of it all. They had a major victory when Japanese carmaker Nissan was persuaded to keep investing in their British factory. This supported the general idea that the Remainers are stoking up a fuss about not much. Now the Remainers have something new to be angry about: the government’s complicity with an attack on the rule of law. Many liberals will be taking the Brexit slogan “We want our country back” for their own, so disgusted are they about the rise xenophobic and intolerant attitudes. Liberal Democrat campaigners trying to make the Richmond Park by-election about Brexit must be delighted.

Still, Remain supporters need to be careful. As yet there has been no major shift in public opinion. Most of the public will be unmoved by this rather abstract debate about the British constitution. That shift will only arise when there is a concrete threat to jobs, living standards and public services. Most voters assume the country will muddle through without too much damage. The government’s victory on Nissan was so important because it staved off one such concrete threat.

Incidentally that leads to an intriguing question. How was the government able to make the assurances it did to Nissan? It suggests that it is in fact aiming to achieve a version of “soft Brexit” with the UK staying in the EU customs union, and remaining subject to some EU jurisdiction – while the mood music is pointing to “hard Brexit”. This would explain why the government is so reluctant to say much about what it is trying to do.

But raising the political temperature on Brexit is a bad idea. The government needs to tread a middle course between the Brexit extremists and those that seek an opportunity to reverse the referendum result. A firm rebuke to those attacks on the judges would have been just that. And now it is too late.

 

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We need a UK Constitutional Convention and a Federal government

What happens when your normal existence comes under threat? We seem to alternate between two extremes. One is paranoia. We see this now with Jihadi extremists, where many Britons see the threat of terrorism everywhere, and are happy to vastly expand the surveillance powers of the state so that any plot can be intercepted before execution. I remember a similar paranoia over Soviet Communism in my youth, in the 1970s. But the more common response is denial. We keep going with our ordinary daily lives without thinking about it, dismissing the threat with half-baked arguments that don’t stand up to scrutiny. We see that with the threat posed by rampant global carbon emissions.

Perhaps to the  English the possibility that the United Kingdom breaks up, with Scotland ploughing its own furrow, does not have the sort of existential quality of global meltdown, communist takeover or even terrorist attack. That may be so, but we underestimate its significance at our peril. If nothing else, if the Scots vote Yes in their referendum in September, the negotiations over separation will dominate the political agenda for at least four years. The Union is so deeply embedded into our governance that separating the countries will have a host of unforeseen complications. And the complications that are clearly visible are bad enough: membership of the EU and NATO; Britain’s nuclear weapons; managing the currency; spitting the national debt; splitting oil revenues; and so on. Our governing classes will scarcely have time to do anything else, while the publics on both sides of the border will be inflamed by populists claiming that their country is getting the rough end of the deal. And at the end of it all England will be dominate nonsense of a country that can’t convincingly even lay claim to its traditional names of “United Kingdom” or “Great Britain”. It will be left with a tangle of Imperial era commitments, from membership of the UN Security Council, to responsibility for the Falkland Islands, without the joint enterprise of Scotland and the other British nations that brought these about. The loss of international prestige would be incalculable. It is often said that the loss of Ireland was the first step in the break up of Britain’s empire – the point at which Britain’s sense of confidence and authority fatally started to ebb away. The departure of Scotland would end aspirations to be even a second-rank world power, and no doubt poison the country’s politics for generations to come.

And yet the British establishment is taking this threat very calmly. People talk about the referendum here in England, but with little sense of its implications. And when conversation moves to next year’s General Election, the impact of the referendum on our politics is quickly forgotten. The half-baked argument used to dismiss such thoughts is that a Yes vote looks unlikely. But the Yes campaign has all the momentum. The No campaign depends on narrow, conservative arguments, put forward by second-rank politicians. Even if the Noes win, the threat of breakup remains. Supporters of the Union, on both sides of the border, need to recover the initiative. There is no more important issue in British politics.

Let us try to understand were the threat is coming from. It started in the 1970s as North Sea oil was discovered, and gave the Scots a sense that their country could be economically prosperous, even as industrial decline blighted it, along the rest of the UK outside the southern counties of England. The establishment response was Devolution: the setting up of a separate Scots parliament, to which progressively more power has been given. This may have delayed the crisis, but it has not solved it. In devolved Scottish politics the Nationalists field their best politicians against those of the unionist parties of second and third rank. An ambitious Scots politician who belongs to the Labour, Liberal Democrat or Conservative parties seeks to get elected to the Westminster parliament to make his or (less commonly) her career there. Here they happily take a hand in running England’s affairs. Gradually the Nationalists have come to dominate local politics in Scotland.  Meanwhile at Westminster one of two situations occurs: a Conservative led government is elected that the Scots did not vote for, or a Labour government which does not have a majority of English MPs. This inflames politics, especially north of the border when there is a Conservative government.

At the heart of the problem is the way in which the ruling Westminster elite sees itself. The British Parliament, with especial reference to the House of Commons, is sovereign. It secures the consent of the people at General Elections, but in between times its authority should be unchallenged. It is an evolution of the medieval and Renaissance idea that kings should be absolute rulers. Our elite becomes troubled when authority seeps away to institutions such as the European Union under treaty obligations. But it would rather not think about the idea that Parliament itself lacks the popular consent that its sovereign status implies. The Scots challenge this legitimacy openly, but increasing other British people feel it too, even if they articulate it less well.

There is an obvious solution: federalism. In a federal structure sovereignty is shared between the different levels of government. The higher levels are not self-evidently more “sovereign” than lower ones. The best known example is, of course, the United States of America. There the states are not the artificial creations of the national government, only allowed to do what the national government says. In theory it is the opposite, though in practice it is a jockeying match, arbitrated by a written constitution and the Supreme Court.

In Britain this means that you would have a federal, UK government, with a number of state governments below it. What would those states be? Scotland, Wales and Northern Ireland, obviously. But what about England? Many people, when first considering the problem, want to establish a series of new regional states in England, of approximately the same size as Scotland, in population terms. But this really doesn’t fly. That is not how the English view themselves; such localised identities could emerge in time. The great conurbations of London, Manchester, Birmingham, Leeds, Liverpool, Newcastle, Sheffield and Bristol show some signs of developing such identities. But what of the rest? Cornwall, though rather small in size, has a sharp (and non-English) identity and has a strong claim for statehood. But elsewhere it means drawing arbitrary boundaries which, even if they follow ancient identities like Wessex, Mercia or Northumbria, really won’t work. That is not how modern England is.

The English state would have to be England itself, with maybe only Cornwall separate. That presents some big problems of its own, of course, but I think these are more soluble than muddling on as we currently are. I will only say that the critical thing is for the seats Federal and English parliaments should be located in different cities. Only then will the separation between the two be properly credible.

There are two main ways in which such a system might be implemented. The best is for the current British Parliament to become the new English Parliament, with a new Federal Assembly located outside London, operating within a new, written Federal Constitution. But such a step is too revolutionary for our country, that likes to evolve its constitution in small steps. I suspect the number of minor legal complications that would follow would be almost as bad as those that would flow from a Scottish breakaway. I would still vote for it if offered the chance – but grumpy as the British electorate is, I don’t think they are in such a revolutionary mood.

So the other way forward is for the British Parliament to downsize and become the new Federal legislature. The House of Lords might be replaced by a Senate with members appointed by the state legislatures (which would need to incorporate sub-state governments in the case of England, perhaps). A new English parliament and English First Minister would be established, located outside London. The whole thing would be constitutionally protected by a British Bill of Rights, which might, for good measure, establish the limits of European authority, in the way that Germany’s Basic Law does. That is revolutionary enough. But I can’t see any middle way between this and the current muddle.

And how to implement such a radical proposal? The first step must be to call a Constitutional Convention in the wake of the Scottish referendum result if there is the expected No result. And perhaps even if there is a Yes and a backlash as the difficulties emerge (although if that happens, only the first of my two solutions would be viable). That is what English politicians should be calling for.

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Time to think of England

This week it was St George’s Day, a time when we in England reflect on what it is to be English – a few of us do anyway, especially when St George himself was so un-English. There was also a small flair in the ongoing campaigning over Scottish independence, when the British government poured cold water on the idea of a currency union between an independent Scotland and the what is left of the UK (which would no longer be a united kingdom…). As I have written before, it is a conceit that there is a Scottish problem for the UK. The issue with Scotland is just an aspect of the English problem. England so dominates the union that governance of England and governance of the UK get confused. We need to look at remaking the constitutional arrangements for the whole UK if Scotland, as expected, decides to stay in the union at their referendum next year. But how?

At this point it is all to easy to craft elegant new constitutional solutions to solve the problem. Alas, that is not how the British constitution works. We are deeply conservative. Any proposed change throws up a series of opponents, who are able to stoke up fear of change. The AV referendum in 2011 was a very painful experience for people who thought that sensible constitutional reform, or even sensible debate about reform, was an easy matter. So where does that get us?

First there must be a crisis. Most people must think that the current situation is intolerable. The crisis is presented by the Scots. Of course, if they vote to stay in the union, most English politicians will want to think that it is an end to matter, and we can go on as before. I don’t think many Scots think this, though. Even holding the referendum is a shocking event, showing that consent for the current British constitution is breaking down. Most think that if they lose the referendum, the Scottish National Party (SNP) will respond by pressing for “Devo-Max”, which will then look like a sensible middle way. Devo-Max implies a much greater level of devolution to the Scottish Parliament, leaving the UK responsible for just defence and foreign affairs in some readings, like Gibraltar, perhaps. Why, then should Scottish MPs have so much say in who governs England? This question is an irritant now, but it would become a much bigger deal. We need to head this problem off with a new constitutional settlement for the whole of the UK.

Second, messing with the sacred sovereignty of the House of Commons is to be avoided. To some people, including me, this is pompous twaddle. A parliament’s fitness for purpose is not derived from history, but from what it actually does. The people should be sovereign. But the sheer weight of traditions and interests that centre on the Commons is not to be trifled with. This body needs to rule all of the UK. Restricting its scope to England, for example, and having a new Federal Assembly is going to get nowhere.  And after the AV fiasco, changing the electoral system is off the agenda too.

And thirdly, there needs to be something for everybody in any new settlement. Each of the three main British political parties, and their backers should see at least some benefits, to weigh against inevitable threats. There will not be a consensus, but any new proposal must have broad support from a cross a wide spectrum.

And so to the English problem. In order to balance out devolution to Scotland (and to Wales and Northern Ireland) there must be an equivalent devolution to England. To many the sensible thing to do would be to establish English regional governments, of the same sort of size as Scotland, to give an overall shape resembling Spain or Germany. Elegant an idea as this may look, though, it has no legs. Local traditions in England have been so hollowed out over the centuries, unlike in Germany or Spain, that there is little in the way of tradition to build on. The English administrative regions, used for things like elections to the European Parliament are mostly named after points of the compass. London and Yorkshire, may be viable, but it ends there. Either identities are too diverse (the Celtic Cornwall compared to the Saxon Devon, for example) or else there is very little identity at all (where does Northampton belong to?). Constitutional change is hard: this is too hard.

Which leaves us with an English Assembly. I used to dismiss this as a nonsense, but it is growing on me. This should have equivalent power to the Scottish Parliament, whatever those are. That means an English First Minister and cabinet, control of education and the NHS, and, surely, over large chunks of tax. The bold, but necessary, step is to say that the capital of England should not be in London. Having it in the same city as the UK capital will make its identity and authority harder to establish, especially since London has its own mayor, making the  layer of government very crowded. Moving the UK Parliament and the paraphernalia of government out of London is too much as well. Besides there is a real grievance in much of England that too much of the establishment is based in London. Where? Geography points to Birmingham or Coventry; others may have better ideas. An old and grand but under-utilised Victorian classical building would be good to use as a base. Building a brand new building is asking for trouble. Like the Scottish Parliament and Welsh Assembly, it should be elected under proportional representation (PR).

So what would be left in London? The House of Commons would stay, but needs to be shrunk. It probably doesn’t need more than a couple of hundred MPs, but no doubt a compromise of 400 or so would have to be settled on. It is difficult to get turkeys to vote for Christmas. The House of Lords should be reformed too, though it is tempting to let it collapse under its own absurdity after last year’s reform fiasco. The UK cabinet would be shrunk. The Treasury, Foreign Office and Defence would stay much as is, as would much of the Department of Energy and Climate Change. But others would need to be shrunk down.

So how to sell it? To those in the north of England or Midlands, breaking the Whitehall stranglehold would be an advantage. Frankly this is a big attraction to me, even in London. Even under PR, the Conservatives would have a good stab at dominating the English government. Both they and Labour would benefit from PR giving them a political base in large swathes of the country where they are in danger of extinction – as PR has saved the Tories in Scotland and Wales. The Lib Dems would benefit from PR too, though they might lose out badly in the bigger and redrawn constituencies for the House of Commons. This losing out of the Lib Dems might be an attraction to both Labour and Conservatives, though – they might feel that they have a better shot at an overall majority for the UK if minor parties would struggle in the larger constituencies. Such are the sorts of calculations upon which British politics turn.

Food for thought, anyway. The next step, though, is to start talking up the idea of a UK Constitutional Convention if the Scots vote to stay in the union. The idea of an English assembly does have opinion poll support, though no doubt iti s very soft. But in small steps the idea can grow momentum.

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The House of Lords is broken – now’s a good time to fix it

The denial stage is over.  Opponents of Lords reform have woken up to the Government’s plans and are mobilising.  But the reform plan is far from dead.

What’s the problem with the House of Lords?  It chalks up the odd success in challenging and revising legislation, without challenging the democratic credentials of the Commons.  But that doesn’t mean “It ain’t broke, so don’t fix it” – the argument used against regulating the banks more tightly before the financial crisis.  The fact is that the Lords is not up to its job and things are getting worse.

Appointment to the House of Lords is one way traffic.  Once appointed, almost nothing short of death deprives you of the right to take part in the legislative process.  This gives rise to two practical problems, never mind democratic legitimacy: size and accountability.  There is no one-in-one out rule for the Lords.  Political leaders regularly appoint new members to maintain political balance and to make sure that there are enough peers young and enthusiastic enough to do the hard graft – not forgetting the need to offer consolation prizes to victims of the political process.  There are now over 800 – compared to the Commons which has 650, with a plan to reduce it to 500.  This is a bit of a joke.

But this is less of problem than it might be because of the second issue: there is no accountability for what peers get up to after they are appointed.  That means that most of them don’t do much at all.  Many just turn up on the big occasions, make a speech, vote, and then clear off thinking that they have added to value to the legislative process.  But the Lords’s key work is detailed revision – this is the bit people say works.  Legislation that leaves the Commons often lacks detail or hasn’t been thought through.  This revision doesn’t happen in set piece debates.  It happens in and around committees, and requires a serious commitment of time – you need to get into the details, take evidence, and so on.  That the Lords does this as much as it does is one of the wonders of the British system, but only a tiny minority of peers actually get involved in this grind, and they are self-appointed, and get little logistical support.  It is distinctly ad-hoc and amateur.  This creates a lot of charm, that seems to bewitch many of those that come into contact with it But it really isn’t up to the job in the increasingly complex world of legislation.  And its failures are largely invisible.  Poorly thought through legislation happens all the time – the last government had to introduce a new act on criminal justice almost every year, since they kept failing to nail the problems – but we blame ministers and the Commons for this, not a House of Lords that was out to lunch.

So the Lords (or whatever else we might call a revising chamber) needs to be more accountable and more professional.  That means appointing professionals to it with some process of reporting back to those that appoint them, and for limited terms.  That has to mean elections of some kind.  This is what the Government’s reform is trying to do.

And that is all it is trying to do.  Many of us would like a new constitutional settlement for the United Kingdom of Great Britain and Northern Ireland, based on a constitutional convention.  The primary purpose of such a convention would be to resolve the status of the country’s constituent parts, in the face of demands from many Scots for independence.  A reformed upper chamber could play a role in any such settlement.  But we aren’t going to get a convention, because our political class doesn’t see the need, and the public at large seems indifferent – in England especially.  Meanwhile the Lords bumbles on in its current form.

Will the proposed reform do the job?  I don’t know.  It’s a messy compromise because the government needs to build consensus.  The important issue is to break through the untouchability of the Lords’s status, and bulldoze aside the biggest roadblock to change, which is the unelected Lords themselves.  We can amend later the bits that don’t work as well as they should.

And now is a good time to take the issue on.  The Government has passed most the new legislation it wanted to; it has three relatively uncluttered years to push things through.  Of course the economy is in a mess, but, God help us, we don’t need our parliament to pass lots more laws to help us out.  The economy is a matter for the executive, not the legislature.

Will it work?  It stands a better chance than changing the voting system.  Then the forces of darkness (by which I mean the conservative press and political donors) mobilised against the AV reform, making supporters look weak.  The Conservative Party was united against it.  This reform has the Prime Minister on board.  The forces of darkness have not yet mobilised one way or the other, and may be persuaded to stay quiet, given that upping the temperature could really hurt the Tory party.

But the reform’s supporters may well need to concede a referendum in order to get it through parliament, whatever the rights and wrongs of the issue.  The opinion polls suggest that such a referendum would be won comfortably – but they are near meaningless.  But if the press barons are silent, and a reasonably strong coalition supports them, with important figures from across the political spectrum and and outside it,  then it’s winnable. There’s all to play for.

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