On Unwritten Constitutions and their implosions

Boris Johnson has detonated a bomb under the constitutional apparatus of the United Kingdom. The prime minister’s request to the Queen to suspend parliament for up to five weeks, ostensibly to prepare a new legislative programme, is without modern precedent. It is an intolerable attempt to silence parliament until it can no longer halt a disastrous crash-out by the UK from the EU on October 31. The seat of British democracy, long admired worldwide, is being denied a say on the most consequential decision facing the country in more than four decades. So, too, are the British people — in whose name Mr Johnson claims to be acting. It is time for parliamentarians to bring down his government in a no-confidence vote, paving the way for an election in which the people can express their will.

Britain’s representative government is an exercise in deliberative democracy which involves discussion, negotiation and inevitable compromises. It vests the power to take decisions on behalf of voters in MPs, and allows them to deliberate on matters of detail — and in the case of Brexit, the most complex demerger in postwar history, detail matters. As John Stuart Mill wrote of representative democracy: “Their part is to indicate wants, to be an organ for popular demands, and a place of adverse discussion for all opinions relating to public matters . . . and, to check by criticism, and eventually by withdrawing their support, those high public officers who really conduct the public business.”

History has shown that charlatans, demagogues and would-be dictators have little time for representative government. They seek ways around parliament before concluding it is an inconvenience. Mr Johnson may not be a tyrant, but he has set a dangerous precedent. He and the cabal around him who have chosen this revolutionary path should be careful what they wish for. The prime minister’s protestations that he is doing nothing abnormal are as disingenuous as the claims plastered across the bus from which he fronted the Leave campaign in 2016. Proroguing parliament ahead of a Queen’s Speech is established procedure, but for one or two weeks, not five. A temporary recess during September’s party conferences is normal — though some parliamentary business continues even then. A brief prorogation could have been timed to coincide with conference season. There is no legal or administrative justification for a complete five-week cessation of parliament’s activities ahead of a Queen’s Speech. Mr Johnson is using constitutional chicanery to thwart a parliament that he knows has a majority against his chosen policy...

If Mr Johnson’s prorogation ploy succeeds, Britain will forfeit any right to lecture other countries on their democratic shortcomings. The UK’s constitutional arrangements have long relied on conventions. The danger existed that an unscrupulous leader could trample on such conventions. That has not happened, in the modern era, until now.

Parliamentarians must seize their opportunity next week to assert the will of the Commons against that of the prime minister....The overriding priority, however, must be to safeguard British democracy.

Mr Johnson might seek to ignore such a vote and try to hang on until after Brexit. This would be an even greater constitutional affront than his actions this week. It would confirm that Britain has a despot in Downing Street. The standard path for governments facing parliaments that prevent them from implementing their policies is to take the matter to the country. The prime minister might then stand on a “no deal” platform, potentially in a pact with the Brexit party. If he won, Britain would have to respect the result and live with the consequences. Opposition parties would have to use their own strenuous campaigning and electoral pacts to prevent such an outcome. Mr Johnson is framing the current battle as one between parliament and the people. If he is confident of the people’s backing, he should be ready to test this with voters in an election — rather than making a cavalier attempt to frustrate the parliamentary democracy that has been the foundation of Britain’s prosperity and stability. Editorial Board, The Financial Times.

There are people who would welcome an end of lecturing of others by Britain. For example, I have friends who think Britain has never come to terms with its history of conquest and colonialism and who support Brexit on the grounds that it would reduce its role in the world and become a normal mid-sized country stripped of any pretense of grandeur and significance.* My fear is that such people underestimate how nasty life in a mid-sized country can be when there are few means to stabilize its democracy and stabilize its (low growth) political economy. The Pax Americana during the cold war and the EU since were means toward such (relative) stability.+ The UK's economy is a boom-bust one (driven by real estate, finance, and oil); Brexit will only enhance that.

I had to chuckle when I saw the quote from J.S. Mill. There were times when Mill would be thought too socialist for the Financial Times. The quoted passage is from a Considerations on Representative Government (and, perhaps this is mere coincidence, is highlighted on Wikipedia). I have blogged (recall) about and taught that book (and recall this prescient post), and, while Mill is deservedly a patron saint of modern liberalism, I think of Mill's defense of parliamentary democracy as rather qualified (and (recall, alas, rather) unfortunate) in two senses, to simplify: (i) he thinks (recall) that smart people should be over-represented in parliament (and some nations as of yet ill-suited to such experiments): (ii) he sees the role of parliament primarily as a debating body.  The chapter from which the Financial Times quotes is, in fact, dedicated to defending (ii). This is not to deny that he also claims (iii) a watch-dog role such that when "the men who compose the government abuse their trust" they should be expelled "from office." But he also claims that parliament should let those chosen to govern, govern. 

For, while I agree with the unease, if not outrage (although not some of its language),++ expressed by the FT, part of the debate is indeed to what degree Johnson's cabinet can govern while parliament does not trust its direction. And, while undoubtedly there are exceptions to the following claim: the British parliament does not, in general, set the agenda for the government. There have been periods before when it has not been uncommon to claim that the UK facilitates parliamentary dictatorship. We are discovering that by making it more difficult to dissolve parliament and to get rid of a cabinet, the fixed term act has strengthened those tendencies.  

The prime minister is surely right that he cannot govern when a parliamentary majority exerts itself against his agenda. And he is surely right that the only way the impasse surrounding Brexit can be broken is when MPs and the country come to believe that only two options are likely. For the present impasse is caused by the fact that all sides (hard Brexit, pure remain, and Brexit primarily in name while giving up power in the EU) believe they can play to win instead of playing to reduce downside risk. His current gambit will force people's hands before long. The prime minister is often compared to President Trump. But the better comparison is with the (more recent) President Bush who rolled the dice with a touch of recklessness (and deception), but in so doing tried to shape destiny. (In addition, both men were greatly underestimated.) Bush's decisions have not turned out so well.

The more important problem in the FT's argument is that Johnson's actions are the effect of the implosion of the British constitutional apparatus not its cause nor trigger. For, the cause of the implosion was the (reckless) referendum called to silence a (then) minority within the ruling party (which has generated a set of consequences such that we are now in a position that the Editorial Board of the Financial Times accusing a one-time-business-friendly Tory Prime Minister for endangering British democracy and for taking steps down the path toward tyranny!) The constitution could have been saved if the two main parties had offered the voters a clear contrast in the subsequent (hubristic, but necessary) election called by then prime minister May. But while the referendum was won on a pack of lies, the 2017 election was a conspiracy of silence and strategic ambiguity. 

The old British constitution relied on a set of myths in full display in the FT editorial. One of these is that the British parliament is a great deliberative chamber "which involves discussion, negotiation and inevitable compromises." Anybody who has watched the former Prime Minister May's clumsy inability to forge a majority for her withdrawal agreement, or who is watching Labour, Lib Dem, and SNP being focused on undermining each other right now [despite purportedly agreeing that hard Brexit must be prevented], will realize that the British political system is populated by folk who have little first hand knowledge of a culture of compromise. This is no surprise in a winner takes all political culture in which MPs are increasingly thought of as party functionaries (recall).

I have been saying since 2016 that we are witnessing the implosion of the British political system.. I have had a tendency to attribute this to the quality British political elites; I  have been slow to grasp that this is a side-effect of the implosion of the British constitution. Because the parliamentary Tories risk electoral annihilation if they undermine their prime minister, and so will not fight to preserve even nominal parliamentary sovereignty, the odds are now high that British political life will be very turbulent the coming years. Because the British political elites and intelligentsia are so complacent about the robustness of their democracy, I fear that they are unprepared for a leader who is willing to cross the Rubicon and sideline the significance of parliament. 

 

 

*If you recognize yourself and wished to be outed, I am happy to give you credit for this!

+Yes, I am familiar what happened to Greece inside the EURO and EU; to Hungary and Poland, etc. I agree the status quo is very imperfect. But now think of political life in counterfactual Hungary and Poland outside the EU.

++This is not tyranny or, as has been suggested elsewhere, a coup.