Constitutional lessons from the past

Walter Bagehot, The English Constitution (1867), Ch.VI – ‘Its Supposed Checks and Balances':

“When the leading sect… in Parliament is doing what the nation do not like, an instant appeal ought to be registered and Parliament ought to be dissolved. But a zealot of a Premier will not appeal; he will follow his formulae; he will believe he is doing good service when, perhaps, he is but pushing to unpopular consequences the narrow maxims of an inchoate theory. At such a minute a constitutional king… is invaluable; he can and will prevent Parliament from hurting the nation…

“[But] the power of dismissing a Government with which Parliament is satisfied, and of dissolving that Parliament upon an appeal to the people, is not a power which a common hereditary monarch will in the long run be able beneficially to exercise.

“Accordingly this power has almost, if not quite, dropped out of the reality of our Constitution. Nothing, perhaps, would more surprise the English people than if the Queen by a coup d’etat and on a sudden destroyed a Ministry… secure of a majority in Parliament. That power indisputably, in theory, belongs to her; but it has passed so far away from the minds of men that it would terrify them, if she used it, like a volcanic eruption from Primrose Hill.”

Bagehot assumes that, because of the limited franchise of the period in which he was writing, “the people” would rarely elect a bad Parliament, so the country would rarely end up with a bad government. Because of the presumed political awareness of the limited electorate, Bagehot assumed that the government would find itself under closer scruitiny from the people upon whom it depended for its continued existance, and that the people’s political will would be based on informed analysis of the issues of the day. In short, that democracy would work, and that the will of the people would prevent an elected tyranny from arising.

Just as we no longer have a limited electorate, we no longer (if we ever did) have a politically-informed or politically-interested electorate. In such a climate, bad governments can secure majorities. In such a climate, “the people” may well be duped through propaganda (government-originated or coming from independent but sympathetic media, like those of dear Mr Murdoch) into supporting government policies which are not in the interest of the nation.

Under the electoral system we still have, a hang on from those early days of a limited franchise and a strictly two-party system where first past the post made perfect sense, it is possible for a government – like our present one – to gain a sizable majority in Parliament without gaining majority support in the country.

In such a situation, thanks to the collapse of the monarch’s ability to dismiss a government already noted by Bagehot 140 years ago, what protection do we have from a bad government with a majority in Parliament? None but hope – hope that Parliament itself may realise the damage that is being done to the country, that it is time to throw out the government.

Even were we to get a petition signed by half the electorate and take it to Downing Street, there would be no compulsion on Tony Blair to ask the Queen to dissolve Parliament and call for fresh elections. Only Parliament has the ability to bring such pressure to bear – yet Parliament (mostly) continues to support him.

Consitutionally, Parliament is our only protection from the whim of the executive; with our current batch of MPs, that protection exists no more than does the right of the Queen to come to our aid. The ability is there in theory, but will never be used in practice – because it is not in the interest of the Labour party to do itself out of office, which would be the near-inevitable consequence of such a move.

And so Blair will continue unabated in his drive to nibble away at our liberties in the name of security; we will all emerge down the line fingerprinted, retina-scanned, put on a database, and facing arbitrary arrest on the whim of the executive – and there is nothing we can do about it.

And that, my friends, is far more terrifying than any of the ill-defined threats that are being used to justify such moves.

Bagehot’s description of the English Constitution is now not just outdated, following the various reforms of the last century, but hopelessly paternalistic. This does not, however, mean that he does not still have many relevant points to make. Of all of them, this, from Chapter VII, is perhaps the post pertinent:

“A democracy will never, save after an awful catastrophe, return what has once been conceded to it, for to do so would be to admit an inferiority in itself, of which, save by some almost unbearable misfortune, it could never be convinced.”

No matter what the government would have us believe, the awful catastrophe has not yet come. Yet Blair and his cronies nonetheless seem to have convinced themselves that our system of democracy is fundamentally flawed.

In this they are right: our system of democracy is indeed flawed. Yet it is not flawed in that the executive has too little power, as they seem to think, but in that it has far, far too much – and that there is no way of checking its excesses save at the all too infrequent General Elections. Less than a year ago we had our chance – now they can do with us as they will for as much as another four years (assuming, that is, that they don’t alter electoral rules as well…).

We need constitutional reform – but not of the kind Blair and co are pushing through with their ID cards, their suspension of habeas corpus, attempts to stifle free speech with the Religious Hatred Bill and to do away with parliamentary scruitiny with the Legislative and Regulatory Reform Bill.

Even were we not faced with an enemy which professes to hate freedom in true comic book villain style, we need not fewer liberties, but more.

(This post follows earlier musings on the constitution here, here, and (mostly) here.)

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  2. Paul said:

    The trouble, I find, when one starts quoting eminent fellows like old Walter, is that it’s terribly hard to find a point of contention, and thus (in the constantly-ego-massaging holier-than-thou aura of blogdom) the comments section tends towards something of a conversational Sahara.

    Which is a shame.

    Top post WB NM

  3. We don’t have any checks and balances. The whole thing relies on the honour system. Always has.

  4. Blimpish said:

    I don’t disagree with the thrust of your post, but I think the situation’s worse than you say – not in an anti-democratic, sinister way, but in the fact that our constitution simply can’t control central government as it’s now become. This isn’t a matter of excess executive power, but excess executive responsibility.

    The House of Commons simply can’t keep up with doing all of its traditional state duties (trade and money, war and diplomacy, law and standards) along with managing all of the features of the modern economic and welfare state. The House is supposed to manage, through committees, around a quarter of GDP (in consumption terms), often in technically complex areas like healthcare; that’s before you get into their role in overseeing the regulation of, say, the financial services sector. How on earth this is supposed to work, I don’t know.

    That’s why we’ve got such things as the Legislative and Regulatory Reform Bill, and before that a range of other innovations (the Deregulation and Contracting Out Act 1994, for example) to reduce parliamentary scrutiny. A lot of this is caused by a genuine wish to transact the business of a large public sector through a constitution set up to run a small one.

    That isn’t a defence of what’s going on, but I think it’s unavoidable given where we’ve got to. The level of management discretion delegated to appointees in the British state is now truly mind-boggling – the members of Boards of Directors, Governors, Trustees meant to provide accountability and oversight must number into five figures by now. Yet none of us really know how they are, and they know that their position depends on Government patronage – which means avoiding failure and toeing the line, rather than succeeding.

    Which is why the constitutional reforms most often talked about – PR, for example – miss the point, if you ask me. Better things would be devolution of whole functions to local or regional political control, with all of the postcode lottery implications; and/or, but certainly more achieveable, a division of the executive between policy and administrative functions.

    As to this:

    “Yet it is not flawed in that the executive has too little power, as they seem to think, but in that it has far, far too much – and that there is no way of checking its excesses save at the all too infrequent General Elections.”

    What’s worse is that they continually seek to expand powers when they seem incapable of using the ones they have in any meaningful way. The classic recent example is their justifying the ‘glorification of terror’ provisions by the need to act over the Danish cartoon protests, which seemed well within the current reach of the law.

  5. Paul said:

    What’s worse is that they continually seek to expand powers when they seem incapable of using the ones they have in any meaningful way.

    Speaking of which (although slightly off-topic), given that the IRA were much harder than the current rucksack-waving al-Qaeda fellows, did we not have enough laws to deal with this sort of nonsense already? (he asks, genuinely inquisitively, not knowing either way)

  6. Cedalion said:

    I think that we also need to take into account two other factors in all this. One would be the role of rolling 24-hour News coverage which creates an insatiable demand for something, anything to stick on the TV screens, which is too much of a temptation for a media-savvy Government desperate to dominate the news agenda. The other factor that really needs examined is the Cult of the Personality that is evolving as a result of the lack of real difference between the main parties. Both these factors I think have significant influences in driving the authoritarian legislation, the need to be seen to be tough, acting tough, and being tougher than the other guy. We may need to account for these when we are formulating any collective action.

    In relation to Paul’s question of pre-existing terror legislation, yes, what existed was already tough, and efficient. Funnily enough, there were a lot of Labour MPs who were dead set against that legislation while the Conservatives were in power. There is only a certain amount that you can legislate for anyway, as no matter what laws you enact, you can’t stop all the bombs.

  7. Jonah said:

    Presumably the IRA’s reputation (don’t know how deserved) of ringing warnings through and allowing evacuations made a difference. There were more terrorists in by and large a smaller area (mostly Northern Ireland), so easier to catch. “Al Qaeda” and their sympathisers, emulators, cohorts, etc., are more deadly in their use of suicide bombers without any kind of warning, and perhaps not in the same numbers within the UK as the IRA. Just a thought, likewise off topic.

    The trap that the government has fallen into is to look at this the wrong way. Rather than legislate to deal with a demonstrable problem, it’s come out with some pretty draconian legislation to deal with a problem that’s hard to see exists at all – the UK is not in the midst of a sustained suicide bombing campaign, yet this seems to be the premise of the legislation. It has behaved in a wreckless way with our civil liberties, squandering them, rather than admit to and deal with the root cause of any terrorist action: whether you were for it or against is, in part it’s due to (but not restricted to) the UK’s involvement and collusion in the US’s invasion and occupation of Iraq.

    That all said, the problem is an old one with our system of government, which is that there has never been an effective check on the power of the executive branch, coupled with an elevetoral system that’s antiquated.

  8. chris said:

    and/or, but certainly more achieveable, a division of the executive between policy and administrative functions.

    Too late. There used to be a division of responsibility between ministers and their political staff on the one hand and the permanent civil service (principally administrators) on the other.

    Guess who kiboshed that?

  9. Blimpish said:

    Chris: not quite as simple as that. The Civil Service was created as a bureaucratic partner to advise on policy as well as to implement it – that’s why we have the generalist tradition. As the politicians have relied more and more on their own advisers, the Civil Service have been forced into administrative roles for which they are often not that well equipped, and still report only through Ministers. A genuine division between policy and administration might start with us accepting (because it’s been happening since the 1960s) the politicisation of policymaking, but following through on the ideas behind the Next Steps reforms that have been lost on the way – putting all delivery functions into non-departmental agencies, and giving those agencies more independence under parliamentary scrutiny.

  10. Bob B said:

    Blimpish – The predictable downstream problem with splitting the policy making function from the administration-cum-implementation functions in the civil service and accepting the open politicisation of the policy-making wing is that each will openly and automatically blame the other wing for all policy failings.

    Closer followers of the history of proclaimed “leftist” tendencies may recall that the time-honoured traditional excuse for all failings of the nationalised industries – when we had them – was that the “wrong” people were (invariably!) put in charge of running them. If only those with the (politically) correct convictions, commitment and enthusiam had been put in charge, the nationalised industries would have functioned wonderously – or so the familiar line went, believe me. In those times, we never got on to the stage of recognising that state ownership of business is not essential for securing government objectives or “the public interest”. Indeed, the potential benefit of separating ownership from what is required of key public services is precisely that governments have to be explicit in stating their expectations of performance and the micro costs of operations quickly become more transparent.

    The case for keeping policy making and the implimention wings together in the civil service, as well as for maintaining the tradition of political neutrality, it that those who devise policy options remain accountable for their feasibility. Blame for failings can’t be simply brushed off as all due to that other lot.

    Heaven forbid that any of this should be construed as suggesting Britain’s civil service is without blemish. About 20 years back a senior civil servant remarked to me in a personal conversation that the public is most often only acquainted with that part of the civil service which is least well paid. The public, understandably, generalises from that experience. That’s worth remembering.

  11. Bob – the age-old “bad counsel” excuse, eh? A familiar excuse of all those who are desperate to look for failings of the executive throughout the ages.

    As to the rest, it’s too late and I’m too drunk to formulate any meaningful thoughts at the moment. Perhaps on the morrow.

    (But then again, I’ve just borrowed a huge pile of H.L. Mencken off a mate of mine, so I may be absorbed for a while. Other than his take on FDR, he seems like my kind of chap. Don’t know why I’ve never read more of his stuff before…)

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