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.)