BREXIT AND THE BRITISH CONSTITUTION

Among other things, Brexit is a constitutional crisis. No one in their right mind could wish for what has befallen the British people, yet their constitution did not award them protection. With chaos a reality, nor is the constitution able to rescue the British from misfortune. Damage has been caused to the polity and economy, and to the nation’s standing in the world, that it will take years and years to repair.

Brexit is supposed to be about Parliament’s sovereignty.  Yet, what it has revealed is that Parliament is not sovereign. It took a court case to decide what should have been 100% obvious, that if the country is to embark on fundamental constitutional change, that must be by a decision of Parliament. Through the process, it has been a never-ending battle for Parliament to have any role of decision-making, except to ratify what the government presents to it, if that. The language is astonishing: it is being argued over when and how Parliament will “be given” a right to vote. If Parliament is sovereign and wants to vote, it votes. If someone else (the government) is in a position to “give” it the right to vote, it is not sovereign.

The Parliament that is supposed to be sovereign, does not have the instruments to act accordingly. In a sovereign Parliament, it is for that Parliament to decide how to deal with matters put to it by the government. But Britain’s Parliament is not in charge of its own agenda. A sovereign Parliament can make such amendments as it wants to what the government proposes, but in Britain’s Parliament the procedures are so Byzantine that no one knows what and how the lawmakers can modify what the government proposes.

Brexit has shown that the British constitution is itself without protection. It should not be possible for major constitutional change to be put in motion on the whim of a prime minister, yet just that happened. When, well into the process, the next prime minister decided to call a snap election, that happened in spite of Parliament having legislated (in the Fixed-term Parliaments Act 2011) precisely against strategic snap elections. But Parliament was unable to uphold its own law.

The reason constitutions should have protection against being abused by politicians of the day for strategic reasons, is that it is impossible to undertake major constitutional change without careful deliberation over some period of time. Most written constitutions have provisions that impose careful procedure on constitutional change. The British constitution has no such protections, whereby it has been possible for the crisis to unfold.

The purpose of careful deliberation is to build some reasonable consensus behind proposed changes, and to stop attempts for which no reasonable consensus can be built. Brexit is a crisis of imposing major constitutional change on a population and political establishment against the absence of any semblance of consensus.

Doing that is not only careless but IMPOSSIBLE, as can be seen in a process that has brought British politics to a choice between three impossibilities:

  • Brexit with no deal, which would destroy the nation’s economy;
  • Brexit with a deal, which would demote Parliament to a rule-taker and cause the break-up of the Union;
  • No Brexit, which would disregard the result of a referendum called by Parliament itself.

When the dust finally settles, in whatever way, it would seem imperative to give very serious through to improving a constitution that has so badly let its population down.

HOW SHOULD WE PAY FOR POLITICS?

Political parties and campaigns depend for funding on private donations, from businesses, from unions, from individuals. That is not working well. It is a source of widespread corruption and gives monied interests control over public policies. Is there a better way?

The American Supreme Court has decided that it would be a suppression of freedom to deny citizens the right to support political causes and candidates of their liking financially, and this principle seems to have broad support in jurisprudence in America and elsewhere. If we accept that, it still does not follow that there is a right to unregulated political use of private money. Such a right does not exist even in economic markets, where monopolistic use of financial resources is generally banned. That should be the case all the more in political “markets,” where the principle is, as it is not in economic markets, that each participant should have the same influence.

There are arguments for public funding of political parties and campaigns. Democracy is a public good and should be funded publically. Some European democracies do have extensive public funding, which to some degree does discourage some forms of private funding, for example from businesses. But there are drawbacks. One is that it is rarely consistent. For example, the ability of trade unions to fund social democratic parties has usually not been restricted in the way other forms of private funding has. Another drawback is that public funding has tempted established parties to fund themselves lavishly from the public purse in a way not available to up and coming parties. This has been visible in for example Germany and Scandinavia.

Some of us have for some time been suggesting alternative ways of arranging public funding, mainly some variation of letting public funds be distributed through the hands of voters, for example in the form of vouchers which voters would distribute to parties or candidates of their choice. That might, it has been thought, both shut down transgression and put a new power of equality into the hands of voters. This may have some theoretical merit, but is, in truth, not an idea that has found much favour and taken hold.

Which leaves us to search for some arrangement which would respect the rights of citizens to support political groups or candidates with money but have that regulated against the formation of monopolistic powers in the political market.

Monopolistic power arises if one or a few actors are able to obtain decisive influence, or collude to give themselves such influence, and when there is a direct connection between donor and recipient so that the donor is able to extract favours from the recipient on the threat of withholding funding.

But political monopolisation could be prevented in ways that are compatible with anti-monopoly thinking in respect to economic markets. That could be done, firstly, by upper limits on the size of any individual donation and standard anti-monopolistic regulation against collusion. Upper limits would not need to be draconian, only enough that an individual donor could not make himself dominant. Furthermore, it could be prevented by regulations whereby recipients would not know the identity of donors, as in economic markets buyers and sellers are (mostly) unknown to each other. A donor who wants to support a group or candidate does not for that purpose need to make himself known by name to the group or candidate in question. That is only a requirement if his intention is to purchase influence.

Imagine a clearing house into which citizens could put money earmarked for some group or candidate. That money would come out of the clearing house to the group or candidate in question, but without the nametag of the donor. Of course, the donor could still let the recipient know but as long as the contribution is not of monopolistic size that would do no harm. No donor could demand that his identity or donation be made public, and no recipient could demand to know who their donors are and what they have donated.

Now, if we think people make political donations in order to buy influence, why would anyone under such regulation put up any money at all? The first answer is that people are not necessarily out to buy influence. That may be the case for the big donors but cannot be the thinking behind smaller donations. It is common enough that people donate money to causes they are interested in, political and non-political, without any idea of return to themselves. President Obama pioneered the strategy of many small donations to great effect in his campaigns.

Furthermore, with a safe regulatory regime, citizens would not only be allowed to donate but should be encouraged to do so. If this were the way for politics to be funded, citizens would have to contribute in order to have a working democracy. We want democracy, it needs money to run, we have to put it up. It would become the done thing.

In addition, I would recommend direct fiscal encouragement. Let the government pledge to match each private donation with an equivalent donation from the public purse. Each individual contribution is thereby worth twice as much as the citizens pays up. Matching public monies could follow the private donations to the intended recipients. Or, as would be my preferred scheme, they could go into funds to support local civil society activities, including political party-like activities to facilitate the formation of new political groupings. My contribution, then, would first support a candidate of my choice and then, in addition, civil society activity in my community. That should be a pretty good deal for politically and socially interested citizens. The distribution of local funds would be in the hands of an appropriate local agency or committee under local government authority, breathing additional life into local democracy.

WHAT FREEDOM MEANS – WHEN YOU DON’T HAVE IT

I am reading a great book, just out, Roller-Coaster, the historian Ian Kershaw’s story of Europe since 1950.

“When the [Austrian] border was opened, on the night of 10-11 September [1989], thousands of East German citizens voted with their feet, crossing through Hungary into Austria, then from there into the Federal Republic of Germany. By the end of October 50 000 had left. They also took refuge in the embassies of the Federal Republic in Budapest, Prague and Warsaw. On 30 September the West German Foreign Minister, Hans-Dietrich Genscher, announced that he had successfully negotiate with Moscow and East Berlin to transfer 60 000 GDR citizens to the Federal Republic. Between 3 and 5 November [when restrictions on travel to Czechoslovakia were lifted] more than 10 000 crossed the Czech border, en route into West Germany. On the evening of 9 November [when rumours spread that direct passage into West Berlin was permitted], thousands of GDR citizens headed for the Wall. The border guards tried at first to prevent people leaving but soon gave up. Left sometimes with lipstick on their cheeks, they simply waved the masses through. West Berliners rushed to their side of the wall, embracing strangers, plying their fellow Germans from the east with flowers, chocolates – and bananas (like all fresh fruit not readily available in the GDR). Nearly 120 000 East Germans left for the West between the opening of the Wall and the end of 1989.”

 

BREXIT – WHAT’S DEMOCRATIC?

Jo Johnson, when resigning from the government last week, said it would be a democratic travesty to not have a second referendum. Was he right? Brexiteers claim that, since there has been a referendum, the matter is settled democratically. Are they right?

No, they are both wrong. “Democratic” does not solve the country’s and Parliament’s dilemma.

A policy is democratic if it has been decided by correct democratic procedure. Hence, the referendum was democratic and the follow-up on the referendum has been democratic. But also, whatever Parliament decides at the end of the process will be democratic.

Even if a policy has been decided democratically, that does not necessarily make it a good policy. Democracy gives the people power and makes it less likely than otherwise that their representatives will embark on policies that are not in the national interest. But people power is no guarantee that representatives will not make bad decisions. Democratic decisions often turn out to be unworkable.

The fact that a policy has been decided democratically is not a reason to stick with the policy if it turns out to be counterproductive. Parliament overturns or changes its own democratic decisions all the time.

Britain is set to leave the EU on 29 March next year. If that remains Parliament’s decision, it will be democratic. That may or may not be a good decision but it will be democratic.

If Parliament decides against Britain leaving the EU, that will be democratic. Again, it may or may not be a good decision but it will be democratic.

If Parliament decides on a second referendum, that will be democratic. Yet again, that may or may not be a good policy but it will be democratic.

Parliament is in a terrible predicament. MPs want to behave democratically but “democratic” does not let them off the hook. Asking what is democratic solves nothing. The question before MPs, which they cannot avoid, is what decision is right for the country. Democracy, obviously, does not stand in the way of a democratic Parliament doing what it thinks is right for country and citizens.

HOW DICTATORIAL IS CHINA?

From an interview conducted by the human rights lawyer (in exile) Teng Biao:

“Yes, China is very much like George Orwell’s warning, including in the control of language, control of history, control of the narrative. But they have moved on because they now have technologies that Orwell could not even imagine at the time. And these technologies, these modern technologies, are being used for control in a very sophisticated way by the Chinese authorities. They are in control of the Internet. It was long thought that no dictatorship can control the Internet. But the Chinese dictatorship is in control of it. They are actively using the Internet by engineering the stories that circulate. They are using other technologies, big data systems, facial recognition. All of this in order to control what is happening in their country. This is now very advanced, particularly in Xinjiang, which is a police state of the kind that has never been seen previously. In the last few years, as you well know, the security budgets in that province have doubled year by year. And the control, explicit control there, by old-fashioned means –– police and military forces –– and modern means –– electronic surveillance, is still a kind that has never been seen previously. There has never been control of this kind anywhere in any country before, like the way we see now. We now see it unrolling in China.”

Read the interview in ChinaChange here.

DEMOCRACY IN DECLINE?

“The quality of democracy in the OECD and EU has declined in recent years. At the same time, growing political polarization has made the day-to-day work of governance and thus member states’ capacity to reform more difficult. Related to this is the fact that many governments are less inclined to engage in the broad-based consultation of societal actors during the planning phase of reforms. Governments’ communication abilities and implementation efficiency are also on the decline.

The current issue of the Sustainable Governance Indicators shows some very worrying trends within OECD and EU countries which, given the major policy challenges ahead, may seriously burden them in the future.”

These are the headline conclusions of the 2018 report on “sustainable governance” of the German Bertelsmann Stiftung. This foundation has been running its sustainable governance project since 2011, producing annual measurements of democratic quality, governance and policy performance in 41 advanced democracies (OECD and EU countries). Data is compiled on about 70 indicators for each country, drawing on the best available international statistics and expert assessment. The research team consist of about 100 country and regional experts and six in-house analysts, under the oversight of an international Advisory Board. (Disclaimer: I am a member of the research team.)

Read the full report here.

WHAT’S RUSSIA UP TO?

Last week, British, Dutch and American authorities made public a detailed expose of misdeeds around by the Russian state. Here is an extract from a recent review article on some relevant literature:

Vladimir Putin’s presidency falls in two parts. The first period could be seen as an attempt to impose some kind of order in the Russian state after the collapse of the Soviet Union. But by 2014, the man who had wanted (or so he said) to be a liberal European president had turned against Europe and “the West.”

The oligarchic economy of Putin’s early period was one of competing clans and gangs in a system that left the state with little control. Putin took on this system and by the end of his first period, the Russian oligarchy was consolidated as the kleptocratic control of the state by a single oligarchical clan under Putin.

His Russian state has essentially three resources available to it. The first one is inequality. The nation’s wealth, which is not great, is in the hands of the Putin oligarchy. The second resource is the use of cyber capacity for propagandistic and manipulative purposes. This is a weapon with two advantages: it is cheap and it is effective. And the third resource is ruthless determination.

As seen from the West, the collapse of the Soviet Union was the collapse of Communist dictatorship. As seen from Russia, it was the collapse of the Russian empire. The loss of empire, dignity and respect created fertile soil for nationalistic-fascistic ideas of an alternative Russia.

The relevant ideas draw in part on religious-historical mysticism. “Russia” has evolved from the Kyivan Rus with origins more than a thousand years back in history and from the tradition of Russian orthodox Christianity. That empire was geographical but it was even more to be understood as spiritual, an empire of virtue. Technically the empire has collapsed, but its spiritual legitimacy survives. This, for example, is why the Ukraine cannot be independent and European, because that is not what it is, because it is inescapably a part of spiritual Russia.

The long-term aim is the reconstitution of the physical empire. The short-term aim is to weaken its here-and-now enemies: the European Union, America, Western liberalism, democracy. Since the purpose is noble, noting is forbidden in action: destroying Ukrainian autonomy, undermining the credibility of the European Union, destabilizing the workings of electoral democracy in America, undertaking assassinations on British soil, brutalizing the conduct of war in Syria. Lies and denials are standard.

The Russian state has behind it a weak and unsophisticated economy and a population poor in education and health. Therefore, since Russia cannot be strong, its foreign must be make others weaker. Russia cannot be a builder – so it must be a wrecker.

Read the review article in the Taiwan Journal of Democracy here.