OPEN LETTER TO PARLIAMENT

Dear Members of Parliament,

Your three years of torturous work have brought you to an unwanted conclusion: that Brexit will not happen. The balance of opinion in Parliament is that, given the referendum, you should deliver Brexit. Your conclusion, then, is not because Brexit is undesirable, but in spite of it being desirable. You have not yet articulated this conclusion in clear language, a difficult step to take, but this is where your deliberations have come to. The European elections, pushing the country and Parliament deeper into division, should be the catalyst.

There are two ways to Brexit. One is that Britain leaves the EU on WTO terms. You have considered this very carefully, on several occasions, and decided it is not possible. Parliament is not going to vote to cut British people’s standard of living. This door is shut.

The other way is with a deal. Here, you have looked behind every leaf and turned over every stone, and found no avenue. The reason, not easily visible behind the Parliamentary fog, is that no deal is available – Mrs. May’s deal, Labour’s customs union, Norway plus, whatever – that does not mean Parliament demoting itself to a rule-taker. It is not possible for Britain’s ancient Parliament to commit to abiding by laws that Britain has had no share in making. This door cannot be opened.

In the process, serious costs have incurred to our political system. Britain’s constitution has been steadily deteriorating. The bond of trust between Parliament, people and government is broken. It is often argued that unless this or that is done, people will never trust Parliament again. Too late, ladies and gentlemen, the damage has already been done.

The second cost is that the Union of the United Kingdom is falling apart. Scottish nationalists, exploiting the constitutional void, are pressing for a second round on independence. As things stand, they will now win it – and the United Kingdom will be no more.

Parliament does not want to sit by and see the constitution break down, the country being ungoverned, and the union fall apart, but has not been able to arrest the downward spiral. That, Members of Parliament, you must now do. When the nation is deeply divided, it falls on Parliament to decide. When procrastination means more damage, it falls on Parliament to act.

Many of you, probably a majority, are coming to the view that if Parliament cannot decide on a Brexit solution, there should be a second referendum. Better that you untie the knot yourself; better for the country, better for the constitution, better for Parliament. Very difficult, of course, but much better.

The first step is to articulate the conclusion that Brexit has come to a dead end because it cannot happen. This will be painful but it has to be done. The more you wait, the deeper the damage and the more the pain.

The second step is to recognise that the country is in a crisis that politics as usual is unable to resolve. This we see before our eyes every day; the country is not being governed. A new party government under a new prime minister, and the paralysis persists. You should now form a temporary caretaker coalition government. This government, under the leadership of none of the party leaders and composed of middle of the road MPs from both sides, should be tasked with getting the wheels of government turning again, recalling Article 50, re-establishing relations with the EU, and preparing for a general election next year.

Yours respectfully, Professor Stein Ringen, King’s College London

VENEZUELA, BRITAIN AND DEMOCRACY

In Venezuela, Nocolás Maduro is the democratically elected president. It then follows that he is the legitimate president and that it is undemocratic and wrong to seek his ouster (ahead of the next election). This argument was put on last night’s Channel 4 News here in Britain by Chris Williamson, a Member of Parliament from the Labour Party who is opposed to the government joining other European governments in recognising the opposition leader Juan Guaidó as legitimate acting president. Who is right, democratically speaking?

Let us assume that the two following statements are true:

  1. Maduro was elected democratically. (There are questions about the honesty of the election but let us assume it was democratically sound.)
  2. Under the governance of his regime, the country’s economy is falling apart, people’s living standards are in steep decline, social order is disintegrating, and liberty is eroded by police state tactics.

Is it then still true that democratic logic dictates that Maduro has the right to be president? That sounds absurd, and as so often when conclusions are absurd there is something wrong with the underlying logic.

In Britain, the Brexit referendum resulted in a majority for Britain exiting the European Union. It then follows that it is democratically necessary for the government and Parliament to implement the majority vote. Anything else would be undemocratic and democratically damaging. That is the consistent line of the Prime Minister and many others.

Let us again assume two statements to be true:

  1. The referendum was democratically correct.
  2. Leaving the European Union on available terms would be damaging to Britain’s economy and the people’s standard of living, would reduce Parliament to a rule-taker, would put the continuation of the United Kingdom at risk, would reduce Britain’s standing and influence in the world, and would impose damage on friends and allies in Europe.

Is it then still true that democratic logic dictates that Brexit must go ahead, come what may? It would seem again that there is something wrong with the logic.

What goes wrong in these cases is a misunderstanding about democracy. Democracy is a method. It is not its own purpose. The purpose of democracy is to provide for effective and safe rule. Rule is effective to the degree that it delivers order and safe to the degree that it so does without undermining the liberty of citizens. We subscribe to democracy because it is more likely than any other form of government to make for effective and safe rule.

But only more likely. Democracy is not infallible. Things may go wrong. If they do, they should be corrected, not persisted with because the mistake was made democratically. Parliaments correct and overturn democratically made decision all the time. The American constitution has provisions for the removal from office of an elected president who is unable to manage his duties.

In the Venezuelan case, if statement 2 is true, the democratically correct view must be that Maduro has forfeited the right to office. In the British case, if again statement 2 is true, the democratically correct view must be that Brexit should not be implemented.

That still leaves the question of how, practically speaking, to overturn the outcome of correct democratic process when it turns out to be perverse or counterproductive. As can be seen in both these cases, that can be extremely difficult. But the democratic argument, in the abstract, should not be difficult. It is not undemocratic to obey the facts and change one’s mind.

BREXIT AND THE EUROPEAN UNION

In Brexit, one of the three pre-eminent member states has revolted against the legitimacy of the European Union. That has caused crisis at home. What has it done to the Union? Not so much.

The project of integration in Europe started with the end of the Second World War. Some clear-headed thinkers, among them Winston Churchill, thought the time had come for Europe to reshape itself. Europe’s inclination, for centuries, had been to warfare. That culminated in the catastrophic World Wars of the twentieth century. The nineteenth century had been not much better: the Napoleonic wars, the Scandinavian wars, the Prussian wars against Austria, Denmark and France. And so on back through time.

Enough, these thinkers said. Europe is a danger to its peoples. It must be made safe.

A new constellation started to take shape with the European Coal and Steel Community in 1951, becoming the European Economic Community in 1957 and the European Union in 1993. The attempt, following the Napoleonic wars, to secure peace through balance of power had failed. The way now was to secure peace by binding the nations, with Germany and France at the core, together in mutual dependency. Today the Union embraces 28 countries, they will be 27 if Britain exits.

The Brexit process has revealed that  European integration has been extraordinarily successful. That has not always been easy to see, not least because of the reluctance, as many of us have been complaining, of the EU to reform.

But as Britain is trying to extricate itself, it has become visible how wide and deep the integration now is. Not only in commerce, trade, industry, finance, agriculture and fisheries, but equally in education, science, security, policing, culture, health care, residence, travel and much more, west-central Europe is now a genuine community. These countries have indeed become tied together in multiple bonds of dependency, as envisaged when the project of integration was launched. It has happened, it is a fact, it works.

The strength of integration is visible in the impossibility in Britain of finding a workable way out. It is visible in the need to re-write the bulk of existing legislation. It is visible in the multiples costs that will incur from trying to break from the bonds that have been tied during nearly seventy years. Of course those bonds are in some way a burden: that’s the point, the burden of mutual commitment.

Brexit will come at a cost to the Union as well as to Britain, but less to the Union. It has been challenged, and it has withstood challenge. If anything, Brexit has shown how much practical, day-to-day and down-to-earth reality has materialised from the visionaries’ lofty idea of integration. If this is a battle, the EU has won.

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.

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.

WHY BREXIT WILL NOT HAPPEN – YET AGAIN

The fog is lifting. The plot is thickening. Minds are being concentrated. Brexit has turned out to be a national nightmare.

The UK-EU negotiations are clarifying the choices. Per now, August 2018, the British people and their Parliament have in front of them a menu with three options.

  • Alternative 1: There will be a deal along the lines of the government’s Chequers agreement.
  • Alternative 2: Britain leaves the EU without a comprehensive future trade deal and on World Trade Organisation terms.
  • Alternative 3: Brexit is suspended and Britain remains a member of the EU.

These are the only available options. A deal may be struck along the lines now under discussion. The government has concluded that this is the only kind of deal that is available, and a deal of this kind might be acceptable to the EU. Britain leaving on WTO terms is undesirable, but could happen. The government is making contingency plans for this eventuality. Britain remaining in the EU could happen if there were a change of mind.

The problem, however, is that all three available outcomes are impossible, not one or two of them but all three.

  • Alternative 1 is impossible because it implies Britain making itself a rule-taker of rules it has had no say in making. That is impossible for one of Europe’s big powers. A small country like Norway can live as a rule-taker, but not a big power. A vote ostensibly to take back sovereignty cannot result in the country diminishing itself to obeying other people’s rules.
  • Alternative 2 is impossible because it would risk the disintegration of the United Kingdom and come with other costs. It would give the Scottish nationalists the arguments they need to enforce and win another independence referendum, and put Irish unification back on the agenda. The economic costs, and costs to other forms of European collaboration, would be unacceptable.
  • Alternative 3 is impossible because Parliament has put the question of EU membership to a referendum and the referendum has decided that Britain will end its membership.

There are no good options available. In the end, Parliament must decide. Somehow, Parliament must cut through and choose between outcomes that all have their own impossibilities.

The ongoing negotiations will reduce the menu from three to two choices. If there is a deal, the choice will be between Alternatives 1 and 3. If there is not deal, it will be between Alternatives 2 and 3. In the first case, will Parliament reduce Britain to the status of rule-taker? Impossible. In the second case, will Parliament put the Union itself at risk? Impossible.

These matters will come to a head in Parliament later this year, or early next year. Neither Alternative 1 nor Alternative 2 will command a majority. The government will fall. There will have to be either another government, possibly a broad coalition under fresh leadership, or a new election, or a second referendum, or some combination of these.

 

THE DANGER OF LANGUAGE

The Windrush scandal in Britain is a story of how the members of a group of the population during the last few years found themselves demoted to a state in which they could not sleep at ease at night out of fear that someone would come and take them away. The Windrush generation are the migrants from the British West Indies who brought their labour force to Britain after the Second World War, on British encouragement, both adults and children with their parents. (The Empire Windrush was a transport ship that brought the first contingent of organised migrants from Jamaica and other Caribbean islands in 1948.) They settled here, made their lives here and became British.

Recently, members of this group came under intense scrutiny from immigration authorities and many found their right to live in Britain questioned. They were harassed for documentation to prove their right to reside. They found documentation such as employment and tax and social security records, even passports, disbelieved. They were forced into bureaucratic nightmares to procure additional documentation, often at substantial financial cost. They were denied standard services, such as health care, or were forced to pay for normally free services. Some were detained, some lost jobs, some were deported or threatened with deportation, some denied travel on the threat of not being readmitted, some refused re-entry from abroad.

The refugee children scandal in the United States is a story children of migrants on America’s borders, whose right of entry were in question, having been forcefully separated from their parents. They have sometimes been detained in concentration camp like facilities in border areas, sometimes sent away to other parts of the country.

In retrospect, authorities in both countries have acknowledged that what happened was wrong, but what should not have been done was still done. In both these civilised democratic countries practices came into operation which we otherwise associate with totalitarian dictatorships. How could that have happened?

It happened, of course, because officials on the ground obeyed orders from above. It has sometimes been seen as a mystery that totalitarian dictators have been able to get officials to implement brutish oppression, but there is no mystery. When officials are embedded in bureaucratic structures of command and obedience, those in command can get almost any order obeyed. Officials may not like what they have to do, but it gets done.

But in these two stories, there has been something more to it than obedience. Officials have executed perceived orders with extraordinary and brutal zeal, even in the face of horrendous and irrational consequences. Hardly anyone in position of authority in the respective services seems to have raised any question or objection, at least on principle.

That kind zeal comes from something else than just orders, it comes from the language in which the orders are couched. Language of caution can influence officials to implement orders with common sense and flexibility. Language of aggression can bend them to bureaucratic insensitivity.

In both these stories, public policy went seriously off the rails. The reason for that is ultimately that leaders were aggressive with the language they used to promote and justify their policies. In Britain, then Home Secretary Theresa May announced that immigration policy should be designed to create a “hostile environment” for illegal immigrants, and made a great show of that hostility. Immigration officials took to looking for illegal immigrants behind every bush and turned on a minority of mostly poor and black citizens with rigid demands of proof of their legality. In America, President Trump has whipped up anti-immigration sentiments by speaking of immigrants as criminals, rapists, and as vermin infesting the country, and asked for zero tolerance in the implementation of policy. Immigration officials dispensed retribution against children, even down to taking infants and disabled children away from their mothers.

Public policy depends on leadership for good or bad direction. Language is powerful. It is a responsibility of leadership to use language with prudence. Aggressive language from up high is dangerous – not just careless but dangerous. We see that in these two stories. We have had leadership of terrible language. We have had administrative practices that belong in totalitarian dictatorships.