First published in The Times.

Does Scotland have a right to exit the United Kingdom? The founding text on the matter of secession is the American Declaration of Independence. Here it is stated “that Governments long established should not be changed for light and transient Causes” and that the “Right to throw off such Government” arises as a result of “Abuses and Usurpations [and] a Design to reduce them under absolute Despotism.”

Does British rule over Scotland amount to abuses, usurpations or despotism? Not by any stretch of imagination, nor is anyone making such a claim. Scotland enjoys democratic rule on a line with the rest of the United Kingdom and also enjoys extensive devolved government. Some in Scotland may not like the British government and its policies, and may have good reasons for disliking it, but in terms of secession that amounts to no more than light and transient causes.

If we go by the principles of the American Declaration of Independence, then, Scotland does not have a unilateral right to secede from the United Kingdom.

However, there may be arguments in favour of Scottish independence. But if that were to prevail, it would have to be by agreement with the rest of the United Kingdom. That was accepted ahead of the first referendum when the right to hold the referendum was given by Parliament.

If Scottish politicians should be successful in their demand for a second referendum, the final question is who should participate in such a referendum? If there had been a unilateral right of secession, that would be the Scottish people.

But as no unilateral right exists, it cannot be up to Scotland alone. A basic democratic principle is that those who are affected by a decision have a right of say in the decision. A basic limitation of liberty is that you cannot do on your own what is to other people’s damage. If Scotland were to leave the Union, that would affect not only the Scots but also other Brits, who might well see the reduction of the Union as damaging the themselves.

If we go by basic principles of democracy and liberty, then, again in the absence of abuses and the like, no minority within a Union can claim a right on their own to change the constitution that affects everyone else. The democratic answer would be that the right to vote in such a referendum would be for not only the people of Scotland but for all the people of the United Kingdom.

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

First published in the Los Angeles Times and Aftenposten, Oslo. 

The last year has not been kind to the men in Beijing. After long seeing power drain to the East, the West is striking back.

At the fore is pressure on China to modify its practice of protectionist trade policy and industrial espionage. The Trump administration has given notice to the Xi administration to change its ways or pay a heavy cost. Trade negotiations are progressing towards new rules.

Security services in Western countries have issued warnings against the IT giant Huawei on grounds of national security, in particular in respect to the building of the fifth generation of wireless technology, G5. This includes the US, Canada, New Zealand, Australia, Britain and others – even the Czech Republic where otherwise President Milos Zeman has made himself China’s lapdog in Europe. Huawei’s chief finance officer is under detention in Canada on US charges, awaiting extradition. In January, a Huawei employee was arrested in Warsaw on charges of espionage. At issue is the duty in China’s state-led capitalism on companies like Huawei to collaborate with government authorities, including to share data.

Respected research organisations have issued reports detailing China’s “influence policy” aimed at political and educational organisations, media and civil society in democratic countries: the Mercator Institute in Berlin, the Asia Society in New York , and recently the Royal United Services Institute in London.

American lawmakers have spearheaded a fightback against China’s use of financial clout to chip away at the foundations of academic freedom. Western Universities have become reluctant to welcome the Trojan Horse of Confucian Institutes, and established Institutes are being shut down. The tone of voice in media commentary has changed. Apologists are silent and the dominant melody is one of warning.

A year ago, Xi Jinping made his first serious mistake since becoming supreme leader in 2012. He had the constitutional two-term time limit on the Presidency lifted. That pulled back the curtain for the world to see the regime as it is. He speaks the language of rule of law but will change the constitution at the flick of a finger if it suits him.

Internally, during Xi’s tenure, Party control has been tightened in draconian ways. A heroic community of human rights lawyers has been decimated. Social control is being perfected in a big-data “social credit system” whereby daily life rewards and punishments are distributed according to people’s score on a scale from good to bad citizenship behaviour. The Western province of Xinjiang, where the Chinese Muslim population is concentrated, has been turned into a totalitarian police state, complete with mass detentions and a network of concentration camps.

Externally, under the ideological inspiration of Xi’s “China Dream” of national greatness, Beijing is pursuing a policy of global domination. The main instrument is the “Belt and Road Initiative” in which China lends participating countries capital for infrastructural investments. The loans and projects are irresistible but have the effect of tying receiving nations into dependency on Beijing.

When loans taken on by Shri Lanka became unserviceable, China took over the port in question and 15 000 acres of land around it on a 99 years lease, establishing a Hong Kong style concession in a weaker country. Others caught in China’s “debt trap” include Zambia, which in late 2018 lost control of its main international airport, and Kenya, which is in danger of having to hand over its main Mombasa port for inability to service its Chinese loan to fund a China-built, but unprofitable, Mombasa to Nairobi railway.

The West has been desperate to see China as a collaborative force, but Beijing has, by the mismanagement of power, made it impossible to hold on to that illusion. To make matters worse for themselves, when meeting resistance Xi & Co revert to bullying. After New Zealand joined other Western countries in a stand against Huawei, Prime Minister Jacinda Ardern has been unable to schedule a long planned visit to China, and the launch of a much-promoted tourism initiative was abruptly cancelled. When the British Secretary of Defence made some critical remarks about the South China Sea, the Chancellor of the Exchequer found a planned visit called off. Little Norway has been forced to sign a treaty of friendship in which its government, otherwise a consistent voice in defence of human rights, commits itself to silence on China’s abuses. In New Zealand, in a much noticed case, Professor Anne-Marie Brady of the University of Canterbury, after publishing a critical paper about China’s influence in the country, has found herself and her family on the receiving end of a campaign of intimidation, thought the be orchestrated by Chinese authorities.

The realignment of power – not too strong a term – is starting to narrow China’s space of action. An immediate beneficiary is Taiwan, which sits on the contemporary fault-line of totalitarianism and democracy. The danger that China will trample liberty underfoot there is less today than it was a year ago.

Winston Churchill in the early years after World War II said of Stalin he said he did not believe he wanted war, he just wanted the spoils of war. The same can be said of Xi Jinping today. But now, the West is finding its voice against Chinese abuses of power. The men in Beijing are desperate for respect. It turns out that speaking clear language to the giant it works.

 

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.

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.

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.

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.

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.”

 

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.

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.