WHY DEMOCRACY X: PEACE

Democratic countries do not fight wars against each other. This is true today, was true in all of the twentieth century, and was true in the nineteenth century in that countries with then democratic institutions and with a substantial part of the male population enfranchised, did not fight wars with each other. Hence, a more democratic world would promise to be also a more peaceful world.

The observation that countries in which governments are under some form of popular check are less likely to be warring, was first made by the German philosopher Immanuel Kant in a publication of 1795 entitled Perpetual Peace (Zum ewigen Frieden). Here he not only proposed the equivalent of a UN Charter in which countries commit themselves to peaceful coexistence. He also recommended that countries should adopt republican constitutions since that would make them less prone to war.

The peaceful inclination in democratic governments is due partly to the distribution of power in the population. Since the glories of war accrue mainly to élites and the costs of war fall disproportionately on the populace, élites may incline to war where they are not answerable to the populace and be more constrained from war where they are under popular control. Other reasons may be a high level of trade between democratic countries, that democratic leaders and citizens learn the art of compromise, that they see people in other democratic countries as similar to themselves, and that their communality encourages a habit of peaceful negotiations and treaties.

Regrettably, democratic countries have not in the same way been able or willing to avoid war with non-democratic countries. They have fought wars of more or less defence against non-democratic aggressors, as in the Second World War, and then with uninhibited brutality. And they have fought wars of aggression in self-interest, as for example the many and violent colonial wars that for example Britain and France engaged in during the nineteenth and twentieth centuries.

Democracy, then, is good for peace in the world – but does not guarantee peace.

WHY DEMOCRACY IV: RULE OF LAW

In democracies, the law prevails. Governments cannot do what is not authorised in law. Retribution cannot be brought down upon citizens that is not sanctioned in law and managed through due process. Basic rights have statutory protection. Private property has legal protection and cannot be expropriated except by due process and with compensation. Contract is regulated by law. Public policy, policing, surveillance, land and property management, punishment – none of these are at the discretion of governments. Citizens have protection and predictability in life and business.

Furthermore, rights and regulations are effective. There are institutional arrangements that secure that the law prevails and that not even governments and ministers are above the law. Primary among these arrangements is an independent judiciary.

In short, there is rule of law.

Autocratic governance can be regulated by law. In China, the most sophisticated autocracy ever invented, both public policy and civil life have in recent years been increasingly regulated by law. That is an improvement for citizens in that there is less unpredictability. But in this and other autocratic systems, what results is at best rule by law, not rule of law. None of the criteria I have listed above apply. Under autocracy, the rulers are above the law, not the law above the rulers. The reason a regime needs to be autocratic is that it cannot prevail with rule of law.

Rule of law is not impossible in political systems that are not democratic, or very imperfectly democratic. Hong Kong is in one meaning a city state which is not governed democratically but which has still (recently) benefitted from a rule of law regime, including with an independent judiciary. This regime has come under stress after Hong Kong was reintegrated into the People’s Republic of China, but continues to prevail reasonably well.

However, while rule of law without democracy is not impossible, it is very unlikely. Democracy without rule of law, on the other hand, is not possible.

WHY BREXIT WILL NOT HAPPEN (revised)

In spite of the referendum, Brexit or not is still the responsibility of Parliament. Parliament does not abdicate. Its charge is to look after the wellbeing of the population and country, and it is not possible for Parliament to walk away from that responsibility, nor in its nature to do so.

That is clear enough constitutionally. The referendum was advisory. Parliament could have decided to make the referendum binding but deliberately did not. It retained in law the authority to make the final decision and is not constitutionally bound by the referendum.

It is also clear politically. As we have moved on from the referendum, circumstances have changed and we have learned more about the meaning and consequences of Brexit. Brexit on the terms suggested in the referendum campaign is not deliverable. It is Parliament’s job to decide on the impact of how things are working out and what we are learning.

Imagine you are an MP today. You look into the future. You see, from one side, coming towards you an avalanche of necessary public investments: in infrastructure, in defence, in housing, in education, in social care, in the NHS. And you see, on the other side, low growth, low investment, lagging productivity, skill shortage. That adds up to an economy that cannot generate enough public revenue for necessary maintenance of society. You cannot avoid the question of whether it is compatible with your responsibility to let the country cut itself off from its most important community of trade and economic partnership.

You look to the British national landscape. In Scotland, Brexit will give the nationalists the arguments they need to push through independence. The Union will break up. In Ireland, a new border, more or less hard, will cut through the island and disrupt the peaceful coexistence that has been achieved. The worst scenarios may or may not materialise, but you cannot avoid the responsibility for exposing the Union to high risk. You turned you back on that responsibility in sanctioning the referendum. You cannot do it again.

You look to your own institution, to Parliament. You there see no settlement and no coming together around any shared strategy for implementing the referendum. Parliament has asserted its authority and to some degree taken charge, and pulled towards Brexit moderation. It has refused the government a free hand. The government’s original hard Brexit strategy has been killed. The principles of payment and a transition period have been conceded. You have learned that Brexit is not a simple matter of cancelling a club membership and you are trying to sort out in your mind what it really means.

Parliament’s confusion mirrors the population’s confusion. There is no “will of the people” out there. There is division, as reflected in the snap election. The division in the population carries through into Parliament and the Cabinet, and into the relationship between Parliament and government. Parliament is refusing the government a mandate of clarity and the government can do no more in the negotiations than muddle through without initiative, determination or direction. The risk is high that there will be no deal. Most MPs sit on the fence. They believe it is in Britain’s interest to be inside the European Union and they believe they cannot go against the majority in the referendum. That dilemma remains unresolved.

Politics in Parliament are even more tenuous than they look. Not only is the government without platform or support, both major parties have leaderships that in the European question are at odds with the majorities in their respective parliamentary parties. Leavers do not trust Remainers, Remainers do not trust Leavers. Backbenchers do not trust the front benches, and vice versa. The government does not trust Parliament, Parliament does not trust the government. The parliamentary truce is phony and not durable.

The talk of the town in Parliament that reaches the public is “how Brexit?” The talk of the town in Parliament that, for now, does not reach the public, is how Parliament can extricate itself from the mistake it itself made in calling the referendum.

MPs fear the uproar it would create if they exercised their constitutional authority to override the referendum. However, they also recognise themselves to be caught up in a dilemma from which there is no happy outcome. The choice they see in front of them is between uproar now or long term damage to the country. What may look like a mess, is Parliament’s lumbering, convoluted, step-by-step manner of resolving its terrible dilemma.

A DEMOCRATIC CASE FOR CATALONIAN SECESSION?

There is without doubt a strong movement within Catalonia for secession from Spain. Regional leaders, now Carles Puigdemont and before him Artur Mas, have claimed that they have a democratic mandate from recent elections and now the disrupted referendum.

But do they? What is the democratic argument in the matter?

Whether or not there is an electoral majority in Catalonia for secession is not clear. If there is, it is at best a small majority, with a large minority remaining in favour of Catalonia staying within Spain. Is a small majority, if there is one, enough for a democratic mandate for so large a move?

Two main rules of democracy are:

  • in the end, the majority decides,
  • in so doing, the majority has a duty to respect the interests of relevant minorities.

Democratically, the question of whether Catalonia remains a part of Spain or leaves the union is to be settled by a majority. But which majority?

People who live in Catalonia have an interest in the matter. But so do the people who live in the rest of Spain. If Catalonia were to secede, the remaining Spain would be a different country. The relevant constituency in the matter, then, is all Spanish people. Even a majority in Catalonia is a minority in Spain and can have no democratic right to change all of Spain. This principle was recognised, for example, in the 2014 Scottish referendum on independence. The right to hold that referendum was constitutionally given to Scotland by the British Parliament (in what is known as an ‘order in council’) after negotiations between the British government and the regional Scottish one.

Catalonian pro-secession leaders may be right that they have a democratic mandate of sorts. But if so, the mandate is only to seek secession. There is no democratic mandate for people in Catalonia on their own to decide on an important matter that effects all of Spain. For a Catalonian referendum, for example, to be democratically valid, the rest of Spain, as in the British case, must, at the least, have conceded to Catalonia the right to hold a referendum and agreed to abide by its majority.

How strong, then, is the mandate? Since there is (at least) a large minority within Catalonia against secession, the mandate for secession must be said to be a weak one. The minority has a right to have its interests respected. The question of independence is one of great principle. A small majority in a population hardly has a right to simply impose its will on a large minority in an important matter. The mandate to seek secession, if there is one, must contain a duty to persuade the doubters. Before Catalonian leaders could argue the case for secession with force in front of the rest of the Spanish population, they would need to show that they have at last a solid majority in their own population behind them.

The strength of the mandate is influenced, further, by the reasons that are given in favour of secession. In a founding text, the American Declaration of Independence, 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 only as a result of ‘Abuses and Usurpations [and] a Design to reduce them under absolute Despotism.’

The Spanish union is long established. The government is democratic and no group or province within Spain is under despotism. From the Catalonian side, it does not seem that strong arguments are given for secession, and certainly nothing of the kind suggested in the American declaration. It seems mainly to be a case of resentment. It is said within Catalonia that the relatively wealthy province is being forced to subsidise poorer areas in the country. But that kind of redistribution is standard in a well-governed country and obviously nothing like despotism.

However, the Catalonian leaders may still have a democratic mandate to seek independence. They therefore represent a minority within Spain with a valid interest in a vital matter. The rest of Spain therefore has a duty to respect the interests of that minority. One way to do that might be to negotiate with Catalonia for a different constitutional settlement.

But, again, if such negotiations were to result in proposals for a radical centre-provincial realignment, the democratically relevant constituency for ratifying the realignment would be the entire Spanish population, for example as represented in the national assembly, the Cortes.

WHY BREXIT WILL NOT HAPPEN

Parliament is moving towards preventing Britain from exiting the European Union. It is not there yet but in its lumbering, convoluted, step-by-step manner, that’s where it is heading.

Parliament carries the charge and responsibility of protecting the British people’s interests and well-being. It is not going to sit by and allow the country to cut its legs off. Critics of Parliament, such as myself, are often in despair of its ineffectiveness, but the historical experience is nevertheless that in the big questions, in the end, Parliament comes through.

Since the referendum, there have been huge shifts in Parliament in how to deal with the outcome. We started with the government’s determination to implement hard Brexit with minimal involvement by Parliament. Hard Brexit is now off the agenda and Parliament has asserted itself and continues to do so. It is denying the government any unambiguous mandate for how to negotiate in Brussels.

Parliament has enforced the acceptance that there must be a transition after the completion of negotiations in which Britain remains a member of the Union for some as yet not determined period. The view is strengthening that Britain must remain in the single market, which is code language for continued membership. The Norwegian solution of being part of the single market without membership of the Union – accepting the rules with no say in the making of rules – is impossible for a big country. The Labour Party has moved to the single market position, for (as they say so far) an indefinite period.

After the failed general election, there is a confusion of ambivalence in Parliament which perfectly reflects the confusion of ambivalence in the population. There are criss-crossing views in Parliament on Britain and Europe, with constellations in constant movement. In neither of the big parties are the leaderships representative of their respective parliamentary parties. Everything is in flux. Nothing is settled. Members of Parliament collude in corners and corridors day in and day out. The huge shifts we have seen so far are in continues motion.

More is known about the consequences. The argument that Brexit would be simple has been disproved. The argument that is would save money has been disproved. The argument that it would be economically costly has been proved: the British economy is now worth 10% less to the world.

The risks have been clarified. Trade and investments will suffer. The union will break up: Brexit will give the Scottish nationalists the arguments they need to carry the day. These risks may or may not sway public opinion but in Parliament they matter.

Can Parliament overrule the majority in the referendum? It is no simple matter for it to so do and it will, to put it carefully, be problematic. But, referendum or not, Parliament carries the final responsibility.

Parliament has the formal right to overrule the referendum. Constitutionally speaking, the referendum was advisory. In the British constitutional tradition, Parliament is sovereign and that sovereignty was maintained in Parliament’s remit for the referendum.

It also has the moral right. It has obeyed the referendum and started the process. That has moved us on. The facts have changed. Matters have been clarified. We know more. Parliament has a duty to deal with the world as it is and is not bound to dealing with it as it was.

The emotive language following the referendum is “the will of the people.” But there is no single “will of the people.” The population is divided, even in the referendum pretty equally. It is for Parliament to work itself through divisions in the population towards a reasoned position in which it pays heed not only to the (small) majority and the (large) minority in the referendum but also to the interests that were not reflected in the referendum, notably of the young who (regrettably) did not vote in the numbers they should have.

THE LONDON FIRE, LOCAL PEOPLE AND LOCAL GOVERNMENT

(First published in the Daily Telegraph)

On the inferno in London’s Grenfell Tower on 14 June we know

  • that residents, local people and safety experts had long warned about the state of fire security in this and similar blocks,
  • that known techniques are available that would likely have prevented a fire inside one flat from engulfing the building.

The residents were not heard? We need to understand: Why?

The explanation is no double complex, but in the final analysis the answer must be that residents did not have the power to get their concerns acted upon. It was not that their fears were not known or not valid, but that the step from knowledge to action was not taken.

The reason they did not have power behind their concerns is also no doubt complex, but already on the day after the calamity it was observed that at least part of the reason must be systemic. Better precautions could and should have been taken to secure the block. The fact that such precautions were not taken shows that there is a fault in the system of governance. Decisions that should have been made were not made.

Grenfell Tower is in a borough (Kensington and Chelsea) of about 160 000 people. In a political unit that large, the distance from the little people in the little neighbourhoods up to those who are in charge is a very long. It is hard for any small group to be heard. These residents had people speaking for them in the local council, but that voice was only one of many in a large district and did not carry much weight.

Furthermore, this council, as British local councils generally, is itself bereft of power. Councils have some limited responsibilities which they exercise pretty much as administrative agencies under direction from Whitehall. They are not actually local governments. They manage some local affairs, but they do not represent local populations. In his book The British Constitution, published in 2007, the late Anthony King, concluded: “Local government is no longer, in any meaningful sense, a part of the British constitution.”

Your local concerns compete with those of others and if yours are to prevail there must be power behind them. This is the iron law of democratic governance. Those who govern deal with the matters they must deal with. Other matters are squeezed out. The people in Grenfell Tower and its neighbourhood did not have political representation because they are a small and peripheral group in a very large district and because the council at the head of that district is not a local government in the business of representing local people.

This absence of local political representation is visible in many areas of British life. In recent years, for example, we have had terrible flood catastrophes. These have also been the result, at least partially, of failures to take precautions. That has resulted, again, from systemic failures in governance. There has been no clearly defined localised responsibility. Local councils have had little and ambiguous authority in the matter. Flood protection throughout the land is the responsibility of Whitehall in London and the national Environment Agency. That’s a long way to go to get someone who is responsible for innumerable rivers to take an interest in yours.

Local populations are at the mercy of such attention as distant authorities may elect to give them. Local councils may by and large do the jobs assigned to them well, but such management is also all they do and can do. They are not attuned to acting as the local population’s representative, and local populations are not attuned to turning to their council for representation. There is not the relationship between council and population that is the fabric of local government. This is reflected in the dismal participation in local elections.

In Britain’s architecture of governance, there is a whole layer missing. There is, as Professor King found, NO LOCAL GOVERNMENT. In the case of Kensington and Chelsea, once a catastrophe outside of the council’s remit hit, such local authority as there was simply disintegrated, first into paralysis and then falling apart in resignations.

The absence of local government is one of several defects in the constitution, in need of urgent repair. This void should be filled with local units of government that are different in two ways from today’s councils. They should be both smaller and have more responsibility. There should be nearness between local people and their authorities and those authorities should have the power and responsibility to give their populations representation.

Our national politicians want us to think that Britain is a well governed country. But it is not. A well governed country has the apparatus to deal with the population’s concerns. In Britain, part of that apparatus is missing. A vital link in the chain of command from people in the localities to governors up high is missing. Britain has the most centralised system of government of any country in Europe (devolution notwithstanding, which for local government proper means yet more emasculation). We are on our own in believing it is possible to deliver good governance without local governments. As we have now seen in even the wealthiest borough in the centre of the capital, that is a failing enterprise.