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.

THE AMERICAN CONSTITUTION ON TRIAL, PART 2

The pride of the American Constitution is “checks and balances.” It is designed to assure that neither executive nor Congress is able to rule without the consent of the other. In Mr. Trump’s presidency, this balance of power is challenged.

However, checks and balances is not the Constitution’s only job. The country needs to be governed and the Constitution should provide for good governance. The duty of government, said George Washington, the first president, in his first inaugural address, is “the discernment and pursuit of the public good.”

It has become standard among observers of American politics that Washington is “dysfunctional.” The Constitution, then, is challenged not only in its ability to check power but also to provide governance.

The Constitution may well stand the test of Mr. Trump’s attempted power grab. That is not assured but is at least possible.

Whether it can be rebooted to do the job of providing good governance is more doubtful. The Washington system has been grinding into gridlock for a long time, and this problem is made more severe by the new chaotic presidency.

There is no single cause of Washington’s dysfunction. But one strong factor is the escalating power of money in political processes. The transgression of private money into democratic politics causes elected representatives to become beholden to the givers of money. American politics have become mega-expensive – actually have deliberately been made mega-expensive for the purpose of making money the ultimate political tool. Candidates and representatives cannot (mostly) hope to win or retain office without raising large amounts of money from sponsors. Sponsors are increasingly organised in PACs, super-PACs and otherwise. In this structure of sponsorship sits the power to decide who will be elected – those the money is willing to sponsor – and what policies they can promote and support when elected – those that are acceptable to the money. The result is Congressional gridlock. President Obama explained the problem with clarity in his final State of the Union Address: elected representatives are “trapped” by “black money” and not free to make policies for the public good.

The two main criteria of good governance are effectiveness and fairness. In a democracy in which money trumps votes, governance suffers on both criteria. There will not be necessary governance if it collides with organised monied interests. Such governance as there is, will be biased in favour of organised monied interests. You could not have a better description of Washington’s dysfunction.

While Congress is the institution to look to for the checking of presidential usurpation of power, the Supreme Court is the institution that needs shaking up to control the power of money. The Court has fallen under the spell of a bizarre theory according to which the giving of money to political cause is a form of expression of opinion and therefore protected by the freedom of speech clause in the Constitution’s 1st Amendment. It has accordingly chipped away at such limitations on the political use of private money as have existed in the American system. The Court the purpose of which is to protect American democracy is, by convoluted logic, presiding over its erosion.

How could the Supreme Court be checked? None other than Congress could do it. Is a dysfunctional and demoralised Congress, “trapped” by the workings of “black money,” going to take on the Supreme Court? Not likely.

THE AMERICAN CONSTITUTION ON TRIAL, PART 1

The Trump presidency is testing the American Constitution. Mr. Trump is going about the business of being president in bizarre and troubling ways. He started by showing an intention to govern by presidential decree and issuing presidential orders right and left. That did not go well. Many of his orders were ill prepared, many have been of little consequence, some have been slapped down by the courts.

It should, however, have gone worse. He set out to govern without Congress as an equitable partner. Congress did react, for example by turning down his initial health care “reform.” But Congress as such has not stood up to a president who has tried to side-line and diminish it as an institution.

Then followed a parade of executive incompetence and irregularity – in appointments, in a failure to make appointments and fill essential posts, in stimulating internal demoralising and chaos in the White House and the broader executive branch, in the spreading of misleading and untruthful “information,” in the boastful leaking by the president himself of sensitive security information to a foreign adversary, in an attempt to make the FBI an instrument of the president personally, in the firing of the FBI director who refused to comply, in various presidential actions to interfere with and pervert the course of justice.

The constitutional system has not failed to react. Congressional committees are investigating possible wrongdoings by the president and his team. The Justice Department has appointed a special prosecutor to investigate the same wrongdoings within a framework of criminal justice.

There should, however, have been more reaction. There is a power struggle going on. That struggle is for an imperial (if incompetent) presidency and against Congress. It is a messy and ugly power struggle, but unless the president’s usurpation of power is resisted, facts will be established on the ground and Congress will be further diminished. Congress has for years allowed itself to slip towards irrelevance. It is now as if a president with lust for power is exploiting Congress’s confusion about itself to govern unconstitutionally.

The pride of the American Constitution is “checks and balances.” It is designed to check the president so that he/she cannot attain despotic power. The framers assumed that presidents may incline to despotism and that such risks need to be controlled. It is possible, perhaps probable, that the Constitution will stand this test up against the kind of president the framers feared. But it is not assured. Mr. Trump has already lashed out against the Constitution itself as “archaic” and “a bad thing for the country,” and blamed it for the chaotic state of this presidency. A possible scenario is that Congress asserts itself to check the president, that the president takes this as an attack on himself and his mandate and fights back, and that the country is plunged into deeper constitutional crisis.

It is the responsibility of Congress to check the president. Congress may still do that. But so far, Congress has not risen above party politics to assert itself as an institution. Members of Congress, on both sides of the aisle, are still allowing the president to hold the initiative and mainly responding strategically by what is expedient for their own standing and electoral prospects. That’s what members of Congress must do, but it is not all they should do.

When a president persists in ruling against rather than with Congress, a time comes when Congress must stand up and act as an institution with independent judgement that goes beyond political expediency. Whether Congress would so do, is for now an open question. It is today a weakened institution which may not be able to harness the necessary collective will. An unpalatable president may win the power struggle and prevail over a further diminished Congress.

WHO CALLED BRITAIN’S SNAP ELECTION?

There will be Parliamentary elections on the 8th of June. Parliament was scheduled to sit until the next ordinary election in 2020 but the Prime Minister, Theresa May, decided to call a snap election while reflecting on the matter during some days of walking in the Welsh hills with her husband.

Only it was not the Prime Minister’s decision, but Parliament’s. Technically, the Prime Minister recommended to Parliament to call an election and Parliament so did, the House of Commons the very next day.

This provision came in with the Fixed-term Parliaments Act 2011 which removed the power to call snap elections from the Prime Minister. The intention of this Act is that Parliaments will sit five years, that everyone will know when the next election will be, and that Prime Ministers should not have the unfair advantage of being able to call an election whenever it suits his or her side. However, the Act also empowered Parliament to trigger an election before the end of the five years term, if there are exceptional circumstances and by a two-thirds majority in the House of Commons.

But although the snap election was technically called by Parliament, in reality it was the Prime Minister’s decision. It turned out that the Act had not practically moved that power to Parliament.

The 2017 election is unnecessary and has been triggered for obvious party-political and tactical reasons. It is exactly the kind of surprise election the 2011 Act was supposed to prevent. Why did Parliament go along with it? Even the opposition on its own had enough votes to deny the Prime Minister.

One answer is that the opposition caved in because it would otherwise look cowardly. That may be so but is not a sufficient explanation. The 2011 Act puts a duty on Parliament to consider if there are extraordinary circumstances to warrant an early election. The House of Commons, rubber-stamping the Prime Minister’s decision without delay, can hardly be said to have examined the circumstances carefully. It was simply ambushed. Remember that the House is not in control of its own agenda. It was for the government to decide that the House would deal with the issue the next day.

This is what should have happened: The Prime Minister recommends to Parliament that it triggers an early election. The House of Commons puts the matter to its relevant select committee for deliberation. That would, firstly, give the House a bit of time to collect itself and would enable debate on the matter in the press and in the country, at least a few days of time. Then, secondly, the committee would prepare a report on the proposal, putting it into its constitutional context and going over arguments for and against. The committee might make a recommendation to the House, or possibly majority and minority recommendations. Only then, and with the aid of careful deliberation in committee, would the House deal with the matter in plenum. The House would have escaped the ambush and it would be legitimate to turn the Prime Minister down if the deliberation had not turned up persuasive arguments for an extraordinary election. It might even be that the Prime Minister would not have called the snap election out of fear of being thwarted by Parliament.

Parliament might still have decided to grant the Prime Minister her wish, but it would not have been a foregone conclusion. And it is certain that without an institutionalised procedure of deliberation, Parliament could not have decided otherwise than it did.

Some general themes:

  1. It is not enough to technically empower Parliament in a certain matter. Parliament must follow up by instituting proper procedures to exercise its power with effect. Such procedures must be binding on Parliament itself so that they cannot be manipulated. The House of Commons should take control of its own agenda.
  2. The House of Commons does excellent work when given proper work to do. But in decision-making, it does not have adequate procedures and does not do the work it should.
  3. As things stand, Britain does not have a safe system of political decision-making.