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.

IS DEMOCRACY COMING TO AN END IN AMERICA?

This ought to be a frivolous question, but it no longer is. No less of an authority than President Barack Obama has issued the warning. In his final State of the Union Address in early 2016, he called on his fellow Americans to “fix our politics” to prevent “democracy from grinding to a halt.”

Donald Trump’s victory in the presidential elections has caused more observers to question the health of democracy in America, such as for example Professor Robert Reich, former Labor Secretary in the American government. However, the challenge to American democracy does not come from the election of an anti-establishment outsider, however outrageous he may be, but from a combination of two circumstances: the coming to power of a president with disrespect for democracy at a time when democratic institutions are already weakened.

What has eaten into the democratic foundations in America, more than anything else, is the power of money. The system is rigged in favour of the rich and of special interests. Washington perverts into collusion between big politics and big money. There is gridlock in government and anger in the heartlands. What is broken is finally we-feeling in the population and trust between people and government.

There are also other, if less dramatic, institutional distortions. During the last two or three administrations the balance of power between the main branches of government has been upset so that Congress has gradually lost authority. From one side, a politicised and unrestrained Supreme Court has usurped powers it should not have and made itself not just a guardian of law but a maker of law. From the other side, the Presidency has usurped other powers to govern without the collaboration of Congress such as in the widespread use of “signing statements” to limit his duties of implementing Congress’s laws and “executive orders” to govern without the consent of Congress.

The remarkable thing in the destruction of political equality and the pincer movement by the other powers against Congress, is that Congress itself is entirely passive. President Obama said that elected representatives are “trapped” by their dependency on raising ever more “dark money.” Congress has made itself an observer from the side-line to the deterioration of the Constitution.

Into this morass of institutional weakness steps a radical anti-politician. The inclinations of the person who becomes president, although constrained by checks-and-balances, matter enormously for the character of governance. American democracy is in need of repair. It has instead got a wrecker at the helm.

President Trump is not a man of democratic instinct. Of course, we observers from afar cannot know much about his true personality but it is to take him seriously to listen to what he says. He ran an outrageously ugly campaign based on anger, on fear of the other, on stimulating base mob instincts, on prejudice, on misogyny, on disregard of truth and facts, on disrespect for disagreement. He threatened his opponent with retribution and violence and held up the spectre of mass, possibly armed, action, having refused to commit himself to accepting the election result were it to go against him. He has been described, by competent expertise, as a world-class narcissist.

On the substance of his policies, we are starting to see the outlines, which are consistent with the persona we saw in the campaign.

  • A continuation in government from his habit in the campaign to disregard the truth and to use untruths as a method of working. The denial of truth and the propagandistic use of untruth is the method of dictatorship.
  • A systematic assault on the country’s free press. Journalists are collectively “dishonest” and what they produce is “fake news.” This is damaging. We are already into a Kafkaesque nightmare where the very meaning of truth and fact is being destroyed.
  • A continuation of disrespect for disagreement. An actress who speaks her mind gets clobbered, from the position of the Presidency, as “overrated” in her profession. A judge who rules according to the law, is branded a “so-called” judge. The White House spreads fear in the country.
  • An apparent uncontrollable urge to pick fights: with those who might disagree, of course, but also with his own administration and the intelligence services, and internationally with allies, such as the European Union, NATO and the neighbouring country of Mexico. A disregard for the duty of a powerful nation’s leader to make himself informed about matters he pronounces on. Washington spreads fear in the world.
  • A blustering use of executive orders, fortifying a precedent for governing without the collaboration of Congress. The deterioration of the Constitution continues.
  • And more drip-drip use of dictatorial methods. A lack of willingness to answer and inform, such as on his and his administration’s possible relations to an internationally aggressive Russia. Governance by prejudice, such as his (failed) attempt to ban all citizen from certain predominantly Muslim countries.

The administration is being ridiculed for being a mess. But that is to underestimate what is happening. This president came into office in an American democracy of institutional fragility. He has started to govern in ways that render the institutional foundations yet more fragile. The American polity needs an injection of trust but is getting ineffective and unsafe governance.

And whose fault is that? The American Constitution is designed to prevent any single president from doing much harm. But when President Obama says “fix our politics” he is really saying that the constitutional institutions are not what they should be. The Trump Presidency is unattractive, but it is Congress, finally, that is not doing its job.

PARLIAMENT – ASSERT THYSELF!

If Members of Parliament could shed their attitude of servility to the Prime Minister and government, this is what they should do: The House of Commons should elect its own leadership in the form of a committee of speakers – the Speaker and five or six deputies – to be in charge of parliamentary business and represent and speak for Parliament. The post of “Leader of the House” should be abolished.

Parliament wants to consider the government’s Brexit plan. The Prime Minister is resisting any serious involvement by Parliament. We have a parliamentary democracy. Parliament does not need to ask the Prime Minister. It should instruct her.

We the people elect Members of Parliament to manage out joint affairs: laws, public policy and budgets. Parliament appoints a government to implement parliamentary decisions and prepare parliament business. Parliament is the democratic boss. The government is its servant.

However, in Britain, constitutional practice, in this as in so much, is ambiguous. Brexit has plunged the country into a power struggle between Parliament and government. This has given Parliament a golden opportunity to assert itself and improve the constitution.

There are two reasons why it is difficult for the British Parliament to exercise its full democratic. First, Parliament is not in control of its own agenda. “The Leader of the House” is appointed by the government and manages parliamentary affairs under the government’s instructions. Parliament has no leadership of its own and no one has a mandate to speak for Parliament as such. The Speaker, who is elected by Parliament, has in this respect only a ceremonial role. Hence, in the ongoing power struggle, there is the government on the one side with all of its apparatus, and on the other side only individual MPs who can no more than appeal to the Prime Minister to involve Parliament. Parliament as such has no voice.

The other reason is in attitudes. It is thought normal by most people in and around Parliament and Whitehall that it is right and proper that the government, once appointed by Parliament, should be in command. The Prime Minister insists that she should be in command of the Brexit process by “royal prerogative” – but in a parliamentary democracy the Prime Minister can have no other prerogative than is accepted by Parliament.

The constitutional practice in which the government dominates Parliament makes for an unsafe system of decision making. The government, the Prime Minister really, has too much of a free hand and government business is not tested by adequate oversight and scrutiny. The Chilcot report last year levied a broadside of criticism against our system of political decision making which enabled Britain to fall into the catastrophe of the Iraq war. Britain is in fact badly governed in general. In their brilliant book The Blunders of our Governments, Antony King and Ivor Crewe, both esteemed constitutional experts, show that badly prepared and mistaken decision making is rather the rule than the exception. The reason for this is not that our politicians are incompetent but that the system is dysfunctional.

We would be better governed if there were a more balanced relationship between Parliament and government. The weak link in the system of decision making is the House of Commons.

In the ongoing power struggle the Prime Minister has, unwisely, decided to protect the government’s supremacy over Parliament. She now wants decision making over Brexit to be conducted in the same way that has long caused blunders great and small. Iraq was a big issue in which Britain got it wrong. Brexit is a big issue that is again being managed under an unsafe system of decision making. Parliament now has the opportunity to improve on our political system – if MPs are able to learn from previous mistakes and act in accordance with their instinct.