Shifting the foundations

Politics is in decline, partly – at least – because the courts, and the law, are increasingly doing what politicians used to do. This has indirectly contributed to the electorate’s increasing rejection of the political process. There is growing resentment against the political elite. So what can we do?

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By Lord Jonathan Sumption

I shall begin with a quotation: “For 150 years, power has been deposited in Parliament, and for the last 60 and 70 years, Parliament has been becoming more and more unpopular.” Sounds familiar? The author of these words was not a lead writer in a daily paper or an angry demonstrator in Parliament Square; it was Benjamin Disraeli, perhaps the only true genius ever to rise to the top of British politics. He put them into the mouth of his hero, Sidonia, in his novel Coningsby.

Coningsby was published in 1844 at a time of great constitutional ferment in Britain, and on the eve of a political crisis, in some ways uncannily like what Britain is going through at the moment. Of course, Sidonia was Disraeli himself, and his diagnosis was bleak. “The peril of England,” he said, “Lay not in laws or institutions, but in what he called the decline of its character as a community. Without a powerful sense of community, even the best laws and institutions were a dead letter.”

Now, I begin with these lugubrious words in order to make a number of points. First, there is nothing new about our current political predicaments. Secondly, in any political crisis, there will always be calls for changes to our institutions. Third, the suggested changes are usually irrelevant to the problem which has provoked them. Even so, Disraeli’s warning has never discouraged people from calling for institutional reform when the real problem was in ourselves.

For quite a few years now, these calls have taken the form of proposals for a written constitution. I have been concerned in these lectures with our persistent habit of looking for legal solutions to what are really political problems. Calls for a written constitution mark the extreme point of that tendency. Theoretically, we could have a written constitution without expanding the constitutional role of the judiciary. The constitution of the French Fifth Republic, in its original form of 1958, came pretty close to that, but, in practice, every scheme of constitutional reform suggested for Britain in recent years has sought to limit the powers of Parliament and government and to increase those of judges.

This is not an accident. A written constitution is, by definition, a supreme source of law. It prevails over Parliamentary legislation. Any supreme law which sets out to regulate relations between the citizen and the state must necessarily put some rights beyond the reach of the elected legislature. But the power which the legislature loses under such schemes does not simply disappear, it passes to judges. Judges recognise, interpret and sometimes create constitutional rights. Judges decide when these rights may be trumped by other interests.

Now, it will be apparent from earlier lectures in this series that I am sceptical about claims that our system of government can be improved by injecting a larger legal element into it. The main problem about such claims is that they attribute our current political malaise to the defects of our institutions when they are actually due to other causes which no amount of institutional reform will cure.

As it stands, the British constitution has four features which distinguish it from nearly every other constitution in the world. First, it is unwritten. There is no fundamental document against which the constitutionality of acts of the government or the legislature can be measured. Second, there is only one truly fundamental constitutional rule, which is that Parliament is sovereign. There is no legal limit to what it can do, the limits are political. Since the House of Commons, as the dominant element in Parliament, is an assembly of elected representatives, the sovereignty of Parliament really is the foundation of our democracy.

Third, the limits on what Parliament can do depend on political conventions. Conventions are not law, they are rules of practice. They derive their force from shared political sentiment which would make it politically costly to disregard them. Some of them are fundamental. For example, the convention that the monarch must act on the advice of her ministers, that the House of Lords does not obstruct legislation for which the government has an electoral mandate, or that Parliament will not normally exercise its undoubted right to legislate for Scotland or Wales on matters which have been devolved to their own legislatures. It has been said that while the United States’ constitution is a matter of law, the British constitution is a matter of opinion. Now, that is too glib, but there is some truth in it.

Fourth, and last, the government is part of Parliament and dominates it without ever being entirely in control of it. Its dominant position is due partly to tight party discipline and partly to the size of the ministerial vote. But the main reason for it is the long political tradition reflected in the procedural rules of both Houses that Parliament is not just a legislative or deliberative body, but an instrument of government. It is there to support the executive, or change it for another one that it can support. The first three of these features were reaffirmed in the Supreme Court’s decision of 2016 which ruled that the government needed Parliamentary authority to withdraw from the European Union. The fourth has been tested by the crisis over Brexit, but it remains a critical feature of our system. The objections to this system are that it is obscure, old-fashioned, out of step with international practice and gives far too much power to Parliament. There is some justice in all of these criticisms. But before we look for alternative arrangements we need to understand how we ended up with the present ones.

These are symptoms of a wholesale rejection, not just of politicians, but of the political process itself. Why has this happened in a country as politically aware as ours?

The British constitution is unique, but uniqueness is not necessarily a vice. It is the result of our history, which is itself unique. The godparents of written constitutions have been revolution, invasion, civil war and decolonisation. Constitutions have almost always been adopted by states upon the foundation of the state, or on the destruction of some previous order. As a result, there was always a blank sheet of paper to write on. But Britain is an ancient state which cannot be reduced to a blank sheet of paper.

For more than three centuries it has been fortunate, or perhaps unfortunate, in having experienced none of the catastrophes which have called for new beginnings elsewhere. Nothing has ever happened to create a new source of law to stand above Parliament. You do not have to believe, like Charles Dickens’ Mr Podsnap, that our constitution was bestowed upon us by a benign providence in order to be wary about projects to demolish and rebuild it. All nations are prisoners of their past. They can discard it, but only at the cost of immense disruption and unpredictable outcomes.

I do not doubt that a written constitution would be an artefact of perfect rationality, a thing of great intellectual beauty, but it would have no basis in our historical experience, and experience counts for a great deal in human affairs; more than rationality, more even than beauty. Ultimately, the habits, traditions and attitudes of human communities are more powerful than law. Indeed, they are the foundation of law.

If our existing constitution was intolerable, we might have to put up with the disruption and instability involved in jettisoning it. But, in fact, it has brought us real advantages. Because it remains essentially a political and not a legal constitution, it is capable of significant incremental development without any formal process of amendment. This has enabled the British state to adapt to major changes in our national life which would have overwhelmed much more formal arrangements, the onset of industrialisation and mass democracy, the existential crises of two world wars, the creation and then loss of a worldwide empire, the rise of powerful nationalisms in Ireland, Scotland and Wales.

All of this has been accommodated politically without changing the basic constitutional framework. Take devolution, not just because we are gathered here in the capital of a politically reborn Wales, but because it is probably the outstanding modern example of the advantages of constitutional flexibility. Devolution has radically altered the internal workings of the United Kingdom, but it was achieved politically by ordinary legislation after a general election in which it was part of the successful party’s manifesto. Compare, for a moment, Britain’s accommodation of Scottish and Welsh nationalism with Spain’s apparent inability to accommodate the nationalism of the Catalans. 

One reason why the issue has been so much more confrontational in Spain is that relations between the state and its constituent regions are fixed by Article 2 of the Spanish constitution. The Spanish constitution is independently enforceable by the judges and, like all constitutions, it is hard to amend. A political solution is therefore difficult to achieve.

The fact that Britain has recently been through a period of radical change and is entering another is not, therefore, a reason for ditching our current constitutional arrangements. On the contrary, it is a reason for retaining them. Crises of political legitimacy are not unusual, either here or elsewhere. Other democracies have handled them no better, and often worse than we have, in spite of having elaborate formal constitutions with all the features recommended by those who would like to see one here.

This suggests, as Disraeli argued in Coningsby, that we ought to be looking at more fundamental causes of the current diseases of our body politic than the peculiarities of our constitution. In an earlier lecture in this series I suggested that a stable democracy requires a minimum level of public engagement with the political process. This is where the real problem lies. Successive annual surveys published by the Hansard Society and British Social Attitudes show us to be a country with a strong sense of political and public obligation and a real interest in public affairs.

Yet, this has been accompanied by the progressive disengagement of our people from the actual political process. The symptoms of this are all around us. The long term decline in the membership roles of all the major national political parties, falling turnout at elections, widespread contempt for professional politicians, the rise of powerful regional nationalisms offering a more immediate source of legitimacy. These things are not quirks of our political system. Other countries with very different systems have experienced them too.

Membership of political parties has declined across most of Europe. The decline has, in fact, been steepest in countries like the United Kingdom, France and Sweden with the longest democratic traditions. Regional nationalisms have challenged established states in Belgium, Spain and elsewhere. Turnout rates at presidential elections in the United States hit a post-war peak in the 1950s and ‘60s, but have fallen ever since. They are currently among the lowest in the world. France has recently experienced an even sharper falloff.

These are symptoms of a wholesale rejection, not just of politicians, but of the political process itself. Why has this happened in a country as politically aware as ours? Of course there have been spectacular incidents, like the scandal which erupted in Britain in 2009 over Parliamentary expenses. But there are, I think, more fundamental factors at work which are inherent in the democratic process itself.

Democracy generates unrealistically high expectations. They spring partly from the eternal optimism of mankind, partly from a misunderstanding of the role of politicians, and partly from an exaggerated view of their power to effect major change. The problem is aggravated by the auction of promises at every general election. When these expectations are disappointed, as they inevitably are, a sense of impotent frustration undermines public confidence in the whole political process. Either the prospectus was false, or the execution was incompetent.

This doesn’t necessarily matter when everything is going well, but it matters extremely when other things are going badly. Functioning democracies have always been heavily dependent on economic good fortune. Western democracy has had plenty of good fortune. It was born in the 19th century in an age of creative optimism, economic expansion and European supremacy. The shattering of optimism is a dangerous moment in the life of any community. Disillusionment, with the promise of progress, was a major factor in the 30-year crisis which began in 1914 and ended in 1945. That crisis was characterised by a resort to autocracy in much of Europe.

The limits on what Parliament can do depend on political conventions. Conventions, or rules of practice, derive their force from shared political sentiment which would make it politically costly to disregard them.

Three-quarters of a century have now passed since 1945, years marked by rapid economic growth and exponential improvements in standards of living. But today, most western democracies face problems of faltering growth and relative economic decline, of redundant skills and capricious patterns of inequality, most of them the legacy of past successes. These things generate feelings of disempowerment which discredit democratic institutions. The polling data collected by the authoritative World Values Survey suggests that, although most of Europe still regards democracy as fundamental, in Britain, France and the United States, only the older generation agree. Most people under 30 no longer do.

Recent polls conducted by the Hansard Society suggest that a clear majority of our fellow citizens would welcome government by a strongman willing to break the rules. A high proportion of them think that this strongman should not have to worry too much about representative institutions like Parliament. Some climate change activists have openly proposed a suspension of democracy on the grounds that their programmes for limiting carbon emissions and species extinction at the expense of current standards of living would never be endorsed by electorates.

All of this has been aggravated in the public mind by the perceived remoteness of politicians. Representative democracy necessarily produces a political class separated by lifestyle and outlook from those who vote for them. This is inherent in the nature of democratic government. Few politicians will ever be like the generality of their electors, even if they began that way. Getting elected calls for exceptional levels of ambition and commitment. Government calls for high levels of information, experience and skill. These qualities are unlikely to be shared by most of the electorate.

The uncomfortable truth is that all political systems are aristocracies of knowledge. Democracy is only different in that the aristocracies are installed and removable by popular vote. This radically affects the way that they behave and think, generally for the better, but it does not bring them any closer to their electors. All of this is hard to reconcile with current notions about representation which have undergone a subtle but important change in our lifetimes.

People expect their representatives, not just to act for them, but to be like them. This is an old idea. John Adams, one of the founding fathers of the United States, thought that the legislature should be an exact portrait in miniature of the population. The French revolutionary leader, Mirabeau, declared that it should represent the people as exactly as a map represents a landscape. But this was the top-down rhetoric of a political elite. The idea has acquired a much wider resonance in our own age which rejects deference and abhors hierarchy in a way that neither Adams nor Mirabeau would have understood.

Resentment of political elites played a large part in the British referendum campaign of 2016. The same resentments were decisive in the American presidential campaign later that year, as well as in the French presidential campaign of 2017 and the Italian legislative elections of 2018. In all of these contests, lack of political experience was a central part of the successful candidates’ electoral pitch. The consequences of this rejection of political elites are, however, much more serious in Britain than in other countries. This is because of the critical role of political parties in Parliament and the intimate relationship between the government and the House of Commons.

Party membership may have dwindled to low levels, but party members still choose Parliamentary candidates and have a major voice in the choice of party leaders. Declining membership rolls have allowed both of the big national parties to be colonised by relatively small numbers of hard-edged zealots and entryists with a very limited vision of the public interest and no interest at all in accommodating anyone else. Even among the wider public, people are less willing to accept the horse trading that is a necessary part of building any kind of public consensus. This absolutist approach to controversial issues is the hallmark of fanatics, but it isn’t confined to them.

Few things were more revealing than the electoral catastrophe that befell the Liberal Democrats in 2015. They lost out because of the compromises that they had had to make to create a viable coalition government in 2010 when no party had a majority in the House of Commons. To many of their erstwhile supporters, compromise was inherently unprincipled. Unbending attachment to one’s principles is often morally attractive, but it is just as often politically sterile. This isn’t just our problem. The United States has, for the moment, ceased to be a political community because neither side of the major political divide respects the legitimacy of policy positions that they disagree with. In Britain, we have reached the same position on Brexit.

In the last French presidential election, the successful candidate, Emmanuel Macron, was preferred by less than a quarter of the electorate in the first round. A shift of just 3 percent of the votes would have resulted in a runoff between the intransigent right of Marine Le Pen and the intransigent left of Jean-Luc Málenchon. Two and a half millennia ago, Aristotle regarded democracy as an inherently unstable form of government, precisely because it was vulnerable to demagogues like these. The genius of western democracy has been to defy that prediction for some two centuries – but for how much longer?

If this is a plausible assessment of our current problems of political legitimacy, then it must, I suggest, be obvious that adopting a written constitution to serve as our supreme law will not make any difference. It will simply produce a partial shift of power from an elective and removable aristocracy of knowledge to a core of professional judges which is just as remote, less representative and neither elective nor removable.

None of this means that there should be no constitutional change. There has been a  great deal, and there will be more. But it has been gradual and piecemeal and has not undermined the sovereignty of the elected Parliament and that, as it seems to me, is as it should be. The one significant change which might be thought to be pressing now harks back to the points that I made earlier about public engagement with politics. It concerns the electoral system. The first-past-the-post system which applies to Parliamentary elections in the United Kingdom has advantages which are often overlooked. It enables governments to come to power with absolute majorities in the House of Commons, even when they have no absolute majority among the electorate at large. They may not even have the largest share of the vote. This is a much criticised feature of our system, but it has contributed greatly to the stability of the English state and to the ability of governments to take decisive action when it was needed.

The labels will still be there, but they will no longer describe the contents, the facade will still stand, but there will be nothing behind it, the rhetoric of democracy will be unchanged, but it will be meaningless – and the fault will be ours.

It has, of course, achieved this by squeezing out minor parties unless they have a strong regional base. The result has been to confer an alternating monopoly on the two biggest national parties. This was probably acceptable at a time when the two major national parties had very large membership rolls and a high proportion of British voters strongly identified with one or other of them. But it is difficult to justify now. The duopoly of the major parties is as powerful as ever, but their membership base is smaller and less representative than it has ever been. A move to proportional representation at Parliamentary elections, combined with open primaries for choosing Parliamentary candidates would weaken the duopoly. It would encourage more and smaller parties, it would give the established national parties a stronger incentive to broaden their appeal beyond their base, it would force them to negotiate coalitions. Above all, it would break the power of the tiny activist minorities who control local party associations.

The change would mean that the process of policy adjustment and compromise which currently operates within political parties would, instead, operate between political parties. That would probably mean weaker and less stable governments which would be a real loss, but it might still be a price worth paying if it boosted public engagement with politics and enabled them, once more, to accommodate differences of interest and opinion across our population.

There is already plenty of gloomy speculation about how long democracy can last against an adverse economic background without my adding to it. Prophets are usually wrong, but one thing I will prophesy; we will not recognise the end of democracy when it comes, if it does. Advanced democracies are not overthrown, there are no tanks on the street, no sudden catastrophes, no brash dictators or braying mobs, instead, their institutions are imperceptibly drained of everything that once made them democratic. The labels will still be there, but they will no longer describe the contents, the facade will still stand, but there will be nothing behind it, the rhetoric of democracy will be unchanged, but it will be meaningless – and the fault will be ours.

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