Brexit and the British State
By Duncan Whitmore
Following the drama of the past two weeks which culminated in the embarrassing behaviour of opposition MPs blocking the Speaker’s chair in the moments of Parliament’s prorogation (pictured above), we can hope for some dying down of the recent hysteria now that they have been royally booted out for a month. At least, that is, until October 19th, when Boris Johnson must either pull a new Brexit deal with the EU out of his hat or ask for an extension to the October 31st deadline.
In the meantime, we can enjoy the comedy value of the Labour Party trying to square the circle with its Brexit policy. Trapped between a rock and a hard place by its support coming from both working class Leave voters on the one hand and middle class, liberal Remainers on the other, their aspiration is to negotiate a new deal with Brussels in order to show their Leave credentials. But they will then call a second referendum in which they will campaign against their own deal in favour of Remain. Such absurdity has driven even Remain-biased journalists to barely concealed sniggering. On Wednesday of this week, deputy leader Tom Watson chimed in by suggesting that Labour should campaign for a second referendum ahead of voting for an Autumn general election (the conditions for which Labour has already shifted several times since they backed the Brexit delay bill last week). Given that Labour is the official opposition and, by far, the second largest party in Parliament, whatever it chooses to do is likely to carry more weight than whatever the likes of Little Bo-Swinson and the disproportionately mega-mouthed Ian Blackford have to offer. So, amidst the hyperbolic outrage at the Scottish Court of Session’s finding that the prorogation of Parliament was “unlawful” (strange how there were no screaming headlines when the first instance judges drew the opposite conclusion) as well as at the release of the worst case scenario no-deal planning documents this will probably be the only thing to keep much of an eye on for now.
Switching, however, to some longer term considerations, if/when this three (and counting) year old Brexit saga finally draws to a close it will be interesting to assess precisely how much damage it has inflicted upon this country’s system of government. In the past fortnight we have seen dusty old doctrines, principles and procedures which have held the British state together for decades, if not centuries – the rule of law, Parliamentary sovereignty, and even democracy itself together with the hysterical cries of “coup”, “fascist” and “tyranny” – invoked, manipulated and distorted against a government which is essentially doing little more than following a direct instruction from the electorate (and is willing to go to the polls to confirm its authority in doing so). By listening to all of the fury anyone would think that the government was, instead, trying to plough through the opposite of the Referendum result and was seeking to ban rather than call for an election.
Although libertarians are keen to point out the class divide between the governing and the governed, it is astonishing how much the Westminster bubble has failed to see the bigger picture in all of this. That however “wrong” you think the people were, however much you crow for grand principles, however much you are counting the votes that Boris Johnson has lost, whatever you think is in the “public interest” and whatever tortured/legalistic/technocratic reasoning you employ to justify everything you do – all of these things are both useless and meaningless unless they are secured by at least the tacit acceptance of the majority. In Britain today, this tacit acceptance is generally achieved by anything that has the perception of having been validated “democratically” – institutions and procedures that have the blessing of the ballot box. If you work to override this perception of legitimacy in either word or deed then it follows that this tacit acceptance will rupture and the superstructure of the state it supports will begin to crumble.1
Take, for instance, one of the mainstays of our constitution, the “Sovereignty of Parliament”. In the first place, if this concept was to be worded in accordance with its literal meaning it would be called something like the “Legal Supremacy of Acts of Parliament” – that parliamentary legislation is the highest authority in the land, unchallengeable in any other forum. This is in contrast to stricter “separation of powers” systems in which each branch of the state exercises its authority independently, and which may be called upon to review and check the powers exercised by one of the other branches. Legislation in Westminster is enacted by the “Queen in Parliament”, that is the Crown legislates on the advice and consent of Parliament. Thus, the “Sovereignty of Parliament” does not mean, as some of our “representatives” seem to think, that the current crop of clowns in the Commons are everyone else’s day-to-day boss. But even if it did, the legal sovereignty of Parliament to legislate is legitimised by the political sovereignty of the majority of the people. So crying “Sovereignty of Parliament” when Parliament is being used to frustrate a direct instruction from the electorate will ultimately do nothing but destroy whatever trust and legitimacy remains in that institution.
What about the rule of law? Shouldn’t we all – including Boris Johnson – obey the law and isn’t it Parliament that makes the laws? The rule of law, however, can mean nothing unless there is either an agreed rationale as to what the law should be, or (at the very least) an agreed determinant of what constitutes legal validity. This agreement is that the law should be underpinned by democracy. When, however, the law is being used to impede what the electorate has demanded – by, for example, forcing the Prime Minister to seek a further Brexit extension, or when the legislating body refuses to subject itself to a general election – it undermines the perceived legitimacy of the entire law creating process. In short, you can’t break the rules to make the rules.
And, of course, there is democracy itself. If Parliament is “defending the country” against Boris the tyrannical overlord by blocking his efforts to invoke the decision of a majority of the people in a fair referendum and, moreover, rejects his call for an election, then precisely who is it that MPs in Parliament are democratically representing? Certainly not the public, who, in spite of all of the hot air in Westminster, continues to place Boris Johnson and the Conservatives at the top of every opinion poll. Certainly they cannot claim to represent their constituents when a number of these MPs (many from Leave voting constituencies) sufficient to strip the government of its majority have switched party allegiance without subjecting themselves to by-elections. And they certainly do not seem interested in representing Britain itself when, as yesterday’s Times reported, several of them (namely Sir Keir Starmer, in addition to has-beens such as Blair and Mandelson) have been in cahoots with the EU and the French to sabotage the possibility of any withdrawal agreement, and to use continued delays to Brexit as a tactic to keep Britain inside the EU. A few centuries ago such connivance with foreign powers would have seen the perpetrator hanged, drawn and quartered.
If, as we have suggested, the application of all of these doctrines and principles reveals them to be hollow and meaningless, then the only thing our anti-Brexit establishment has achieved is to strip their Empress Britannia of her clothes, revealing her as a naked charlatan. Thus, in time, our politicians and pundits may come to realise that they should have cut their losses by sacrificing Britain’s membership of the EU. Instead, as a result of their errant refusal to do so, the measures to which they have resorted may end up provoking a demand for widespread reform of the entire system of government. In other words, from their own point of view, they should have realised that there is little point in trying to wrest control of the wheel if the passengers will scuttle the ship.
However, before libertarians get too excited at the possibility of a mass withdrawal of allegiance to the authority of the state, two things should be noted.
First, at least with the way things are at the moment, any ire is likely to be directed at the existing cadre of parliamentarians rather than the system as a whole. If a general election succeeds in booting out these particular people then calls for systemic reform may be muted.
Second, we are in the somewhat peculiar position of Parliament, rather than the government, being the abusive body. Specifically, Parliament has effectively taken control of the elected government by denying it both a working majority and its desire for a general election, a situation which would not normally have been possible prior to 2011 when the dissolution of Parliament was part of the Royal Prerogative. No future government will want to find itself trapped in this current situation of believing that the country is behind it while having to accept and enforce legislation with which it fundamentally disagrees. Moreover, Brexiteers are likely to view Parliament as having been the problem throughout the entire saga. Even Theresa May – as soon as the details of her sorry tenure have faded into memory – may end up scraping a pass. For even though she was a Remainer who failed to embrace leaving the EU with any gusto, at least she was committed to a plan which would have removed Britain as a party to the EU treaties – something which, in spite of the awfulness of her proposed withdrawal agreement, may come to be viewed as preferable to the current limbo. As it was Parliament which thrice rejected this plan it will be Parliament which takes the blame.
In ordinary times, however, it is the government – by virtue of its majority in the house and control of the legislative agenda – that has the wherewithal to usurp or abuse political power, a situation which the late Lord Hailsham referred to as an “elective dictatorship”. Indeed, the problem most of the time is not an excess of parliamentary scrutiny of government but, rather, a lack of it. (Libertarians can only lament the fact that the recent heights of antagonism between executive and legislature did not emerge during times when the government wanted to increase taxes and spending, or take us to war). But any cry for reform in the near future is likely to be directed at restricting the legislature rather than the government. Certainly we can expect the repeal of the Fixed-Term Parliaments Act (or at least an amendment that lends greater flexibility in calling an election to the government if it loses its working majority). But, after the next election, we may be greeted also by a renewed and emboldened executive that will proceed to consolidate its power by blocking off all of the constitutional/procedural checks on government (both conventional and novel) via which Parliament was able to bring us to the current situation.
So while we may find ourselves free of the EU’s shackles, other permanent changes to Britain’s constitutional arrangements may end up strengthening, rather than weakening the government we are left with. It would be somewhat ironic if MPs’ current attempts to defend the role of Parliament should end up diluting it – possibly paving the way for the very “dictator” whom they supposedly fear. Indeed, given that Boris Johnson’s political position is, in fact, right of centre (and his chancellor’s little assessed spending splurge is hardly the epitome of fiscal conservatism), one has to wonder how our liberal/leftist lunatics would be able to react to the ascendance of a real far right politician in this country – that is, the kind who really would aspire to ruling by decree before shooting at immigrants and non-whites. For having exhausted all of their vocabulary and fits of alarmism on the likes of Mr Johnson, what would be left for them to resort to, and would anyone listen to them? “OK, that Boris guy was bad, but this time it really is Hitler!!!” Such an individual is unlikely in the near future; but we shouldn’t be surprised if a more creeping form of authoritarianism accelerates because we have wasted all of our defences against it.
Notes
1It should be noted that the perception of legitimacy is not the same as actual legitimacy. Libertarians do not believe that democracy confers actual legitimacy on the state but we are, here, discussing the sustenance of the state, which relies upon perception.
[…] via Brexit and the British State — The Ludwig von Mises Centre […]
[Mrs May] “was a Remainer who failed to embrace leaving the EU with any gusto, at least she was committed to a plan which would have removed Britain as a party to the EU treaties…”
You mean the EXISTING EU Treaties. She would have signed us up to a new EU treaty in their stead – one without an exit clause. It seems that Boris is planning to do the exact same thing, or at least a variation on it. If he succeeds, it will surely spell the end of the Conservative Party. But that will be the least of his troubles. When the ramifications of what Brussels has done to us with the connivance of our own Prime Minister become apparent, I fear the British people will erupt in a way we have not seen for almost four hundred years.
If Mrs May’s deal had passed at the time then yes, that may have been the reaction. Now, however, the battle lines have been much more clearly drawn. On the one hand, there is Labour, the Liberal Democrats and the SNP all having revocation of Article 50 as at least part of their Brexit policies, whereas, on the other, we have the government committed to Brexit, with or without a deal. Johnson has, therefore, provoked an “us vs. them” environment in which the Leave voting public may view any Johnson deal – however bad it is – as having staved off the bigger threat. The risk from a “soft” deal passing may well be, therefore, that once the deal is passed all of the Brexit momentum and the glare of publicity dissipates while longer term negotiations with the EU proceed in the background, with any measures, extensions or whatever introduced quietly with no eruption of outrage. Fingers crossed that will not be the case and that there is already enough energy behind the desire for a “clean break” that will survive the passage of any “soft” deal.
However, Johnson’s chances of passing a deal (should he be successful in procuring one, which itself could be a long shot) seem slim. The policies of the opposing parties are at odds with simply passing a Boris deal through Parliament, and, in any case, it would make more sense for them politically to continue with their recent galvanisation of Parliament’s power by enforcing their delay law. This would aim at embarrassing Johnson into asking for an extension ahead of a general election, during which they could claim he has failed in his promise to leave by Halloween. So, with the votes of the other parties excluded, Johnson has to pull off a deal which will a) get the DUP on side with the Irish border problem, b) return Tory rebels to the fold, c) satisfy Tory hard-Brexiteers and d) persuade a sufficient number of rebels from opposition parties to make up any shortfall. Any agreement, “hard” or “soft”, may allow Johnson to clear two, possibly three of these hurdles, but all four may prove to be a tall order. If he fails, he will either have to try and make good on his promise to leave without a deal or fight a general election in which he will almost certainly have to promise a “harder” Brexit. So, with the Lib Dems now promising to revoke Article 50 without a second referendum, it seems as though the final contest is being pushed more towards no deal vs. no Brexit.
Unfortunately, the British people are too civil [civilised] for their own good. I think here of the resemblance between the words civility and servility. If we were in eastern Europe, mobs would have burned out Broadcasting House by now and dragged some well-known names through the streets by their intestines.
I have no confidence that the British people will initiate a revolt, but maybe I am wrong and we will see an uprising.
“Legal Supremacy of Acts of Parliament” has not applied since the ECJ took supremacy.
There has been no “agreed rationale as to what the law should be” since we joined the EEC/EU and the public have never been invited to agree any change to our historic “,determinant of what constitutes legal validity”. The public have certainly never ever agreed to jidicial activism in the createion of new law and the restraint of the voters’ sovereignty.
This is the key point. Lord Sumption recently gave an interesting speech in which he outlined the effect of the changes from a constitutional and legal point-of-view. Essentially you are elevating law above democratic and parliamentary consideration. The flaw in it, which as far as I could tell Lord Sumption didn’t care to mention (though he may have done and I have just missed it) is that it puts law-making in the hands of an activist judiciary.
Traditionally, and contrary to what is often said even by academic lawyers, English common law judges were law-makers, leaving Parliament to do little, but judicial law-making under such a system is not mean to be innovative. It merely develops the law within existing principles in a way that ordinary people understand, and provides for Parliament, as the ultimate (highest) court to legislate on any matter. This arrangement has now been overturned due to the influence of the EU.
Purely as a matter of law, Parliament remains sovereign as legislation can revoke the UK’s membership of the EU and end the precedence of EU law in the UK (which, in fact, it already has done through the 2018 Withdrawal Act). But yes, from a de facto point of view, the doctrine of direct effect (as well as the Human Rights Act) has led to UK legislation being subject to the kind of judicial review we see in “separation of powers” systems.
You are right to raise the issue of judicial activism in this regard, particularly as the role of the judiciary in enforcing EU law has received relatively little attention. To elaborate on the difference you highlighted between the development of the common law on the one hand and the judicial review of legislation on the other, the former involves real conflicts between real people, and so the development of the law proceeds, as you say, according to strong principles which ordinary people can understand. The latter, however, all but inserts the judiciary as a party to the legislative process. Owing to this fact, the appointment of judges has been a politically contentious process in the United States, and yet, in spite of this, they have managed to torture their short constitution to death through judicial “interpretation”. Due to our traditional separation of the political and legal processes, Britain has no similar fervour in subjecting the judiciary to this intense scrutiny. So while Parliament is sovereign in a legal/technical sense, the precedence of EU law may, in practice, have left us unwittingly vulnerable to the onslaught of judicial activism. Particularly if Remainers continue to try and settle political questions through lawsuits we could see increased public attention given to the role of the courts in our political system.
Moreover, this difference between sovereignty as a legal/technical matter and sovereignty in practice is something that technocratically minded Remainers failed to appreciate before and after the Referendum. While it is true that member states of the EU remain sovereign countries, all that the electorate sees in reality is foreign bureaucrats making all of the rules that our elected representatives simply have to work around. So MPs crying out for the “sovereignty of Parliament” is even more ridiculous when they have seemingly cared so little for it until now – and doubly absurd when they are invoking it for a cause that will ultimately destroy national sovereignty!
There will be no Brexit, it was never on the cards.
What I’m seeing is that British conservatives/libertarians are finally getting what they’ve wanted for thirty years, and now they are scared that they may be getting exactly what they wanted. It isn’t. as the BNP manifesto of 2001 suggested, simply a matter of revoking the Treaty of Rome. The EU still exists, despite us exiting it. I opposed the 2016 referendum, because I thought we would lose. I thought the 21st century Britons would be frightened into an overall majority in favour of remaining, and that this would be used to destroy the Eurosceptic movement overall. As it turns out, there was a deeply flawed but ultimately hopeful result, and I personally have found that the British working classes are much more Eurosceptic than I had assumed.
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