EU Referendum

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Boris the radical remainer.

The moment he became Prime Minister Boris Johnson became an arch remainer. His one overriding goal is to remain in 10 Downing Street. Having been selected by c150k Tory party members on the basis that he would achieve Brexit, and having the example of what happens to PM’s that fail he devised a strategy which would secure Brexit come what may.

The problems he faced were a hopelessly divided legislature, a slim majority and a pressure group within the Conservative Party who were not for compromise. In these circumstance Mr Johnson decided the strategy to achieve his goal would be, “no ifs, no buts, no-deal”. However he needed cover for what would happen if he failed by 31 October, and also, for if he succeeded.

If he failed his credibility with the electorate might be shot and in any subsequent election he would face losing votes to Mr Farage. If he succeeded and Yellowhammer came home to roost he might be fighting an election with growing queues at ports, disrupted holidays, food and drug shortages and who knows what other disruptions.

Plan A was to have a snap election and get majority to deliver Brexit. When Jeremy Corbyn refused to play the part offered to him a revised strategy was needed. This involved ensuring that the blame for; a) not securing Brexit, or b) securing Brexit would fall on others.

It is almost certain his first and final offer to the EU will not be acceptable, it is becoming increasingly clear it was never meant to be. If they had rejected it outright he would have claimed foul and that it was the fault of the EU we have crashed out. Again they refused to play ball and are considering what they know is a non-starter. At the coming summit it will become clear that it is not workable. There will then be a lot of manouvering and synthetic anger by Boris and his team trying to portray the Europeans as intransigent and unwilling to negotiate in good faith. This is a tactic we see more and more often in politics where a party will do something outrageous but attempt to hide it by accusing the other side of doing the exact same thing.

Following all the sound and fury we will get to the point where the Ben Act comes into play. Mr Johnson then faces the dilemma, should he really attempt to overcome the Ben Act, crash out of the EU and risk an election in the context of Yellowhammer, or should he manouver himself into a position where he appears to have been forced to accept an extension, then have an election where the risk is Mr Farage is able to portray him as another failed Brexit leader.

It looks as though he is opting for the latter, pinning his hopes on a “people versus parliament” election. He must have calculated the combination of die in a ditch Brexiters and more widely held Brexit fatigue will produce him a majority which he can then apply to taking the UK out of the EU in January. He is probably correct in assuming that Brexit fatigue might quickly evaporate following a no deal departure.

Like most carefully crafted battle plans, Mr Johnsons did not survive the first engagement with the enemy. People refused to behave as they were supposed to. The tactics that have survived are about attempting to threaten and bully and lie their way to Brexit. It is a moot point whether this will be successful. 

However, elections are unpredictable as Theresa May found to her cost. There is no certainty about what the election result will be. And there is no doubt it will be anything other than a Brexit election. What happens then if the popular vote is for remain candidates but the electoral result is a leave majority in parliament? Who knows?

There are only two things that I think are clear, first, Mr Johnson’s steadfast commitment to leaving Europe, second his absolute commitment to remaining in 10 Downing Street.

 

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What’s in a word.

The Prime Minister believes there is nothing wrong with labelling the Benn Act, which prevents him from leaving the EU without a deal, the Surrender Act. His colleagues have suggested it is a legitimate part of robust political discourse. It is equivalent to the Labour Party’s labelling the removal of the “spare room subsidy” as  the “bedroom tax”. This is however a false equivalence.

In the case of the bedroom tax there was a dispute over the change to a welfare benefit which penalised households deemed to have chosen to live in accommodation which had a bedroom they did not need. The Government attacked the Opposition for tax and spend profligacy and a failure to recognise the seriousness of the deficit. The Opposition attacked the Government for a heartless attack on some of the most vulnerable members of society. The debate about this was passionate some might say vitriolic.

However, whilst the terms were strongly contested the disputants were always arguing about who was right and who was wrong. However much they disagreed about who was right and who was wrong they accepted the legitimacy of the other side putting their case. On the bedroom tax, critically, the Government thought the opposition was wrong, but not the enemy.

Using terms like surrender and other rhetoric that has its origins in military discourse and war time challenges the legitimacy of the other sides right to argue a case. The patriotic integrity of the other side is brought into question. They  are no longer people who have a very different view of the world they are the “enemies of the people”.

The distinction between this kind of language and the the dispute over the bedroom tax is fundamental, and profoundly important. It takes public debate into very dangerous territory. At best the PM’s hubris is clouding his common sense. I don’t like to think about the worst.

Recently, I looked at how President Trump compared against a number of tests set out by Levitsky and Ziblatt. in their book How Democracies Die. He did not fare well, which is a real worry for democracy in the US. Sadly, looking at the actions of Mr Johnson we also have cause for concern.

Before I go any further however, let me make clear I do not think Boris Johnson is equivalent to President Trump. Mr Trump is in a category of his own for venality, banality and an absolute stranger to the meaning of right and wrong, truth and lies. By contrast Boris is a pale imitation. But imitation he is.

In their book Levitsky and Ziblatt look at how how populist leaders gain democratic support and then proceed to corrode the democratic system from within. Typically they argue the system is frustrating the “will of the people”. Initially they may well be implementing popular policies but over time their view of the “will of the people” becomes less consistent with what most people think and they transition into increasingly authoritarian systems of government.

This transition is not always the result of a conscious strategy. They did not set out to be an authoritarian. They started out shortcutting the democratic system because it was too bureaucratic, or complex. The shortcuts outrage the opposition who push back and a tit for tat process spirals out of control and can lead to the establishment of a genuinely authoritarian government.

Levitsky and Ziblatt recognise that many people in long established democracies think “it could never happen here”. Their research, however, is a wake up call as in a number of the examples they consider similar views were present before it did, in fact, happen. Their aim is to provide warning signs of the kind of behaviour that precedes a drift to increasing authoritarianism. They identify 4 key indicators and for each indicator they give examples of more or less egregious behaviour which evidence a move towards  it. Thankfully, as yet in Britain, there is evidence of only the first two indicators and indeed the behavioural evidence is at the lower end of the spectrum.

The first key indicator is “Rejection of (or weak commitment to) democratic rules of the game”  evidenced by whether they “… they reject the constitution or express a willing ness to violate it.” The Supreme Court seemed to think, eleven / nil, that the Prime Minister’s behaviour did evidence this. Choosing which laws to obey probably falls into this category also.

The second indicator and the one most relevant to the question in hand is the “Denial of the legitimacy of political opponents” evidenced by whether “… they describe their rivals as subversive, or opposed to the existing constitutional order?” Talk of “surrender”, “traitors” and “betrayal” clearly attack the legitimacy of those opposed to a no-deal Brexit.

Boris Johnson is not a “dictator” and he has not staged a “coup”. He is, however, playing with fire. Talk about a people versus Parliament election ignores that 48% of “the people” wanted to remain. Reinforcing and promoting the divisions in a country should not be the aim of a  of a democratic leader. It may not work  in achieving the leaders goal but even if it does it could well be a case of an operation which was a great success but sadly the patient ended up dead.

 

 

 

 

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Constitutional Crises

Two of the foundational democracies in the Western world, both ironically containing united in their name, the United States of America and the United Kingdom are in the midst of constitutional crises. Here, where we famously have an unwritten constitution, the Supreme Court has declared the Prime Ministers prorogation of Parliament void. In the US, the country with probably the most famous written constitution in the world, the House of Representatives has begun impeachment proceedings against the President. In truth they are both responses to a similar issue.

In both countries there are leaders in power who are happy to override or ignore constitutional conventions and practices in the interests of getting things done i.e. delivering Brexit, or getting my way building a wall.

Boris Johnson has decided the country has expressed a clear view it wants to leave the European Union and therefore he is justified to do “whatever it takes” to secure this. More than three years on from the referendum, one indecisive election, two Prime Ministerial resignations, one year of unedifying Parliamentary manoeuvring, including three unsuccessful votes on a withdrawal deal, it is not surprising Mr Johnson can tap into a national mood of frustration.

A decisive strategy for dealing with the impasse must surely be welcome. The problem is Mr Johnson has been more decisive than strategic.

Mr Johnson has not attempted to build a consensus, or even a majority, in either his own party or Parliament, or thought of attempting to lance the boil with another referendum. He has in effect said the Parliamentary system is not working and so I will circumvent it. I will ignore Parliamentary sovereignty in order to return sovereignty to Parliament. Taking at face value what Mr Johnson says about his earnest desire to avoid a no deal Brexit, whatever was in his mind, proroguing Parliament and removing the whip from 21 tory members who voted against him looked like a concerted attempt to circumvent the democratic process. The Supreme Court seems to have viewed the latter in that light. So far so bad

However, when the news of the Supreme Court’s decision provides a cheap opening laugh in a speech to Business leaders in NewYork and the PM uses the opportunity to say how profoundly he disagrees with the Judges decision you have to be worried it is not just hubris that’s the problem. This concern is reinforced when there is talk of a “Constitutional Coup” and Number 10 start briefing about an election fought on a “people against the establishment” ticket. An establishment composed of the members of the Supreme Court and Jeremy Corbyn. You only have to say it out loud!

Across the Atlantic, after two years of continuous challenge the Democratic majority in the House of Representatives has eventually moved to impeach the President. The straw that broke the resistance of the Democratic leadership arose out of a whistleblowers complaint which has still to be provided to the Chairman of House Intelligence Committee.

Despite its not having been provided there seems to be a clear picture emerging the issue revolves around a conversation between President Trump and the Leader of the Ukraine, Volodymyr Zelensky. It is alleged Mr Trump tried to pressure Mr Zalensky into providing political dirt on Joe Biden (current frontrunner in the Democratic primaries) and of his son. It is further alleged that military aid, approved by Congress, was used as a bargaining chip.

In truth, it is difficult to keep up with the “high crimes and misdemeanours” of the current President of the United States. Appointing a secret foreign agent to the post of National Security Advisor; using his office to secure financial advantage for himself and his family; lying about his business dealings in Russia; paying $280k in hush money to women he had affairs with; refusing to release his tax returns; lying daily about everything from the economy to the weather; denigrating the free press and the judiciary. This is just a brief list of some of his deplorable actions. They contain a mix of offences against the the constitution, the constitutional  separation of powers, the conventions of political behaviour, and black letter State and Federal laws.

Whether the impeachment action is successful will depend on whether the current whistleblowing issue gains traction with the public. If not the President could likely shoot someone on 5th Avenue and the Republican Senate would still back him.

Whatever the outcome of Brexit or impeachment, on both sides of the Atlantic we have leaders surrounded by small groups  of ideologues determined to get their way whatever the cost. They don’t just challenge those who disagree with them, whether press, politicians or judiciary, they denigrate them as anti-democratic traitors.  In doing this they are undermining the foundations of constitutional practices within which democracy has operated for over 100 years.

Whilst it is important leaders project confidence it is always a worry when they claim certainty. Here the Prime Minister claims he knows what the British people want based upon a referendum held three years ago. The President has a view that when he was elected he became boss of US Ltd. He thinks his authority runs across all arms of government including the judiciary and  legislature. They should accept what he says and do as they are told. That includes locking up his opponents e.g. “crooked Hilary”.

What is happening on either side of the Atlantic is similar and profoundly dangerous. When you mess with precedents as a politician your self interest might tell you what goes around comes around. If the precedents don’t constrain you then they may not constrain the opposition when they move into power, as they will at some point. But worse if you undermine conventions and ignore precedents you strike at the credibility of the rules of the game. If this undermines public faith you may create a wholly different scale of problem.

The Supreme Court has blown the referees whistle and cried fowl. A sensible leader in a democracy would treat this seriously and temper their behaviour. Politics with rules is very demanding, difficult and frustrating, without them it’s war.

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“We the people…”

The Constitution of the United States of America has been called one of the hinges of history. For all its imperfections and the compromises over slavery it was a revolutionary document articulating the belief that sovereignty lies with those who are governed and not with those who govern.

The UK took a different path but arrived at a similar recognition of the location of sovereignty. Whilst there are written sources on process, eg Erskine May, there is, however, no definitive written statement of the British Constitution. It is a set of conventions and practices which politicians have more or less adhered to over time.

No one would argue that either constitutional model is perfect but perfection is not a yard stick with much use in the world of politics. Democratic politics is about satisficing, about how the clash of ideas and interests are resolved characteristically by compromise and a willingness to accept outcomes which you have opposed. It may not always get the best answer but will more often than not avoid the worst and critically provide for accountability by the governed of those that govern.

However, crucially, it can only function if there is an overall commitment to, acceptance of and and trust in, the system for securing governments and process of aggregating political ideas and interests. There needs to be an acceptance that the written or unwritten constitution provides a reliable, equable and fair skeleton holding the body politic together. Prime Ministers and Presidents may come and go and the style of governance may ebb and flow but the rules of the game sustain through time, creating continuity and trust in the process if not always happiness with every outcome.

In recent years, on both sides of the Atlantic, weaknesses in this model have come to light. Conventions and indeed laws are only as strong as the willingness of the political elite to follow them. Both here and in America politicians of all persuasions have been engaged in an escalating process of the weaponisation of their respective constitutional norms. This is a very dangerous path. It goes to the integrity of the skeleton without which trust in the process is undermined and commitment to compromise destroyed.

There is no doubt the process is more brazen and ubiquitous in the States, for the time being. President Trump has no understanding of the notion of the separation of powers, the role of an independent judiciary, a free press, the location of sovereignty, or in truth much at all. He is a uniquely awful individual who brings to everything he does a combination of ignorance and prejudice which when combined with the power of his office is truly frightening.

Whilst he has brought a terrible destructive force to the rejection of accepted ways of behaving in truth he is accelerating and deepening a process which has been in chain for some time. Furthermore, culpability for what is happening now is not confined to President Trump. Mitch McConnell, the Republican leader of the Senate has, with the backing of most of the rest of the GOP, sustained and supported his President in a manner which, if there is any justice, history will judge very harshly.

Back here in the UK it is the case that both sides in the Brexit debate have sailed close to the wind in terms of bending and stretching constitutional norms. However, the prorogation of Parliament for 5 weeks at a critical point in the Brexit process raises the the bar to a whole new level. It is a typical populist ploy to claim there needs to be progress and Parliamentarians are getting in the way of firm and clear government. It is also typical of despotic double speak that one claims to be bringing sovereignty back to Parliament by closing it.

If precedents are manipulated to do something they were not intended to they start to lose legitimacy. They then come to mean whatever the government of the day thinks they mean. This completely undermines their function of constraining political battles within civilised bounds. If the rules of the game don’t apply to one side they don’t apply to any. Political debate becomes ever more acrimonious. Effective government ceases, in the United States this has literally involved the shutdown of government 10 times in recent years. The spectacle of all this undermines the faith of the governed in the very process of democratic government and they seek assurance and stability elsewhere. And there is always someone willing to provide that stability, even if the assurance is short lived.

There is a complacency about the strength of democracy, which perhaps derives from the fact that most citizens in the US and UK have experienced nothing other. It may be this complacency has also infected our political elite. They feel they can manipulate the system and it will spring back. They can twist its arm tighter and tighter and it will never break. They need to be aware, however, that a broken convention will take a lot longer to repair than a broken arm, if it is repairable at all.

For a minority of Parliament Brexit is an idee fixe which must be achieved at all costs. They seem to have assessed the political, constitutional and economic cost they are risking as less than the benefits from a country free from Europe. If they get their way we must hope they are right, even if we are sure they are wrong, because if they are wrong they may have inflicted severe harm on democracy in the UK, which, given the current global context, may have implications around the world.