The Prime Minister’s speech at the RSA on Tuesday deserves a good kick up the metaphorical backside, for it is an excellent example of how the language of liberty and change has been appropriated to describe actions which are entirely contrary to the principles of liberty, self-government, and human rights – and, of course, change.
Many people have assured me that, without government, there are no rights (‘Look at Somalia!’), and to a certain practical extent, I believe this to be true. If one’s right to life can be trampled upon by someone else with impunity, that right is de facto non-existent. Some government or authority is necessary to guarantee that others cannot infringe my rights – what is known as the rule of law. But that right is equally non-existent if the government itself can trample upon it with impunity, which is why I advocate a limited government without the power to infringe rights. There is naturally room for argument about what system of government best enables that ideal, and about the nature of its limitations and how they are guaranteed. But the ideal itself is sound.
It goes without saying, then, that rights supplied by the government, either through provision or financing, are not what I consider to be ‘rights’ at all, but entitlements; and that a government in the business of providing entitlements is ipso facto approaching the opposite end of the scale from my limited-government ideal, whatever else its virtues may be.
Notwithstanding the question of rights versus entitlements, another advantage of limited government is its inability to change itself. Not only does this confer stability, which is certainly an important consideration, it means that the government has not the power to grant itself more power. However small a remit the government might start out with, if it has the wherewithal to arrogate more and more aspects of public (and private) life to itself, it will not stay a limited government for long. So in addition to safeguarding the rights of the people, a truly ‘limited’ government must not contain within itself an easy mechanism for expansive self-alteration.
Only under the auspices of a government weak in all aspects except the rule of law can a people be both in word and in practice free. That, my friends, is liberty.
Gordon Brown clearly does not see things my way.
His speech, called ‘Transforming Politics,’ displays a curious mixture of impotence, brazenness, and lies.
Impotence, because he is the Prime Minister, and most out of all other Britons has the power to transform politics – yet he insists that the people in their diffuse millions must do this, people whose jobs, families, and responsibilities lie outside the realm of politics, people whose sole real political power is a single vote, warped and distended and subject to pressures far more numerous and dislocated than an individual’s choice of candidate. Gordon Brown has his hand on the tiller; he gets on with the job at hand; he single-handedly saved the world’s banking system. Why, then, is the hand he wraps round the lever of the nation’s political culture so weak?
If he truly wanted to transform politics, he with his executive orders and compliant cabinet and virtual stranglehold on his parliamentary party could do so. There is nothing to stop him. He claims to know what the people want, and he unquestionably has the power to make it happen – why insist that nebulous public action be a necessary condition?
Politicians, and Gordon Brown is no exception, must find it tremendously hard to imagine what they would want from politicians, were they regular people on the street. They have entered the rabbit hole; they are incapable of stepping outside of their own frame of reference. Ask any man or woman in the grocery store or the bus queue, and they will tell you: politics should be practised by decent people who are not obviously fraudsters, liars, confidence tricksters, or panderers, who realise that their job in a democracy is to represent the will of their constituents and advocate for policies that are beneficial, practical, and above all reasonable.
Ask a politician what sort of person should be practising politics, and who the hell knows what answer you’ll get. It might be the one I mentioned above. It might be ‘whoever knows what’s best.’ The honest answer (which you’ll never get from a politician, obviously) is either ‘me’ or ‘whoever can get the votes.’ This is not unfounded supposition; it is revealed preference.
Brazenness, because he appears to believe that if he repeats well-worn memes often enough, someone, somewhere, might derive meaning from them. How many times have we heard the following:
‘power back to the people’
‘democratically accountable’
‘giving people… rights to control the services they depend upon’
‘change’
‘power redistributed away from the centre’
‘fair access to all’
‘improving public services’
‘lasting peace and shared prosperity’
‘neighbourhoods’
‘diversity’
Brown endlessly repeats the buzzwords and key phrases, empty assurances that nobody disagrees with and which therefore mean nothing. Brown’s key speech about transforming politics is a repetition of all that his Government has been saying for the past decade. And he does not imagine his listeners will pick up on the obvious contradiction: change and transformation are in reality more of the same.
Lies, because he represents himself as a champion of the people against an outdated, unfair, and ossified constitution – which was equally outdated and ossified thirteen years ago when Labour won a landslide of seats under its unfair auspices. If the need for constitutional reform is so obvious now, it was equally obvious then, yet Labour did nothing. If, as Brown says, the choice is between ‘a new politics, where individuals have more say and more control over their lives,’ or ‘a discredited old politics, leaving power concentrated in the hands of the old elites,’ why were the British people not presented with this choice thirteen years ago, when it was no less real and pressing?
Constitutional reform is the last refuge of the desperate. With little prospect of a democratic mandate under the current system, acutely aware of his general unpopularity but clinging on to power with determined and bloody fingertips, the constitutional reformer sets out to circumvent imminent oblivion in the only way left to him: changing the rules in the middle of the game. It isn’t that the rules don’t need changing; it’s that he hadn’t the will to change them when he was winning. Now that he is losing, he suddenly apprehends that the same rules which used to give him unfair advantage will now deliver unto him unfair defeat.
What were once unfair rules must now become fair, before the game is over, while he still has the power to change them. He is a creature of the immediate; he will not bide his time until the next game.
Does Gordon Brown believe we will not notice this? And if we do notice it, does he expect we will trust in his party to deliver the constitutional change that best suits the people rather than what best suits the Labour party? He, with his parliamentary majority, his executive authority, his supine monarch, his cowardly cabinet, his draconian whips, his placemen in the upper house?
And so he promises us change for our own good, change that will empower the people and enhance their liberty, change dressed up in the beautiful language of freedom and democracy, concealing the meretricious reality beneath: that this government has great power, too much power, and cannot be stopped from infringing the people’s rights or changing itself to accrue yet more power. If this were not so, Brown’s constitutional reforms would be a pipe dream. And yet we are supposed to believe that the endpoint of this vast exercise of authority is to reduce that authority.
Forgive me if I’m a bit doubtful.
And yet it’s all so plausible, which is how he gets away with it. What reforms, specifically, is he proposing?
1. A democratically accountable House of Lords.
…a modern democracy cannot tolerate power to initiate and revise legislation being held for ever by those without a mandate from the people.
Quite right. While there are certain advantages to having an upper house that is not susceptible to the whims of the populace, such a chamber is manifestly not representative of the will of the people.
The cynical interpretation: an undemocratic upper house is also not susceptible to the whims of the Commons and acts as a bulwark against hasty, radical change and as a brake on the tremendous power of the Commons. More than in practically every other Western democracy, the majority party in the elected legislature of Britain wields almost unchecked authority. The unelected, (theoretically) non-partisan Lords is one of the few impediments.
But, I hear you say, the upper house in the United States, the Senate, is elected and partisan, and still gets the job done! To which I reply, the lower house in the US, the House of Representatives, has nothing like the power the House of Commons wields. The majority party in the House of Representatives is not the Government, and its leaders constitutionally lack executive authority.
Only when executive authority in Britain is separated from the majority party in the Commons does having an elected House of Lords make sense. While the majority party in the Commons continues to control both the legislature and the executive, making the Lords both partisan and elected will only strengthen that control, not weaken it.
So does Brown propose to reform the Commons in accordance with this prognostication?
No.
2. Increase parliament’s ability to hold the Government to account.
…parties should elect their own members of select committees in a secret ballot; select committee chairs should be elected by a ballot of the whole house; and non-government business should be managed by members of parliament, not the executive.
Quite right. Parliament is in theory sovereign; it should also be so in practice.
But:
…the proper role of parliament is, indeed, to scrutinise the executive and it should be given all the necessary tools to do so.
Parliament should, at this moment, deny Gordon Brown the ability to give them these tools. For tools which can be given can also be taken away. And once it is statutory that Parliament scrutinises the executive at the will of the executive, the legitimacy of that will is forever enshrined in the constitution. When power is granted, it is just as important to examine the implications of the granting as the actual power. This reform serves only to cement further the control of the executive over the operation of the sovereign legislative body.
3. Electoral reform, from FPTP to AV.
The alternative vote system has the advantage of maintaining the benefit of a strong constituency link…
I am sure this is true.
However:
The first past the post system maintains a clear link to a member of parliament’s constituency and it has usually given governments a clear mandate to govern.
If this is true, why change it? We don’t fix what isn’t broken. FPTP maintains the same strong link to the constituency as AV would; in addition, it has the advantage of usually conferring a clear mandate to govern. What does AV offer that overcomes this obvious advantage of FPTP?
…it also offers voters increased choice with the chance to express preferences for as many of the candidates as they wish.
Ah. AV allows a major party candidate to slide into office as the second preference of those who voted first for a smaller third party. The alternative-vote system will clear up that nasty problem of marginal seats while having little negative effect on elections in safe constituencies. To complete our journey through cynicism, all we need ask is: what is our biggest third party, and which major party are its voters more likely to prefer as their second preference?
Hands up all those who voted Lib Dem in 2005 because they hated Blair the war-monger but couldn’t stomach voting Conservative.
4. Transparency in public decisions and documents.
Over and above our commitment to transparency through FOI we are committed to progressively reducing the time taken to release official documents – ensuring the public have access to public papers far quicker than ever before.
Excellent.
I have no problem with this, actually; it’s one of the few pieces of wheat in all of this chaff. But it is only a small step in the right direction; the government of this nation needs to realise that all public business – everything done in the name of the people with the democratic authority of the people as its claim to legitimacy – must be open to the people. All documents should be official, and all documents should be public. All meetings, committees, hearings, inquiries, and the record of their business should be accessible to the electorate. Everything done in the name of the people and by right of their democratic authority belongs to the people.
5. Make public services more responsive to individual users.
Public services will not only be more personal in future but they will be more interactive – with the ability of the citizen enhanced to make their views known directly and influence the way our communities work.
Great.
Just one problem. At the moment, public services are accountable to the government. The government, as properly elected representatives of the people, oversees their operation, officially assesses their quality, and controls their funding. The government is the middleman, the mediator, between the public and the public services. The best way to make the public services directly accountable to the public is to remove the middleman. Will the government now allow the people to directly oversee the operation of public services, to directly assess their quality, and to directly provide and control their funding?
No, because:
…we do not rest our case on the delivery of better services to people merely on aspirations or targets: we are offering personal guarantees to citizens about the rights they can expect and enjoy.
The government will still be the mediator. As mentioned above, whatever it is in the power of government to grant, it is also in the power of government to take away. And so more and more authority gathers at the centre. Rights which are granted by government are not rights at all, but entitlements; and entitlements granted to the people are as far from being ‘subject to people’s direct control’ as it is possible to be.
6. Strengthening local government.
Local government should be free to innovate and to be creative in delivering better public services.
Quite right.
But:
…we inherited a situation where local government had been starved of funding and had very little power over decisions taken that affected their communities.
This is an implicit admission that he who controls the funds controls the power; and by starving local government of funds, central government had also starved it of power. Nothing in Gordon Brown’s proposals mentions giving local governments responsibility for raising their own funding. As long as local authorities must rely on the central government to pay for whatever it is they deliver, they will always be at the mercy of central government’s demands, no matter how ‘free to innovate’ they may theoretically be.
In fact, Brown skirts around this issue with admirable vagueness (if vagueness is the sort of thing one admires):
It is true that in the past local government has had too many streams of funding from a multitude of central government sources. Our total place reforms are potentially transformative in the better use of resources: they will allow local government and its partners to reach across all the funding coming into an area and enable better choices to be made at a local level about how this money is spent.
I’m not even sure what he means. What are ‘total place reforms’? How reassuring is that word ‘potentially’? What he appears to be getting at is that although the funding will still come from central governments, it may no longer be hypothecated, so local authorities will have more say in how to spend their hand-outs. I’m at a loss as to why he needs such an elaborate circumlocution to make that point, unless it is his desire to gloss over the fact that central government will still control the extent of local spending.
7. Codify Britain’s unwritten constitution.
…I have asked the Cabinet Secretary to lead work to consolidate the existing unwritten, piecemeal conventions that govern much of the way central government operates under our existing constitution into a single written document.
The various arguments for and against written constitutions are numerous and complex, and it may well serve the British people to have a definitive document; others will know better than I whether this is the case.
In the summer I announced that we would consult on the question of codifying our constitution as part of the consultation exercise on the British Bill of Rights and Responsibilities.
For those of you who have not read the consultation document on the British Bill of Rights and Responsibilities, allow me to draw your attention to some of the key points contained in the Ministry of Justice’s green paper.
First, the government considers that the key constitutional question in need of answering is
of the relationship between the citizen and the state and how this relationship can best be defined to protect fundamental freedoms and foster mutual responsibility as this country is going through profound changes.
The impetus for this kind of constitutional codification is explicitly the presence of change and crisis. Gordon Brown believes that ‘if we are to decide to have a written constitution the time for its completion should be the 800th anniversary of the signing of the Magna Carta in Runneymede in 1215.’ That gives us five years, during a time of change and crisis, for formulation, deliberation, debate, revision, judicial scrutiny, and finalisation. Enforcing an arbitrary time limit on a process that requires deep scholarship, consultation, bipartisan agreement, and lengthy deliberation during a time of change and crisis when that process cannot even command the government’s full attention is a recipe for disaster. (And the time limit is essentially arbitrary. There is no pressing need for a codified constitution by 2015. The year just happens to be the anniversary of something vaguely historically relevant on the popular connotations of which Brown would like to capitalise.)
Second, the codified constitution being mooted is not the lofty, concise document the United States enjoys, which merely sets out the fundamental rights of the people and the operation of their government. No, the British version will contain much more:
How individuals should live together, what rights and freedoms we should enjoy in relation to one another and against the state and how they should be balanced by the responsibilities we owe each other are among the most fundamental questions in politics. They are not abstractions, removed from the practical politics of jobs and housing and healthcare and education, because they concern the constitutional arrangements which determine how power is distributed in our country. They determine how every other question in our public life will be answered. They are not just about the historic protections of the individual against the state and balancing liberty and security. They are also about the frustrations that can arise in daily life, especially when using public services, and reflect the key role for town halls in tackling these frustrations by making information easy to access and involving local people in the decisions which affect them. They are about getting support to combat anti-social behaviour and to tackle the discrimination and prejudice many of our people still have to endure. They are about the smoking ban, the hunting ban, and taking action to prevent climate change.
This constitution is to be about everything a Briton encounters in his public life – except, apparently, the structure of his government, which is nowhere mentioned.
Third, this constitution will deliberately not include some of the things we have come to consider fundamental rights. Consider, for instance, this passage:
Additional protections in relation to liberty of the person or fair trials may not be necessary as the belief in their fundamental nature is already so deeply entrenched, culturally and politically, and there is no fundamental threat to them. At this stage, the Government does not propose the inclusion of the principle of habeas corpus or a right to trial by jury in any new Bill of Rights and Responsibilities, but it remains open to all arguments for and against as part of an informed public debate.
The Government does not propose to include habeas corpus, fair trials, and trial by jury in the written constitution as, apparently, there is no threat to these rights and no current need to protect them. You may draw your own conclusions about the wisdom of that plan.
Fourth, the proposed constitution is not intended to have legal effect – that is, the rights or responsibilities codified therein are not intended to be enforceable by an individual in court. It is not intended to have the statutory force of an Act of Parliament. In fact, its purpose would be only this:
A non-statutory declaration could be readily amended and updated over time. Its effect would be intended as primarily political and symbolic rather than legal. The fact that a charter or declaration might not have statutory force or was otherwise not justiciable would not mean that the exercise or the text itself lacked force. It could still carry great legitimacy in the wider sense of that word, by the strength of the consent behind it, and by the way in which it helped to set standards, as yardsticks of the behaviour we expected of others and of ourselves as members of UK society.
In short, Brown’s ‘written constitution’ would be a poorly-drafted, cumbersomely huge, non-traditional, non-justiciable framework setting out the minutiae of Britons’ lives without holding the government to any definitive principles of action or, even, guaranteeing its legal responsibility to protect the rights listed therein, let alone enforce the many entitlements also included.
(There are numerous other problems with this proposed ‘constitution,’ which you may identify by reading it yourself provided you accept the risk to your blood pressure.)
The rest of Brown’s speech is a clever call for his political opponents to agree with him. This, truly, is the language of politics: for if they disagree with him, they would entrench privilege and unfairness at the expense of the people; and if they agree with him, there is no need for them at all.
The not-so-clever part of his peroration is the constant call for change. Change, by definition, would be something different from what we have now. And what we have now, what we have had for thirteen years, is Labour. I have to wonder at Brown’s motivation for reminding us all of that. And for enumerating a deliberate and concentrated program of attacks on the existing checks and balances on the Government’s power that are, at the moment, the only institutions and processes in the country that limit the majority party’s near-incalculable power over public life and protect the few fundamental liberties remaining to the people of Britain.
