Saturday, 28 September 2019

The Grey Eminences

There are two inter-related flaws in the way that the media reports politics. They are a refusal to deal with people as they really are, and an obsessive focus on shadowy manipulators. The first is the construction of a mythical population, whether "the people" as a whole or particular sub-groups, which serves to distract from the realism of class and actually lived culture (for example, politics in Northern Ireland is clearly not about to reform around a vague dichotomy such as "open vs closed", whatever the liberal press might imagine). The second is the presumption that these populations are easily misled, whether by the organs of the state, big business or "outside agitators". This is partly a condescending belief in the bovine nature of the herd, but it also reflects the idea that, however stable the political scene, the state is fundamentally fragile and always teetering on the brink of anarchy, a philosophy popularised by Thomas Hobbes that lives on today in disaster movies.

The origin of this frame lies in the courtly politics of the late Medieval period, when the physical body of the monarch was treated as a synecdoche of the kingdom and royal ailments were matters of state. Poring over opinion polls and focus groups is the modern equivalent of inspecting the king's stools. The trope of the king's evil advisers was already well-established (having roots in the classical histories of Suetonius and others) before the absolutist state saw the emergence of the éminence grise as the chief adviser to the king's chief adviser. While the coming of democracy diversified state advice, producing an entire class of para-politicians and technocrats from SPADs to various "Tsars", it hasn't altered the assumption that the state is vulnerable to catastrophe: that a government can fall as easily as a monarch can die. Much of this week's media commentary has reflected these two ideas - that the behaviour of the people is predictable and yet dangerously unstable - which has led to claims both that "moderate" Tories are appalled at Boris Johnson's behaviour and that leavers will start lobbing bricks if we don't quit the EU in October.

To expect Conservative party members to be shocked by the PM acting illegally or misleading the Queen is to assume they respect the law and the monarchy. In reality, they regard the law as something that exists to govern other people, mostly the working class and minorities, and are intensely relaxed about their own law-breaking and unethical practices, from tax-evasion to queue-jumping. They also respect the monarchy in the way that the Daily Mail does, as a soap opera about class deference and hierarchy in which passing judgement on the faux-pas and inappropriateness of individual members (the wrong body shape, too brown, insufficiently demure) is the whole point. There's a clear parallel here with the US Republican Party, which has now proved beyond any doubt that Trump really is their kind of guy and that they see the Constitution as a flexible instrument of political advantage rather than time-honoured wisdom.

We can be pretty confident that leavers are not going to riot if there is an extension to the Article 50 process at the end of October, or even if there is a second referendum next year. Despite the media focus, Brexit simply isn't that important an issue for the vast majority of people, certainly not important enough to risk a criminal charge, and the most passionate leavers tend to be old, middle class and unversed in the ways of riot. Even if you roped in the jeunesse dorée of the Countryside Alliance and the semi-retired football firm that follows Tommy Robinson around, you'd still struggle to get enough people to do more than punch a police horse in Whitehall. When a paid windup merchant like Brendan O'Neill says there "should" be riots, he isn't inciting violence so much as reflecting his own history in the delusional Revolutionary Communist Party where a popular uprising was always around the next corner.

A similar confusion can be seen in the media's imaginative reading of the Labour party membership, who are thought to be both more "moderate" (in the manner of Jess Phillips or Wes Streeting, naturally) and yet simultaneously deserting in droves because they can't abide Jeremy Corbyn. The reality is that most of the membership are on the left, as they have traditionally been, and are not particularly sympathetic to the media's favourites among the PLP (that no one has been deselected so far reflects the still cumbersome rules and that the most egregious offenders have already jumped ship). That is why they elected and re-elected Corbyn, and why many are unimpressed by the counterproductive behaviour of Tom Watson and irritated by journalistic bias. The idea mooted early in the week, that the membership would allow their preference for remain to sideline their socialist beliefs, was always wishful-thinking by commentators who habitually look down on the Labour conference as a cross between an emboldened rabble and the gathering of a religious cult.

The trope of the king's evil advisers survives not just for structural reasons - that it simplifies and personalises politics for time-stressed journalists under orders to write engaging stories with a human angle - it also plays a clear ideological role in emphasising individual agency over democratic deliberation and solidarity. A more prosaic reason is that advisers provide ready-made scapegoats for government failure, though it is noticeable that in recent years this has tended to lead to such figures being characterised more as jokers or fools, in the manner of Steve Hilton or Nick Timothy. In many ways, Dominic Cummings is a throwback to an older style of Tory adviser, combining the intellectual rigour (or pretension) of an Alan Walters and the delight in chaos and subterfuge (or self-inflation) of a David Hart. What is new is that the heads of government have themselves increasingly become ready-made scapegoats: Donald Trump distracts us from the sheer malevolence of the Republicans and will have few friends in the GOP once he falls, while Boris Johnson is increasingly presented by Conservative grandees as an aberration rather than the embodiment of the party's executive incompetence and venality.

Court politics comes naturally to the Tories, but it also overtook the Labour party in the Blair years as the traditional field of struggle, the committee, was replaced by the sofa. Despite the qualms of many on the left about the current leadership's caution, and despite the best endeavours of centrists to frame developments in terms of a court or inner circle (most recently "riven" by the resignation of Andrew Fisher), it is clear that the Labour party has now reverted back to committee politics. This won't always be edifying - compromise is often messy and few movements of the left avoid disappointing their followers - but it is more democratic and more likely to lead to progressive policies overall, as the announcements during and after conference suggest. As we can be confident that the media aren't about to change their ways, we can also expect more tales of "lifelong Labour supporters" determined to vote Conservative and commentaries on how the "Stalinist" Seumas Milne has an exclusive hold on Corbyn's increasingly senile mind.

Friday, 20 September 2019

That Would Be a Constitutional Matter

The UK Supreme Court will be ten years old at the beginning of next month. It was the creation of the Blair government (set up by the 2005 Constitutional Reform Act) and exhibited both the virtues and vices of its authors' political culture. It rationalised a clearly antique and inefficient system, scrupulously separating the political and judicial powers of the Lord Chancellor and making the court independent of the Justice Ministry, but it also saddled the court with a name that raised expectations derived from the fantasy of The West Wing and thus simultaneously politicised it. The political role of the US Supreme Court is determined by two features of the US system: the presence of a written constitution that requires interpretation, and the tension that arises between the two main branches of government, Congress and the Presidency, each of which has independent democratic legitimacy. Neither feature is relevant to the UK, despite this week's hearing on the right of the executive to constrain the legislature by proroguing Parliament.

In the UK, there is only one institution that has democratic legitimacy and that is the House of Commons. We the people do not elect the monarch, the House of Lords or the Prime Minister. The executive has an indirect legitimacy only by virtue of the support it enjoys in the Commons. We would regard any attempt by the unelected institutions of the state to constrain the Commons as undemocratic. This should logically apply to the executive as well as the monarchy or the Lords, and not just when the executive does not command a majority in the House. When the government "exceeds its powers" it is in effect arrogating authority that the Commons has not granted it. This was essentially the judgement in the Miller case, which obliged the government to seek parliamentary approval for the invocation of Article 50, on the grounds that only the Commons could approve an executive action that would effectively repeal existing statute.

A similar argument was made in a submission to the Supreme Court this week by John Major: that were there to be no restraints on the exercise of prerogative power in relation to prorogation, then in the event that the Commons approved a bill to abolish the executive's rights in this area, a Prime Minister could simply prorogue Parliament and thereby cause the bill to fail. Similarly, a Prime Minister who loses a vote of no confidence could use the 14 day grace period provided under the Fixed Term Parliaments Act to prorogue Parliament and thereby escape the consequences of defeat. Of course, this would only delay the inevitable reckoning, but it would also be a clear abuse of power that involved the executive impeding the Commons. The point generalises beyond the narrow issue of prorogation: prerogative power can effectively be used to constrain the Commons without its consent.

The long history of the struggle for supremacy between Crown and Parliament has seen an inexorable advance by the latter. This has been boosted by the moral authority of an expanding democracy, but it has also benefited from executive over-reach in the exercise of prerogative power. Each attempt to constrain the Commons has resulted in a counter-movement to restrain the executive. Much of this has taken the form of establishing precedents, thereby evolving new conventions. For example, after the debacle of the Iraq War and the 2015 vote on intervention in Syria, it is now inconceivable that a government would commit the UK to military action without the express approval of the Commons. This isn't explicitly mandated by law or even in the pages of Erskine May, but it is now commonly understood that the executive no longer has an exclusive privilege to initiate military action except in extremis.

The legal community's consensus on the current debate is, predictably, that the court should not be drawn into making judgements about political decisions. The alternative proferred by the likes of David Allen Green is that Parliament should legislate to formalise constitutional conventions around the use of prerogative power, rather than commit to the larger challenge of developing a written constitution: "Each prerogative power that can be exploited by the prime minister needs to be made subject to formal requirements such as the approval of parliament". Crucially, this acknowledges that authority ultimately must vest with the Commons, whether through explicit statute or contingent approval, which means that the Supreme Court should have little or no role to play. That the Court is now involved highlights the absence of a formal constraint on the executive, however it does not mean that the authority of the Commons can be ignored on a technicality.

The Supreme Court can pass judgement on secondary legislation created by the executive, but it cannot challenge primary legislation enacted by the Commons (though it can make a "declaration of incompatibility" in  respect of the European Convention on Human Rights). The Court itself is the creation of the Commons and thus subject to its authority. The question of "justiciability" in respect of the executive's exercise of the prerogative power of prorogation is something of a red herring. What matters is not existing statute but the intention of the Commons. The question is whether the authority to prorogue Parliament ultimately derives from the Commons itself. Given that the only answer consistent with democratic legitimacy is "yes", then it's hard to see the Supreme Court finding in the government's favour.

If the Court decides that this particular prorogation is unlawful, it may do so in a manner that does not question the executive's right to exercise prerogative power. In other words, it may simply find that the government made an administrative error and acted ultra vires. In theory, Johnson could recall Parliament and then, more carefully, prorogue it again. However, that would also provide an opportunity for the Commons to seize control of the order paper and pass a bill mandating that all future prorogations be approved by the House. If the Court finds against the government, it is still likely that legislation to formalise and make watertight this understanding will be passed anyway, either by this or a future parliament. The bottom line is that even if Johnson gets away with it on this occasion, the executive's prerogative power will probably be further reduced. He has recklessly led the Crown to another defeat.

Saturday, 14 September 2019

The Liberation of Politics

If the aim of the market is the liberation of the economy from democratic interference, then the aim of populist authoritarianism is the liberation of politics from institutional democracy. Many liberal commentators recognise the latter to be true, but few are prepared to accept that it is connected to the former: that the erosion of democratic institutions and norms is the direct consequence of the empowering of the market. Instead, the "assault on democracy" is presented either as a baffling malignancy that originates at both ends of the political spectrum or as a lack of virtue on the part of particular politicians. This leads to a fatuous bothersiderism in which, to pick a current example, Jeremy Corbyn's scrupulous observance of democratic norms, notably his belief that Labour should respect the referendum result, is held to be on a par with Boris Johnson's cavalier negligence and abuse of office.

For some, like Jonathan Freedland in The Guardian, the recent events in Parliament are evidence of constitutional resilience and the "political courage" of Tory rebels (he grudgingly accepts that Labour played a part in defeating the government), which he compares unflatteringly to the US: "The Republicans in the US Congress have failed that test, refusing to do their duty by restraining a president bent on trampling on the constitution. In the last fortnight, Britain’s politicians – or enough of them – have shown their US counterparts how it’s done." You wonder what it will take to convince him that the Republicans are perfectly happy with Trump and consider their duty to their class to be paramount. Freedland's solution for the UK is a written constitution - "one that would spell out the limits on executive might" - but this simply limits democracy to the dynamics of Parliament. It ignores that wider field where democracy has been marginalised by the market.

If Jo Swinson's belief that neither Johnson nor Corbyn is "fit for office" has any objective foundation, it is in respect of their willingness to be constrained by institutions. The flaw in her reasoning can be seen by comparing the fact of Johnson's disregard for democratic restraint in his proroguing of Parliament and the track record of Corbyn in his adherence to Labour's own constitution. The latter caution has been a major reason why the progressive reform of the party has been painfully slow, despite his democratic mandate. The idea that such a man would, if he became a caretaker Prime Minister tasked with extending Article 50 and scheduling a referendum, then abuse the office for party or personal advantage is simply not plausible (nor is the idea that Seumas Milne would be a leftwing Dominic Cummings). Swinson's judgement has all the analytical rigour of a playground taunt.

Many self-styled defenders of democratic institutions are guilty of bad faith, often elevating the interests of one particular institution or another to the detriment of wider democratic practice. Remainers who currently bang on about parliamentary sovereignty vis-à-vis the executive but also advocate the cancellation of the 2016 referendum result, as Swinson does, are an obvious case in point. While the decision to hold that public vote has since set the cat among the constitutional pigeons, it doesn't follow that it was a mistake, whatever David Cameron may now think, and it certainly doesn't follow that the difficulty in absorbing the result into the constitutional framework should in any way invalidate it. The most ridiculous position adopted by that framework's liberal defenders is the attempt to reinvent the monarchy as a pillar of democracy. It simply shows the weakness of other institutions when the Queen throwing imaginary shade is presented as a symbol of defiance.

The decay of our democracy is not merely the result of an institutional rot from within - the preservation of antique forms, the venality of the political class etc - it is also the product of those external forces that have deliberately weakened our political institutions in the process of freeing the economy from democratic control. As more and more of the management of public affairs has been ceded to the market, so the institutions of the democratic state have been both reduced in their scope and weakened in their ability to carry out their residual duties of care. This means that among the chief culprits in the erosion of democracy are those liberals who now loudly lament its currently parlous state. The MPs who speak carelessly of "coups" and insist that they are protecting democratic rights are often the same ones who have cheered privatisation and the rolling back of the welfare state.

The same MPs have also been vocal in supporting the media's presentation of the working class as desiring a backward-looking communitarianism that is culturally at odds with the current Labour party. This is both exaggerated, through a focus on a very narrow definition of that class (essentially white, small town and elderly), and also misrepresented in its nature, thus the defence of the welfare state and the appetite for industrial investment is elbowed-out in favour of expressions of bigotry. The motivating force behind contemporary nationalism is clearly a defensive response to neoliberal globalisation and the incursion of the market. This is why it should be seen as nostalgia for the postwar nation state in the round, rather than just nostalgia for a more culturally homogeneous and socially conservative society, and thus potentially more supportive of Labour's shift to the left than antagonistic towards it (whether Labour should indulge this nostalgia is another matter).

This counter-movement has been hijacked by the political right in support of a populist authoritarianism that further erodes democratic accountability, but it has also been enabled by centrists for whom the market is blameless and the working class's lack of virtue is an easy excuse to ignore its more profound concerns. In the UK, the coincidence of nationalism and disaster capitalism is presented by the liberal media as little more than a criminal conspiracy and its advocates as opportunists. The emphasis placed on "dirty money" and social media manipulation since 2016 hasn't helped. This serves to distinguish the political centre from the right in terms of virtue, but in doing so it obscures the responsibility of modern capitalism for these social tides. It also distracts from the normalisation of authoritarianism since the 1990s by the political centre's eager adoption of rightwing attitudes, such as the division of society into deserving and undeserving.

Liberals are happy to highlight some of the sovereigntist ironies of Brexit - how taking back control has seen Parliament and the judiciary denigrated, how freedom from the EU means kowtowing to the US - but few have been prepared to acknowledge that these reflect tendencies towards the weakening of national political institutions that predated 2016 and were significantly enabled through membership of the European Union. The point here is not just the EU's well-known "democratic deficit", but the wider removal of national institutions from democratic oversight, such as the independence of central banks and the subservience of national economic policy to market confidence. In the long run, the liberation of politics from democracy has been advanced mainly from the political centre, not from the right, let alone the left.

Friday, 6 September 2019

Against The Clock

So what have we learnt this week? First, Boris Johnson is going all-in on no-deal. The absence of any substantive proposals to amend the Withdrawal Agreement is clear evidence of this. To that end, marginalising senior anti-no-dealers within the Tory ranks, like Philip Hammond and David Gauke, makes sense. Symbolically, it marks the death of "One Nation Toryism" and its replacement by a more distinctly nationalist temper, which will be seen by many on the right as the fulfilment of Thatcher's project. The risk is that this not only alienates Tory-voting remainers, but that it also disturbs centrist Conservatives who fear the associated social and economic baggage of a sharp turn to the right. As Thatcher discovered, they'll suppress their qualms and support you while you're winning, but they'll drop you sharpish if defeat looms. Johnson knows he is running against the clock, hence his determination to meet the 31st of October deadline.

Second, it's now clear that Johnson always intended to call an early general election. The lengthy prorogation looks less like a wheeze to ensure no-deal by blocking MPs' counter-measures and more like a plan to create a benign environment, in which the government is free from scrutiny in the Commons and can rely on sympathetic TV and press coverage, before the start of the official election campaign. That most of Johnson's public commitments this week have been campaign photo opportunities suggests that Number 10's plan is to use the infrastructure of the state for partisan advantage. The prompt removal of the whip from 21 MPs suggests that he always intended to terminate the current parliament rather than compromise to maintain the government's slender majority. Again, Johnson's brutality in defenestrating veterans such as Ken Clarke and Nicholas Soames makes tactical sense, even if it does risk alienating some party members and makes it uncomfortable for his media supporters.

The general assumption is that a more Faragist party will not only recover the reactionary voters who peeled off to UKIP or abstained under Cameron and May, but it will also win a significant part of the "white working class" vote, particularly in Labour's "Northern heartlands". Of course there has never been a shortage of reactionary working class voters, but they have traditionally cleaved to the Conservative Party in any case. What's doubtful is whether the Tories can widen their appeal to Labour voters for whom patriotism and social conservatism are part of a bundle with an interventionist state and well-funded public services. Media safaris to the North of England will no doubt continue to find plenty of "lifelong" Labour voters who will now back the Tories because of Brexit, but there is little evidence to date of a sustained shift in voting patterns. The Tories are widely mistrusted among working class voters and that isn't going to change overnight, particularly when they are led by a man with a reputation for deceit and treachery.

Labour's declining support in the polls since April has largely been the counterpart to a rise in support for the Liberal Democrats. Given the binary choice of the next election, assuming it happens before Brexit, there is likely to be a shift back to Labour. Likewise, the oscillation in Tory support finds its counterpart in support for the Brexit Party. Johnson's primary aim is to attract that party's supporters back to the Tory fold. Attracting Labour voters is a secondary consideration, even if it suits the media to emphasise it as part of the anti-Labour narrative. Johnson needs not only to focus the campaign on Brexit, he also needs to convince leave voters who want no-deal that he can be trusted to deliver. To that end, he needs to rule out the possibility of a last-minute deal with the EU - in effect a revival of May's deal - hence he can now only commit to no-deal. The opposition's emphasis on Johnson's untrustworthiness is tactically sensible, as it helps shore up support for the Brexit Party, but this could be neutralised if Farage formally endorses him as part of an electoral pact.

Fighting an election before the 31st of October would give Johnson momentum, while also stymieing the possibility of a counter-revolution within the Conservative party. The clarion call would be less "kick out the bums", though that would undoubtedly figure, than the trusty old demand to "give me the tools to finish the job". A later election would be more defensive: save Brexit rather than win a clean break. If Parliament enacts the Benn bill, which would require Johnson to go cap in hand to the EU27 and request a further extension, there is a chance that he will simply resign. A caretaker government under Jeremy Corbyn, which now looks more likely simply because the Tories would see it as in their interest to abstain in a vote of confidence short-term, would then have to take responsibility for the extension, thus getting the Tory leader off the hook.

This would be an outcome that would satisfy both Johnson and Corbyn. The former could campaign against a Parliament that "stole" Brexit, while the latter could point out that the roof didn't fall in while he was in Number 10 and could (bizarre thought) fight the election as the incumbent Prime Minister. Though Johnson's failure to deliver Brexit by the end of next month would be an embarrassment, an extension of the Article 50 process to the end of January means that he can still advance the demand for a majority big enough to secure Brexit in an election in November. The belief that he would be fatally damaged by this setback ignores that he is a politician who routinely rises above his own failures and is incapable of embarrassment (witness his response on Wednesday to the demand he apologise for this "letterbox" comments). Johnson has the ability to survive blows that would fell any other politician.

What he doesn't have is time. This week he has fractured the Conservative Party. While it would probably hang together were an election campaign underway, it will almost certainly descend into civil war at the earliest opportunity. Johnson's hopes of reconstituting the party with Farage's foot soldiers may prove forlorn. Once a no-deal Brexit is formally achieved, there is no guarantee that this constituency won't fragment and disperse as it did in 2017, and until Brexit happens it will remain a thorn in his side. Johnson needs Brexit done and a quick election victory, preferably in October, to give him the five years it will take to rebuild the Conservative Party and to defray the likely costs and compromises that will arise from our departure from the EU. If the election is put off till November, or even December, he risks the Tory civil war erupting during conference season.