I read a book last year called How Democracies Die which was written by two American academics who had clearly been motivated to write it due to the rise of Trump in the USA. However, rather than being just another hatchet job on Trump, it was instead a very thoroughly researched study on the degradation of democracies ranging from Germany and Italy between the wars all the way through to the likes of Turkey and Venezuela in modern times. Clearly there was considerable focus on the United States however, where bitter partisanship and political brinkmanship have become the norm since the 1990s. Democracies degrade and die not just because of over-mighty executives, as you might expect liberal American commentators to conclude, but also through dysfunctional legislatures, politicised judges (and the tendency of parties to a political dispute constantly to resort to the courts), and polarisation and intolerance in public debate and the media.
And the recipe given for maintaining healthy democracy? Two core ingredients: tolerance and forbearance.
The first of these – tolerance – is clearly at a pretty low ebb in both Westminster and (perhaps to a lesser extent) in the country at large. I do not intend to cover this phenomenon here, suffice it to say that John Stuart Mill would be less than proud of some of the public discourse today in Britain.
And what a lack of tolerance leads to is a lack of forbearance. This is a term less familiar to many, but it basically means that those with power should exercise it with restraint, and that the spirit of the law should be seen as more important than its technical letter.
This forbearance, if properly exercised, should avoid reducing politics to its lowest common denominator. And forbearance is very important indeed in a constitution that functions through principles and conventions, rather than codified and entrenched rules.
In the current Brexit stand-off we see many political actors letting go this forbearance and using every trick in the book to gain partisan advantage. Yet though this advantage may be real, it is also temporary, whereas the damage it does may be long-lasting and even permanent. Here are some of the most egregious recent examples:
- A partisan Speaker. One of the Labour Party’s parting shots just before Gordon Brown lost the 2010 election was to connive in the proposing and electing of a Commons Speaker who the great majority of Conservative MPs found actively irritating and distasteful. Whether they were fair to think this is beside the point. Using the fact that John Bercow was then a Tory to disguise their intention, Labour put into the referee’s chair a man who about half the Commons chamber distrusted. This broke with the long-standing convention of selecting a Speaker who commanded respect on both sides of the house, and who would be trusted to be impartial. Since then, Bercow has become a deeply divisive and destabilising figure. On his watch, debates have degenerated into hateful ranting and undignified stunts. Though he has claimed (often convincingly) to be upholding the right of parliament to scrutinise the government, he has also openly and gleefully taken sides over the major debate of the day – Brexit – when taking decisions on parliamentary procedure and in handling debates. As he resigned, he was cheered by one side of the commons while given the cold shoulder by the other.
Irrespective of where you stand in party politics and over Brexit, this indicates just how seriously Bercow has, through his own lack of forbearance, undermined the impartiality of the Speaker’s role. We can now look forward to Speakers in the future being forced in by parties to carry out partisan agendas, rather than put in place by cross-bench agreement to conduct the business of the Commons even-handedly. This will degrade the integrity of Parliament as an institution.
- The Abuse of the Fixed Term Parliament Act. This law was introduced in 2010 for both temporary and practical reasons and for more long-term and principled reasons. Firstly, it was there to underwrite the 2010 coalition deal between Tories and Lib Dems. Secondly, however, it was intended to strip the PM of the power to dissolve parliament and call an election at a moment of his choosing. This was at Lib Dem insistence – they had long held that this conferred too much power on a PM to gear the timing of an election in favour of the governing party. This power to time elections had contributed to long periods of Tory and Labour dominance between 1979 and 2010, and the Lib Dems wanted it restrained. Such was the reasoning, and so the spirit of the law was to ensure stable government in the present, and to clip the wings of an over-mighty executive in the future.
Yet the current executive is the very opposite of strong. Now this law is being used by the opposition to keep a government in power that cannot govern whilst, in the words of one Labour MP, “hitting the government again and again”. In refusing to endorse an election, they are using a power that they have in a way that it was not intended to be used. They are actively undermining the government’s Brexit negotiations using the “Benn Act”. This stalemate would any time prior to 2011 have caused an election, and that is clearly what the country needs. Over-mighty executives may lead to “elective dictatorship”, but terminally enfeebled ones undermine the efficacy of our system just as much. Seen in this light, the abuse of the Fixed Term Parliament Act as a stick to beat a dead government becomes a major concern.
- The Prorogation of Parliament by the PM. Though it was wildly exaggerated just how threatening this act was to British democracy, it was nonetheless clearly the use of a power of Royal Prerogative which really went against the spirit of what it was there for – supposedly a mere matter of procedure to give parliament a break while a new legislative agenda is put together, or party conferences take place. With the Brexit clock ticking, the timing of this prorogation was clearly and transparently a political ploy. The Queen should probably have advised the PM against this course of action, but the Crown is very cautious in its approach to political controversies. Johnson’s decision conferred little advantage on him, whilst bringing into disrepute the system of parliamentary government and even the Monarchy. His cack-handed expulsion of twenty-one MPs from the Conservative Party also smacked of heavy-handedness with his own party’s internal rules and spirit.
- The encroachment of the Supreme Court into politics. The most interesting thing about the judgement on prorogation was not the second part (that it was unlawful) but the first part – that it was judiciable. Indeed, the High Court had only just judged the other way. Yet all eleven Supreme Court justices voted that it was for the court to decide on the matter. This unanimity was highly suspicious. I cannot believe that they all agreed. The explanation must be that they knew just how explosive their power play was, especially following the 2017 Article 50 judgement, and so they had to present a united front or have their very right to pronounce on constitutional matters brought into question. Perhaps it can be argued that the court ruling provided clarity on the constitution, but this looks like codification by the back door.
Lady Hale’s spider broach attracted a lot of attention. In future, focus is more likely to be on her political attitudes, and those of other justices, as more and more cases are brought to court by the likes of Gina Miller and perhaps Nigel Farage. Judicial neutrality will be brought into question. Parliamentary confirmation hearings for Supreme Court justices may be the corollary. Welcome to a politicised judiciary, and to the ever-increasing resort to the courts to settle matters that should remain in the political realm.
- Undermining the doctrine of the Mandate. It was agreed that a referendum would take place in 2016 on whether or not to leave the EU. It was agreed that the government would carry out the verdict of the majority vote. It was, and is, clear what the EU actually is – single market, customs union, ever closer union, and so on. There was a campaign conducted in accordance with the rules laid down by the neutral Electoral Commission. In that campaign lots of mud was slung and lies told, no doubt by both sides, as in any political campaign; but the rules and the result were both clear. Yet again and again through the courts, in parliament, within government itself and in public debate, there have been those who have challenged that mandate. They want Article 50 revoked. They want a second referendum. If they get it, they may win by a similarly narrow margin to their previous loss. What then? Others will question this new mandate.
It will not be long before the legitimacy of any democratic mandate can be called into question on similar grounds. It will only be a short contagious leap from direct to indirect democracy for the validity of a general election victory to be questioned. The basic legitimacy of the government’s right to pass laws may be brought into question if they won majorities on whatever grounds the losers pick to complain of: unfair constituency boundaries, the voting system, the age franchise, the bias of the mainstream media, the falsehoods peddled on the manifesto. The test of democracy is that legitimacy is conceded even by the defeated. Our democracy in this crisis has failed that test, and that failure may yet spread further than the referendum result.
Of course, those who are so lacking in forbearance and tolerance believe that they are doing a good deed. In this Brexit debate, almost everyone is acting in what they sincerely believe to be the public interest, and therefore they think that the ends justify the means. They think they are right. But everyone thinks that they themselves are right.
The point of democracy is that such polarising disputes between different factions who believe themselves both to be absolutely right can be aired and resolved within the rules. The means are in fact more important than the ends.
Those on both sides of this Brexit argument who say that they are fighting for democracy, and yet who refuse to exercise toleration and forbearance in their words and their actions, are in fact undermining the democratic traditions and institutions they claim to be defending.
Von Hayek