Brexit and the Deficiencies of Parliament - Malcolm Lowe

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by Malcolm Lowe

If things turn out much better or much worse than estimated, nobody should be surprised that the Bank got it wrong.

• What has characterized the last year of UK politics is that individual MPs in the various parties have begun to seek the same freedom of action as US Members of Congress. So far, however, they are both fearful of suffering the same fate as the 21 banned by Johnson and remain inexperienced in the exercise of such freedom.
• Johnson now has two alternatives. One is to reinstate the 21. His defenders claim that this would encourage similar defections in the future. The other alternative is to stick to his unpopular decision and risk being dismissed himself by his party. Either way, the unwitting heritage of Johnson may include the end of the tyrannical powers of the UK PM.
• The Bank of England in its latest report estimates that the consequences of no-deal on October 31 will be less dire than it thought a year ago, but dire they will be: GDP will shrink by 5.5%, inflation will rise from 2% to over 5%, unemployment will "surge to 7% rather than 7.5%, up from a current 45-year low of 3.8%." In short, a very healthy economy will turn into a problematic economy. The most worrying problem, however, is that the Bank is engaged in guesswork about an event without precedent. If things turn out much better or much worse than estimated, nobody should be surprised that the Bank got it wrong.

Pictured: Westminster Palace in London, seat of the Parliament of the United Kingdom. (Image source: Adrian Pingstone/Wikimedia Commons)

It is remarkable that the UK Parliament has spent almost a year of debates about the Brexit deal agreed by Theresa May's government and the European Union. Indeed, about one small detail of that deal. We shall briefly describe what that detail is before explaining that the inordinate resulting delay reflects deep and longstanding dysfunction in the whole parliamentary system of the UK.

The deal consisted of two documents, the Withdrawal Agreement (WA, 585 pages) and the Framework for the Future Relationship (FFR, 26 pages). Most of the WA consists of regulations obviously needed for winding up UK participation in EU institutions, settling mutual debts, safeguarding the interests of UK citizens resident in the EU and vice versa, and the like. Even Boris Johnson regards all that as basically good and necessary.

The bone of contention is rather the so-called "Backstop" or (properly) the "Protocol on Ireland/Northern Ireland." This is a set of procedures designed to preserve the current "soft border" between the two parts of Ireland until the Protocol can be replaced via the negotiations that will turn the FFR from a shortlist of intentions into a permanent relationship between the UK and the EU. At 174 pages, it is nearly a third of the WA. Yet the real contention is just about Article 20 of the Protocol – a mere page and a half out of a total of over 600 pages.

Article 2 of the Protocol asserts that "The Union and the United Kingdom shall use their best endeavours to conclude, by 31 December 2020, an agreement which supersedes this Protocol in whole or in part." But Article 20, which specifies how the regime of the Protocol will end, assigns no time limit to the life of the Protocol; it merely stipulates that the Protocol will cease to apply when the EU and the UK jointly agree that it is no longer needed. Critics rightly pointed out that the Protocol could just live on forever, or at least that it could be abused by the EU to extract favourable terms from the UK in the FFR. The only way that the UK could conceivably escape from the regime of the Protocol without the consent of the EU would be via the provisions for arbitration of disputes in Articles 170ff. of the main body of the WA. But the arbitration would be tedious and its outcome uncertain.

Your Choice of Parliamentary Systems

In European countries, the usual system of parliamentary elections is qualified proportional representation. Often parties get no seats if their vote falls below some set percentage of all voters: the threshold is 1% in the Netherlands, 3% in Greece and 5% in Germany. Sometimes the party winning the most votes is given a bonus of extra seats in the parliament. Party discipline is strict. Someone who votes against the party line is readily kicked out of the party, but this need not be the end of a political life. Instead, if a number of parliamentarians are dissatisfied with the party line, they can break away and have a realistic chance of returning to parliament as a new party. New public issues may lead to the collapse of a government and the formation of a new coalition. Thus the system has built-in flexibility.

There have basically been only the same two parties in the United States since the Civil War, largely due to the "first-past-the-post" electoral system: one seat is available in each constituency and whoever gets the most votes, even if it is a minority of the total votes, wins the seat. This makes it difficult for a new party to build up strength. Nonetheless, the system is flexible because party discipline is loose, voluntary rather than imposed. Voting against the party line need incur no penalty. Cross-part coalitions form in Congress to support or oppose proposed legislation. Also, the primaries system allows an individual to become the party's candidate regardless of what party functionaries want. Donald Trump is a striking example.

The UK is an exception to both Europe and the US: the electoral system is first-past-the post, but for nearly a century party disciple has been severe. UK PM Boris Johnson has just dismissed 21 Conservative MPs who voted with the opposition, including some who held high ministerial offices under Theresa May or her predecessors, and the local party organizations are dutifully picking new candidates to replace them in an imminent election. In the US nothing could prevent them from competing in primaries and in Europe they would have a fair chance of forming the nucleus of a new party and returning to parliament, but in the UK their careers are seen as finished.

Since the Labour Party replaced the Liberal Party as the second largest party in the 1920s, Liberal voters have been grossly – indeed grotesquely – underrepresented in the House of Commons. The reason is that in many constituencies either Labour or the Conservatives always get the largest number of votes, whereas Liberal voters are more widely but more thinly distributed across the UK. In 1983, for example, Labour won 209 seats with 27.6% of the votes, whereas the Liberals (running in an alliance with Labour defectors) won only 23 seats with 25.4%. A comparable phenomenon: in the general election of 2015, the Scottish National Party won 56 out of 59 Scottish seats in the House of Commons with exactly 50.0% of votes in Scotland.

The result of all this, for many decades now, is that Prime Ministers of the UK have enjoyed far greater powers than the US President. They could not merely appoint and dismiss ministers at will but mostly enjoyed an automatic majority in the House of Commons for whatever they wanted. The PM risked dismissal only in a general election or if the whole party rose up to replace him or her. Until 2011, however, the PM could call a general election at will, reducing that danger.

Instructive in this regard is a passage from Aristotle's Politics III.14.[1] After describing two kinds of monarchy, he continues by defining "a third which existed in ancient Hellas" as follows:

"This may be defined generally as an elective tyranny, which, like the barbarian monarchy, is legal, but differs from it in not being hereditary. Sometimes the office was held for life, sometimes for a term of years, or until certain duties had been fulfilled."

The judges in the biblical Book of Judges and the Roman dictator are ancient examples of respectively the lifelong and time-limited variants of the elected tyrant. Examples from modern times are the Pope and the UK PM. But there are more points to be learned from Aristotle. One point is his distinction between the formal constitution and the – maybe unnoticed – real constitution (Politics IV.5). For instance, Athens was the ancient democracy par excellence, yet Pericles was virtually a monarch – albeit a constitutional one – during the long years in which he was automatically re-elected chief of the ten generals. (He never belonged to the Council of Archons, formally the highest body in the state, and where he would have been allowed to hold office for no more than two years in a lifetime.) So the UK is commonly described as a democracy, but effectively it has had a long series of limited-term monarchs who just happen to be called "Prime Minister."

Other points are that many constitutions are a mixture of monarchy, oligarchy and democracy and that, from the viewpoint of Aristotle and other ancient writers, most modern "democracies" are rather oligarchies, a small group of people running a country, since the dominant roles in the constitution are exercised by oligarchies. The basic point here is that, from the ancient viewpoint, a democracy is a state in which the people do not merely choose their rulers but are empowered to determine government policies, such as at the monthly meetings of the demos (the assembly of all adult male citizens) in Athens. The Archons of the current year would present their suggestions for steps to be taken, but any citizen could rise up to propose an amendment to be voted upon. The only modern state that comes close to this is Switzerland, where referenda can be called so easily that the government (also at the canton level) is obliged to take account of current popular opinion before adopting any matters of policy.

Elsewhere than in Switzerland, what is typical is that at a general election you are offered a choice between the parties that want to rule you for the next so many years. Since each political party is typically ruled by a small oligarchy of leading members, this kind of constitution is not particularly democratic, from the ancient viewpoint, but rather a form of "competitive oligarchy." Note, too, that even if the parties set out policies in a manifesto, they are at perfect liberty to disregard those proposals once they are in office.

There are also cases where local oligarchies band together on occasion to form a "super-oligarchy." Consider Washington, DC, where the president, his cabinet and advisors and the Congress – including both parties – amount to hardly a thousand individuals who collectively rule over three hundred million. The Athenian demos, by contrast, numbered in the tens of thousands out of a total population of well under a million. (Modern commentators who complain that the demos excluded women and slaves have not understood that its membership was based on the obligation to bear arms. Women and slaves were free of that obligation and would be treated as non-combatants by an enemy army.)

Remember also the immense sums of money that US politicians have to spend during an election, and it is clear that few citizens indeed have the means to do so. Whether you are a Republican or a Democrat, you can hardly participate in ruling your country without belonging to the rich few. Astronaut John Glenn learned this to his regret when, after losing his campaign to become the Democratic candidate for the presidency in 1984, he "carried $3 million in campaign debt for over 20 years before receiving a reprieve from the Federal Election Commission."

Another super-oligarchy is the ruling cliques that run the European Union. After each election to the European Parliament, the parties get together and decide: one party will appoint the President of the European Parliament, another the President of the European Commission, and so on. Political opponents they may be, but they share an oligarchic interest in dividing the spoils.

The biggest super-oligarchy of all, however, is the so-called "international community." The name suggests a worldwide community of millions or billions, but its "citizens" consist of the leading politicians, journalists, professors and other miscellaneous individuals in the world, or maybe merely in the largest and richest countries: not such a large number.

Returning to the UK case, the PM may be an elected tyrant, but often he rests upon the backing of an oligarchy with very clear interests of its own. Today's UK has become an extreme such case: Jeremy Corbyn rests upon the Momentum organization, which has penetrated positions of power in the Labour Party, while Boris Johnson is the protagonist of the so-called European Research Group (ERG), which makes up between a quarter and a third of the Conservatives in the House of Commons, but is more popular in party branches. Also, Labour is mainly financed, and decisions at its conferences are largely determined, by an oligarchy of trade union bosses.

What then has characterized the last year of UK politics is that individual MPs in the various parties have begun to seek the same freedom of action as US Members of Congress. So far, however, they are both fearful of suffering the same fate as the 21 banned by Johnson and remain inexperienced in the exercise of such freedom. One result is that they find it easier to band together against what they do not want, such as a no-deal Brexit, than to formulate a detailed proposal of what they do want instead. We shall now survey, from those perspectives, the last year of Brexit deliberations in the House of Commons.

A Year Mainly Wasted

Explained above was that the contention over Brexit comes down to Article 20 of the Protocol. Moreover, as we pointed out in December and January, there was a simple way to amend Article 20 and end the problem. It would be to stipulate that the Protocol should operate until the end of 2020 and thereafter be renewable annually by mutual consent of the UK and EU. The preservation of a soft border in Ireland, it is generally recognized, is as much a UK as an EU interest and commitment. So, provided that the negotiations on the FFR were making progress and proceeding in good faith, renewals of the Protocol would be a mere formality. We were even able to formulate, using the jargon of the WA, the exact form of wording required.

Strangely, nobody else seems to have even considered such a solution. Certainly, no specific rewording of Article 20 was suggested by any of the many participants in the long debates in the House of Commons. This was partly because the EU negotiators, led by Michel Barnier, haughtily and contemptuously told their UK counterparts that not a word could be changed in the WA. And partly because for too long Theresa May was acting more as an envoy from the EU to the UK Parliament than as the reverse.

Instead, UK parliamentarians engaged in futile exercises. Either they proposed alternative arrangements for maintaining a soft border, although it was ridiculous to try to change 174 pages instead of a page and a half, given Barnier's arrogant stance. Or they speculated about a "Canada-style" or a "Norway-style" approach, without perceiving that such proposals pertained to the FFR and not at all to the WA.

Eventually, Theresa May – an undoubtedly honest and diligent character but a slow learner – realized that she had to start pressing the EU to address the evident defect of the Protocol. The result was that the leaders of the remaining 27 EU countries at their summit on March 11 gave legally-binding assurances that the application of the Protocol would genuinely be temporary.

This should have been enough to get the WA through Parliament, but the ERG of Conservative MPs continued to oppose it, although the opposition was eventually whittled down to about 25 "Spartans." It was then realized that the WA could now pass the House of Commons if the Spartans were offset by Labour MPs who favoured it in principle, of which there was a considerable number.

Yet the subsequent negotiations between representatives of the Labour Party and the Conservative Party came to nothing because the Labour leader Jeremy Corbyn insisted that the price must be a radical rewriting of the FFR. This demand eventually scuttled the prolonged negotiations.

In the meantime, Theresa May has been replaced by Boris Johnson, who boasted that he would go to Brussels and use the threat of a no-deal Brexit to force the EU to cancel the Protocol in its entirety. This, although the EU quickly dismissed his threats and there has been, from the beginning, an evident majority in the Commons against no-deal. Moreover, the Attorney General, who has been involved in the wording of the WA from the beginning, reportedly warned Johnson that his proposal to delete the Protocol in its entirety "was a 'complete fantasy' and would put the UK on course for a No Deal split from Brussels."

Right now, Johnson has no majority to pass anything in the Commons, let alone on Brexit. Johnson's Brexit strategy has been frustrated by those 21 Conservatives who voted with Labour to take away the threat of no-deal. And nearly half of the time has been wasted during which the Protocol was supposed to be rendered unnecessary by further negotiations on the FFR.

The vanity of Johnson's boasts was shown on September 4, a very bad day for him. It began with a disastrous Prime Minister's Questions (PMQ), in which he lost the argument – indeed showed his lack of arguments – by hurling ridiculous epithets at Corbyn ("chlorinated chicken," "great big girl's blouse"), using a four-letter word, and violating the best-known convention of the House by addressing Corbyn by name instead of as "my right honourable friend." That may sound trivial, but for a PM to be so slapdash at PMQ undermines confidence that he can be anything other than slapdash in weightier matters. Second, the House next passed a law to prevent a no-deal Brexit. Indeed, the law expressly orders the PM to go to Brussels and request a further deferral of the Brexit date, destroying his promise to achieve Brexit by October 31. (The law even spells out the exact wording of the written request that the PM must take with him, reducing him to a postman.) Third ignominy: his request for a new general election also failed, since the opposition insisted that he must first go cap in hand to obtain an extension of Brexit – then there can be an election.

The next day, Johnson earned fresh criticism from no less than John Apter, the national chairman of the Police Federation of England and Wales. Johnson was invited to give a speech about his initiative to increase police numbers, while standing in front of an array of new police recruits. When journalists then asked him questions about Brexit, the right thing to do would have been to decline to answer or to utter a brief platitude about hoping for a good outcome. Instead, he thoughtlessly used the occasion to deliver a harangue against Corbyn. Apter said that he was "surprised" that the recruits had been used "for a political speech," adding:

"I am sure that on reflection all concerned will agree that this was the wrong decision and it is disappointing that the focus has been taken away from the recruitment of 20,000 officers."

Johnson's summary execution of the 21 has also deeply upset fellow Conservatives. Sajid Javid, who as Chancellor of the Exchequer is the most senior member of Johnson's cabinet, quickly begged him to reconsider, as did many when Johnson was invited to a meeting of the 1922 Committee (the informal association of all backbench Conservative MPs). In a collective letter from the "One Nation" group (the moderate counterpart of the ERG), over a hundred Conservative MPs demanded the reinstatement of the 21:

"We are now calling on the Prime Minister to reinstate the party whip to our valued, principled and dedicated colleagues. The PM's decision to remove the party whip from these MPs is wrong in principle and bad practical politics! It's time to unite, not divide!"

That MPs should collectively use such peremptory language in addressing a PM from their own party may be without precedent. To add to Johnson's woes, his brother Jo(seph), whom he had appointed a minister, has resigned, claiming that "In recent weeks I've been torn between family loyalty and the national interest."

Johnson now has two alternatives. One is to reinstate the 21. His defenders claim that this would encourage similar defections in the future. If that means permitting senior and long-serving party members (one of them is the "Father of the House," Kenneth Clarke, an MP since 1970) to dissent occasionally on matters where they discern a great danger, we think that it is even desirable. The other alternative is to stick to his unpopular decision and risk being dismissed himself by his party. Either way, the unwitting heritage of Johnson may include the end of the tyrannical powers of the UK PM.

What Is No-Deal Actually About?

In closing, we shall note what the controversy over a no-deal Brexit is about, since the UK media report it in misleading ways and with arcane terminology. For instance, the popular press continues to label as "Remainers" those MPs who are known to have voted "Remain" in the referendum of 2016. In the case of Labour and Conservative MPs, with very few exceptions, the MPs concerned are now committed to leaving the EU, just not without a deal. Only the Liberals and the Scottish and Welsh Nationalists are still committed to overturning the result of the referendum.

First, some facts. It is acknowledged by all that if the UK leaves the EU on October 31 without a deal that redefines the trade and other relations between the two, it will deal a blow to industry in them both and cause inconvenience (to say the least) to the citizens of both. Johnson and his supporters claim that the UK can ride out the blow with ease, his opponents deny that vehemently. Various problems have been identified and the institutions of both the UK and the EU have made preparations for them, but especially smaller businesses remain confused and unready.

The Bank of England in its latest report estimates that the consequences of no-deal on October 31 will be less dire than it thought a year ago, but dire they will be: GDP will shrink by 5.5%, inflation will rise from 2% to over 5%, unemployment will "surge to 7% rather than 7.5%, up from a current 45-year low of 3.8%." In short, a very healthy economy will turn into a problematic economy.

The Bank thinks that the "improvement" over a year ago is due largely to the time made available for preparations and that there will be a further "improvement" if the departure is postponed until January 31, as the newly passed law demands. The most worrying problem, however, is that the Bank is engaged in guesswork about an event without precedent. If things turn out much better or much worse than estimated, nobody should be surprised that the Bank got it wrong.

Second, some figures. The most recent public opinion poll is being quoted selectively by one and all in favour of one's own position. But the most revealing details, we think, are these:

"Asked to choose between two options – a No Deal Brexit and Mr Corbyn entering Downing Street – voters chose the former by 52 per cent to 31 per cent. However, when asked whether they were in favour of a No Deal exit, just 22 per cent said it was their preferred outcome. Some 37 per cent said they wanted to remain in the EU, compared to 32 per cent saying Britain should leave without a deal. Overall, however, a separate question found the voters opted 53 per cent for Remain and 47 per cent for Leave."

The headline of the article quoted, however, selects from those figures merely "most want No-Deal rather than Jeremy Corbyn, poll shows." We find that grossly misleading, but unfortunately it is typical of how issues are being reported. People very definitely do not want no-deal, they are just even more afraid of a government led by Corbyn. Moreover, this dilemma has been found in previous polls, yet much reporting lets you think that the people are unworried about no-deal.

As for the information indicating that a second referendum would today end in a victory for "Remain," overturning the result in 2016, it is nothing new. A long series of polls conducted from 2016 until today shows that for almost all of that time "Remain" had a lead over "Leave," albeit by fluctuating percentages and with large numbers of "Don't know/undecided."

Thus MP Iain Duncan Smith, a former Conservative leader, is utterly wrong in his claim that "This is about Parliament versus the people. Boris Johnson is on the side of the people, who voted to leave the EU." Both Parliament and the people are perplexed and evenly divided, and the perplexity of each matches the perplexity of the other.

Malcolm Lowe is a Welsh scholar specialized in Greek Philosophy, the New Testament and Christian-Jewish Relations.

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[1] The discussion of Aristotle in this section and its application to modern situations is based on my article in the Welsh philosophical journal Efrydiau Athronyddol 63 (2000), 64-95, entitled "Crefydd a Democratiaeth," ("Religion and Democracy"). Anyone who knows Welsh can now read the article online. If anyone wants and has the means to publish an English translation, I would consider preparing one.

Malcolm Lowe is a Welsh scholar specialized in Greek Philosophy, the New Testament and Christian-Jewish Relations.

Source: https://www.gatestoneinstitute.org/14849/brexit-parliament

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