UK Not As Free?

Generations of British – no, more accurately, English – politicians have proudly reiterated Westminster’s claim to be the “Mother of Parliaments”, in the belief that England is the home of democracy. Mrs Thatcher most vividly illustrates this tendency – instructing our European partners in Bruges, for example, that “since Magna Carta in 1215, we have pioneered and developed representative institutions to stand as bastions of freedom”.

But do our institutions actually deliver the goods? How do they, and the power relationships between them, compare with those of similarly “advanced” democracies? Close examination suggests the United Kingdom is lagging behind.

The comforting doctrine of “parliamentary sovereignty” is deceptive. First, it means that we do not have “popular sovereignty” – the idea that the people of this country govern themselves. Second, it conceals the reality of executive supremacy in the UK – we are unique among western nations in giving a single party control of both government and the popular assembly based on a minority of the vote at general elections.

I recently compared the UK directly with three other European nations, Denmark, France and Germany, and two countries in the “Anglo-Saxon” tradition, Australia and the United States. The British executive’s freedom from constitutional constraint, or legal checks and balances, was exceptional across a wide range of institutional features. None of the other countries was perfect, but none of them performed as badly as the UK in every area I examined.

Britain does not make the executive subject to the rule of law, via supreme constitutional laws based on the principle of popular sovereignty. Instead, the executive, through its creature, Parliament, can change any law of the land by a simple majority of one vote. The rights, liberties and the institutions of British citizens are not protected by any special laws that government cannot easily change – unless you count the European Convention. We do not share political power between the centre, home countries, regions and local communities in the way most modern nations do. Local government in Britain has no constitutional defence at all against central power.

The House of Lords is the weakest and most unrepresentative second chamber of the countries I looked at. Our popular assembly, the House of Commons, is weaker than those of Denmark, Germany and the US, especially in its ability to scrutinise the executive and influence government policies. We do not promote open government through an enforceable “right to know”, but only through a voluntary code exercised by government itself. Our executive can begin wars or make treaties, and tell parliament afterwards.

James Madison, the great American democrat, said, as far back as 1788, that while elections represented the “primary control” on government, “experience has taught mankind the necessity of auxiliary precautions”. Historically, Britain has neglected both. A medieval voting system has been preserved and adapted to provide “strong government”. And instead of a system of formal checks and balances, the “gentlemanly capitalists” who saved democracy from the people in Victorian times ruled themselves by way of “constitutional conventions” while they ran Britain and its extensive empire. The tradition of voluntary restraint through such conventions has continued to govern political practice in the UK, while most mature democracies have adopted formal “auxiliary precautions”. The most recent examples are the shift to “right to know” laws and the strengthening of democratic regional structures.

Britain’s reliance on the conventions of an elite political culture – the ethic of the club – is now absolute. Politicians no longer play the game. This leaves the people, their rights and their institutions constitutionally defenceless against the partisan politics of single-party governments. In the 1970s, the British establishment feared the lash of unrestrained Labourism. In the 1980s, the public felt the lash of triumphant Thatcherism.

For any country, the bite of democracy lies ultimately in the prospect of losing office after an election. As Joyce Cary once observed, “The only good government is a bad government in a hell of a fright.” Britain’s electoral system is not designed to frighten the government party, or even the main opposition party. It protects both against third parties.

What can we learn from the five “peer” countries? The first need is to restore the bite of elections and to free Parliament from domination by a single-party executive. The most obvious way of accomplishing both these goals is to follow the examples of Denmark and Germany.

The public in both countries vote for their MPs in elections based on proportional representation. The parties in both countries are therefore obliged not only to share power with other parties, but to maintain their position in the popular house. This means that the lower houses in both countries have more power to scrutinise government and to influence its policies.

In Germany, the regions are represented in the upper house and their representatives have real, and justifiable power, over government proposals. Denmark abolished its upper house and gave MPs in the lower house more powers to check the government.

The most interesting check on the executive in Denmark is that a third of MPs can force a national referendum on any legislation on which they have been outvoted – although for the bill to be finally defeated, the majority voting a against it in the referendum must be equal to at least 30 per cent of the electorate.

An alternative way to break the executive stranglehold on the popular house is to make the executive and legislature legally separate, as the makers of the 1688 Glorious Revolution in England intended to do, and the makers of the US constitution did. Both the Senate and House of Representatives in the US have considerable powers over the executive, which run even to the power to share equally in the budget-making process.

The second major change would be to follow all other modern democracies and codify the rules of the game. This would mean that we would have to rid our politics of the two great lies that obscure executive dominance in Britain – of rule in the name either of the Crown or Parliament – and embracing the principle of rule in the name of the people. A written constitution would at last bring the executive under the rule of law in a meaningful way, since it would set out what government may lawfully do and what it may not do, and it would set constitutional rules of behaviour that Parliament could not alter by a simple partisan majority.

Real benefits would follow. Britain would for the first time give positive rights to its citizens that government could not override at will. Second, the position of local – and hopefully – regional, Scottish and Welsh government in Great Britain would be constitutionally defined. This kind of pluralist power-sharing between the centre, regions and localities is common throughout the western world. With it go various ways of deepening democracy – like town meetings, citizens’ initiatives (which allow local people to put forward their own proposals) and local referendums. In Denmark, local people and users often elect bodies that provide services like schools and old people’s homes. In some German towns, representative groups of people are brought together to make local planning decisions.

The end of the cold war has not only liberated most of the former Soviet bloc, it has liberated the west too. For good and ill, the west’s democratic regimes now have to justify themselves by their relevance to their people’s aspirations, and not just by comparison with the iniquities of the Soviet alternative.

All western regimes need to improve their democratic practice. In doing so, my bet is that they will become better equipped to deal with their current economic and social problems. Sober analysis of Britain’s progress since 1215 suggests that we have further to travel than most contemporary democracies.

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