Here and there – Working the Constitution


Walter Bagehot (pronounced as in Paget) is fondly remembered at The Economist.  He edited that journal for some time and in 1867 – just before Disraeli, a Tory PM, enfranchised the working class – he published a book called The English Constitution.  It had great impact, and it still does in Conservative circles.  The author claimed to have found the ‘secret’, between the ‘efficient’ working of the constitution and the ‘dignified’ part.  We might be more wary of such journalistic flare nowadays, especially when it rests on labels, but there is something to the distinction.

The book is now hopelessly passed its historical shelf time.  After about four pages, you are told that if you are not convinced that the lower classes are ‘narrow-mined, unintelligent, incurious’ then ‘you should go into their kitchens’ and ‘try what seems .the most obvious, most certain, most palpable in intellectual matters, upon the housemaid and the footman’ and you will find what he says seems ‘unintelligible, confused and erroneous.’

Dear, dear, dear.  Class then was caste – at the bottom as well as the top.  The author celebrates the distinct constitutional role of the aristocracy, while he maintained that in England they were no separate caste – at least as a matter of law.  And as Richard Crossman pointed out in the Introduction, Bagehot had that centuries old English ruling class fear of educating the lower orders in case that caused them to rock the boat.  They shared this fear with the Church.  Bagehot said that ‘what I conceive to be about the most essential mental quality for a free people, whose liberty is to be progressive, permanent, and on a large scale: it is much stupidity.’  Or, try this: ‘a political combination of the lower classes, as such and for their own objects, is an evil of the first magnitude.’  What kind of political genius, then, was Disraeli?

But the book does offer comment on the malaise of our times.

Bagehot said that the ‘the efficient secret of the English Constitution may be described as the close union, the nearly complete fusion, of the executive and legislative power.’  This of course is banned in the U S.  They rest on a doctrinaire embrace of theory that has never taken hold in the mother country.  Like the French, the Americans – fresh from a brawl with a monarch they neither understood, not trusted – wanted an absolute line of demarcation between legislature and the executive.  That has never been the case in England or Australia.

Crossman thought (in 1963) that the ‘theory of checks and balances….is now a fiction’.  Well, it doesn’t look too fictitious in America where putting a spoke in the wheel has become the main game.  Accordingly, Crossman thought that once ‘elected by the Commons, the Prime Minister exerts powers greater than those of any American President.’  That’s a fair topic for a pub debate.

But there has to be a workable parliament.  Critically for our purposes, Bagehot saw two conditions as ‘essential to the bare possibility of parliamentary government’ – the independence of the individual Member and the moderation of the House of Commons.’  He thought that both would be destroyed by strengthening the party machine outside parliament.

Well, that’s what happened.  The centre of power shifted from the parliament to the party machine outside it.  The individual member lost his independence and the legislature lost its moderation.  And its sense.  Australia has just spent $120 million on a plebiscite that most people didn’t want, on an issue that most regarded as decided, because one faction of a party persuaded the whole party – one nominally committed to the cause of liberty – to ban its members from voting in parliament on an issue as a matter of conscience.  It’s hard to think of a more complete, or revolting, vindication of the prophecy of Bagehot.

What holds together the effective government in England, the Cabinet, is a ‘combination of party loyalty, collective responsibility and secrecy.’  But, again, you need to have a decent parliament, one not composed of ‘warm partisans.’  Now all we see are hot partisans.  In the US, a Republican may lose endorsement from the Party for not being partisan enough – or be attacked by the President for being the wrong kind of Partisan.  The very word ‘moderation’ is suspect, if not dirty.

The powers of Cabinet have been eroded by Whitehall, but it is the dominance of the party that has reordered all that Bagehot described.  Crossman quotes a French observer: ‘Parliament and Government are like two machines driven by the same motor – the Party.  The regime is not so very different in this respect from the single party system.  Executive and legislature, Government and Parliament are constitutional facades: in reality the party alone exercises power.’

These things are matters of degree, but that’s how at least some saw government in England one hundred years after Bagehot wrote his book.  As a result, Crossman says that resignations on principle and dismissals for incompetence have become rare.  ‘Party loyalty has become the prime political virtue required of an MP, and the test of that loyalty is his willingness to support the official leadership when he knows it to be wrong….It is what is said and done in the secrecy of the party meeting which is now really important – though the public can only hear about it through leaks to the press.’

What then was the role of opposition?  In Crossman’s time they played safe and went in for shadow-boxing.  Why?  The alternative was to obstruct over time and so halt the process of government. ‘But by taking opposition to this level, an Opposition lays itself open to the charge of extremism and irresponsibility, and may well lose the support of that mass of floating voters which it must hope to win in order to turn out the government.’

Well, all that, too, has come to pass.  Immoderation is the order of the day for opposition.  The Government determines its policies in secret, and the Opposition does its best to jam the system.  The spirit of the game has just gone.

Now, this may seem silly – but none of that looks very ‘democratic.’  (As an aside, Crossman says that Britain’s decision to explode an atom bomb never reached Cabinet, let alone Parliament – before or after the event.)  Many people feel estranged by and from the process.  They don’t trust the people involved.  They don’t like them.

We are coming to grips with flaws in the two party model – after the public at large has in substance rejected it.  One problem is the fact that we only get to vote for people selected by the party.  We have no control over that process, and we are increasingly despondent about its results.

Our constitutional framework has another big problem that was not about in Crossman’s time.  The whole process of government required a professional and dispassionate civil service.  On various fronts that notion has taken massive hits in Australia.  We have seen the rise of political advisers.  They are neither professional nor dispassionate.  They tend to be people on the make and people who are not easy for others to fall in love with – particularly when, after they flop, they slink off unemployably to share their chagrin on Sky News.  It is both odd and sad that this erosion of this part of our constitutional dispensation has gone largely unnoticed.

So, what Bagehot and Crossman said does bear on our political ill health.  We are witnessing a collapse of decency and sense in public life across the West.  The mot de jour is ‘polarised.’  Moderation is out.  The centre cannot hold.  We look with Yeats upon those who lack all conviction and at those who are full of passionate intensity.  In England, a movement promoted to return something called ‘sovereignty’ to the Parliament is at risk of surrendering just that sovereignty to something called the ‘people.’  While the people of the U S and the U K are losing faith in their governments, the standing of those nations among others has collapsed.

The collapse of faith and trust was described by Thucydides in Greece thousands of years ago.

To fit in with the change of events, words, too, had to change their usual meanings.  What used to be described as a thoughtless act of aggression was now regarded as the courage one would expect to find in a party member; to think of the future and wait was merely one way of saying that you were a coward; any idea of moderation was just an attempt to disguise one’s unmanly character; an ability to understand a question from all sides meant that one was totally unfitted for action.  Fanatical enthusiasm was the mark of a real man, and to plot against an enemy behind his back was perfectly legitimate self-defence.  Anyone who held violent opinions could always be trusted, and anyone who objected to them became a suspect.  To plot successfully was a sign of intelligence, but it was still cleverer to see that a plot was hatching.  If one attempted to provide against having to do either, one was disrupting the unity of the party and acting out of the fear of the opposition.  In short, it was equally praiseworthy to get one’s blow in first against someone who was going to do wrong, and to denounce someone who had no intention of doing any wrong at all.  Family relations were a weaker tie than party membership….Revenge was more important than self-preservation…..Indeed, it is true that in these acts of revenge on others men take it upon themselves to begin the process of repealing those general laws of humanity which are there to give a hope of salvation to all those who are in distress, instead of leaving those laws in existence, remembering that there may come a time when they, too, will be in danger and need protection.

The fact that we have seen it all before is not much comfort.  For me, working with the law, and in particular the common law, comes down to a state of mind.  I know that answer will disappoint or infuriate the theorist or scientist – or, for that matter, the fanatic – but it’s the best I can do.  I think the same goes for government.  The problem is that that’s where I think we have lost it.

One thought on “Here and there – Working the Constitution

  1. Barzun wrote an interesting article on Bagehot “Bagehot as Historian” in 1968.
    He may have revised it had he lived to 2017.
    A free government for Bagehot,”lives by discussion,a free press has its life in argument and dissertation “
    He concludes that that must involve privilege as power should be with the instructed rather than the uninstructed .
    Now privilege doesn’t involve instruction , the instructed ie educated are prime targets for the privileged .
    Of course as an argument against Bagehot that is anachronistic.

    Sent from my iPad

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