Liberty Matters

Bagehot’s Defense of the English Constitution

Adam MacLeod and I come from very different intellectual traditions: he is a lawyer, I am an historian; he is a citizen of the United States, I of the United Kingdom. We have a common text in Bagehot, but we respond very differently to that text. He suggests that at the moment we face a similar political situation, but in his view our institutions (both British and American) have failed, while my present, tentative view is that British institutions have performed remarkably well at a time of great difficulty, and American institutions have been found severely wanting.
I want to address in turn three issues raised by MacLeod: constitutionalism and the rule of law; Bagehot's anthropology; and the significance of Brexit.
We need to begin by clarifying the term "constitution." It is important to see that Britain has never had a constitution in two important senses: 1) we have never had a written constitution and 2) no feature of our political system is entrenched in such a way that it cannot be changed by an Act of Parliament--indeed, if the change was proposed in an election manifesto of the governing party, by a simple majority in the House of Commons. Thus it is a fundamental feature of the British constitution that it is constantly subject to change, and there are no limits on the changes possible. Bagehot understood this very well, and knew that he was writing during a period of profound constitutional change as a consequence of the expansion of the franchise. He also understood that underlying this constitutional change was the enormous economic transformation represented by the industrial revolution.
The British constitution, such as it is, is founded on a single principle: the sovereignty of Parliament. Thus the Supreme Court recently ruled that, under existing law (as the Court rather surprisingly interpreted it), the government cannot prorogue Parliament in order to avoid parliamentary scrutiny. But there is no doubt that a simple Act of Parliament could give the government this power, or could indeed abolish the Supreme Court (which was only established in 2009). By Act of Parliament the United Kingdom became part of the European Union and accepted the overriding authority of European law and European courts; but by simple Act of Parliament it can (and now will) withdraw itself from European law and European courts. (The matter is more complicated in international law, as there are treaties involved, but not in domestic law.) The only limits on the powers of Parliament are self-imposed and revocable.
Because under the British system there are no fixed limits on government power, and because power is consolidated in the hands of whoever is able to command a majority in the House of Commons, the system relies on informal constraints: traditions, public opinion, deference, expert authority, bureaucratic inertia, and so on. One of the basic reasons why the British have never felt at home in the European Union is that the European Union aspires to be a law-based system, while in Britain laws are fundamentally instruments for the execution of the will of Parliament, so that in Britain politics, not the law, is supreme.
MacLeod seems to think there was a time when people (in both Britain and the US) believed in the rule of law, and our institutions are now failing us because we no longer have this belief. As an historian I find this a most peculiar claim. The right to counsel in criminal cases was only firmly established in England in 1836; the adversary system of trial only developed over the century from 1680 to 1780. The right of appeal in criminal cases on the basis of new evidence was not established until 1907. Thus what we think of as fundamental features of the law are in fact often of comparatively modern invention. Since the Police and Criminal Evidence Act of 1984 the right to silence has been effectively eliminated. Since 2003 double jeopardy has been permitted in certain cases. What were only recently held to be issues of principle are now waived aside as inefficient and impractical. Moreover, if we step back and look at a larger picture, there continue to be fundamental differences between adversarial (or common law) and inquisitorial (or Roman law) legal systems.
Thus for a British historian "the rule of law" appears not as a fixed set of beliefs but (like the British constitution) a system in constant flux. The rule of law means quite different things for different nations, and in different periods. Lawyers have a professional commitment to turning the law into a rational, coherent system, the embodiment of eternal truths; historians have an opposing commitment to treating the rule of law as a set of local practices and arbitrary conventions.
I turn now to Bagehot. MacLeod wants to lambaste Bagehot for his views on human nature, and there's no doubt that these, particularly as expressed in Physics and Politics (1872) are reprehensible. But it is crucial to see Bagehot's book as a product of its time: it was first published in 1867, the year in which the franchise was extended to the urban male poor, and revised in 1872. It was thus written at an historical turning point. The Reform Act of 1867 was followed by two crucial pieces of legislation, the Education Act of 1870, and the Ballot Act of 1872: the first was foreseen in Bagehot's text and the second was not. The Education Act introduced universal elementary education: a response, in part, to the fact that the Reform Act had enfranchised many people who were illiterate. The Ballot Act was designed to break the power exercised by employers and landlords, particularly in the countryside, over their dependents.
Bagehot was acutely aware of the difficulty of having an extended franchise with voters who were uneducated and whose votes (particularly in rural districts) could be suborned by their social superiors. He was also, quite naturally, worried about the possibility of class warfare: apart from Chartism in England, he surely also had in mind the revolutions of 1848 on the Continent. Bear in mind, the Communist Manifesto was first published in 1848; the first volume of Das Kapital in 1867. Bagehot was writing at a time when across Europe ancient constitutions had been destroyed by revolution, while in Britain the semblance of the ancient order survived. It is not at all surprising that he wanted to stress the role of deference and tradition in making this survival and adaptation possible.
This brings us to the causes of our present discontents. Here I partially agree with MacLeod. Recent political developments in the USA, the UK, and across Europe have demonstrated that our political, educational, and media elites have lost touch with the concerns and priorities of a large section (in some contexts a majority) of the population. This has brought about an ongoing political and indeed constitutional crisis, and this, it seems clear, results from the long-running economic revolution which we loosely refer to as "globalisation"
Writing as I do, two weeks after what may prove to be the most important British election since 1945, what strikes me is not the failure of the British political system, but its success. Despite the massive opposition of the elites to Brexit, we are leaving the European Union. An extraordinary upheaval has seen vast swathes of the country, particularly in the Midlands and North, switch from voting for Labour to the Conservatives. A constitutional crisis, where the government could not command a majority in the Commons for its central policy, that of leaving the EU, and where the rules of political engagement were in flux as a result of the unpredictable and unconventional interventions of the Speaker and the Supreme Court, has been resolved by the restoration of what Bagehot called cabinet government: a united governing political party with a majority in the Commons and undisputed control over the executive. And, although Johnson's opponents seek to characterise him as far-right, all this has been achieved without the emergence of right-wing racism and crypto-fascism of the sort which is common elsewhere in Europe. (I leave to one side the emergence of an appalling left-wing racism in the form of anti-semitism; fortunately this clearly weakened rather than strengthened support for Labour). Indeed, although political divisions are bitter, there are signs of a new consensus which can be seen in the adoption by the Conservative party of policies which had been advocated by Labour -- increased expenditure on the NHS, government intervention to spread wealth outside the big cities, and so forth. The apparently risible Labour claim to have won the argument while losing the election points to the important truth that British politics is not becoming increasingly polarised, but rather seems to be settling around a new consensus.
We are, as Bagehot was, in the midst of a period of rapid and unpredictable change. He was seeking to reassure his readers that such change was manageable and need not lead to crisis, conflict, and revolution; and his reassurance turned out to be well-founded. Our political institutions are now once again being tested to breaking point. We have to cope with a conflict between "the people" and "the elites." We need to ask ourselves how our elites have so lost touch with life outside the big cities, and why our elite educational institutions (which play such an important role in shaping the elite world view) have become increasingly homogenized in the range of opinions they foster and increasingly conformist in the values they inculcate.
But if we look at the crisis as it is unfolding in the USA and the UK it is surely apparent that cabinet government has enormous advantages over the separation of powers. Since the vote to leave the EU in 2016 we have had three Prime Ministers without any need for impeachment. We have had radical shifts in policy because (despite the Fixed-Term Parliaments Act of 2011) again and again it has been possible to ask the electorate to break the deadlock. And we have seen our two great political parties fundamentally remake themselves by internal revolution, rather than falling back on appeals to their existing base. We have also seen a new version of Shakespeare's story of Prince Hal: Boris Johnson, dismissed as unfit to rule only three years ago because he was more interested in playing cricket with the aristocracy than working out the policies for a new government, is proving himself, to the surprise of many, to be a serious political figure. Johnson has grown into office, while Trump has shrunk the office he holds.
MacLeod says there are no enduring truths to be found in Bagehot. We can surely agree on Bagehot's faults. But we would do well to imitate his attempt to make the best sense we can of a current crisis. We need to recognize that in the long run we need an elite that can command the consent of the electorate. And we need to acknowledge (as I would not have been willing to a few years ago) that the British political system, because it is adaptable and flexible, because it is convention-based but not law-based, has great advantages over the American when it comes to responding to a crisis. Perhaps we have just been lucky in that we have recent experience of its strengths, and not so much of its defects, which would quickly become apparent if liberty was under threat from a domestic majority.
The hope of the framers of the American Constitution was that the United States would be relatively protected from external shocks by the Atlantic Ocean. Globalization means that the Earth has now become a single economic system, and that shocks are therefore now transmitted almost instantly from one side of the globe to the other. Mere slogans (Make America Great Again, "trade wars are easy to win") will not alter that fact. We should not forget that Bagehot was not only a student of politics; he was also the founder of The Economist journal, and the author (in his book Lombard Street, 1873) of the doctrine that in any financial system there must be a lender of last resort. This, at least, is an enduring truth. Since the euro was founded as a currency without a lender of last resort, we can happily claim Bagehot for the side of Brexit.