It is largely uncontroversial that healthy democracies require checks and balances upon power. As James Madison famously put it: “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.” But the Madison quote here also points us to another important element: “A dependence on the people.”
Within the EU, the UK government has faced, for decades, significant external constraints upon its scope for misrule. Indeed, the great paradox of the EU is that, although it has always been the European democrat’s club, joined very quickly by any European country becoming a democracy (19 of the EU’s 28 member states joined within 17 years of democratic transition), a central function of the European Union has always been understood as delivering policies that domestic political systems would be unable to deliver for themselves. Trade barriers were removed, competition was introduced, subsidies for businesses were reduced, regulations were liberalised via the EU in ways that would never have been voted for had they been proposed domestically.
In recent decades, the EU has added other checks and balances. Excessive deficits or divergent inflation rates were (at least notionally) limited by the Maastricht Treaty (even for non-euro members, but now especially for them). The Charter of Fundamental Rights guarantees Dignity, Freedoms, Equality, Solidarity, Citizens’ Rights, and Justice. The EU does not allow members to join without first joining the Council of Europe, which in turn requires members to maintain good standing in respect of democracy and human rights and to be subject to the scrutiny of the European Court of Human Rights.
This structure has served as a significant element of the checks and balances constraining the UK government for some time. In the interim, much of the UK’s traditional domestic system of checks and balances (which was already of questionable efficacy even before we joined the EU) has withered. The Crown, the House of Lords, adherence to Magna Carta, the principle that that which is not forbidden is allowed, the principle of non-retrospective law-making, the principal that the burden of proof lies upon the state before seizing property or jailing citizens — these and other checks and balances in the traditional Whiggish constitution are at best atrophied and in some cases entirely broken.
One of the merits of Brexit should be that it forces us to repair our constitution — hopefully upon classical Whiggish lines, albeit doubtless in modernised form. But there was always a legitimate concern about how we got through the interim period when a government with a majority in the House of Commons would face few, if any, significant constraints upon its freedom of action, and when it would have the benefit of very wide-ranging powers of property confiscation (through a combination of anti-drugs, anti-terrorism and anti-tax-avoidance rules), personal detention (anti-terrorism and anti-discrimination rules) and regulatory imposition through secondary powers (with traditional already-extensive powers supplemented by so-called “Henry VIII” clauses).
The answer was supposed to be the long experience and common sense of the British electorate. Whereas other countries had elected more or less extreme authoritarians and collectivists of left or right-wing persuasions, the UK had not faced such issues in its entire 300 year history. For example, we had never even needed to ban communists, as they were banned elsewhere. Here they were simply figures of fun. No-one could imagine someone who, say, declared any of Lenin, Trotsky, Marx, Mao, Stalin, Mussolini, Pétain, Franco, Pinochet, Marcos, or Chavez as his main political inspirations reaching the front bench of one of our main opposition parties, let alone becoming a senior figure in government.
Now one should not be complacent, and perhaps that would change if we left the EU without checks and balances in place for some decades. But there would be time. The common sense of the electorate would buy that time for us.
That view was wrong. The British electorate is indeed prepared to elect into government a party led by an overt far-left leader, who talks openly of requisitioning private property and runs on a platform of requiring all privately owned businesses to be redirected into social objectives, who openly takes as his top advisors senior members of the Communist Party and overt Stalinists, who appoints as his senior shadow ministers overt Marxist-socialists, and whom everyone understands to intend, if he held power for long enough, to implement a Bennite programme replacing traditional UK private property and democracy with collectivist class-based models.
If the UK constitution still had mechanisms to check the power of such a government, we might at least hope for enough delay to test whether it was indeed the settled will of the voters that we transform our economic and political model on Bennite (or perhaps, in due course, Marxist-socialist) lines. But at present such checks are largely absent.
That suggests that, whilst there is yet time, we should seriously consider to what extent we can reintroduce traditional restrictions. For example, how much of its current powers to seize property to tackle drug-dealing, terrorism and tax avoidance can the government surrender?
Note that I am not suggesting that we should introduce checks and balances that we ought not, anyway, to have sought to introduce post-Brexit. We needed them. I’m merely suggesting that that component of the Brexit reforms package now needs to be higher up the priority list, for we can no longer rely complacently upon obsolete homilies about the good sense of British voters to protect us.
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