Patricia Lança's Web Site FOOLS |
PARLIAMENT OF FOOLS? By Patricia Lança |
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| Institutions are like fortresses. They must be wll designed and properly manned . Karl Poppwe |
THE PARLIAMENTARY EXPENSES scandal that broke in May 2009 has revealed in all its tawdriness what had long
been suspected: that the main institution supposed to guarantee British democracy is far from being a fortress. Since
the story first hit the headlines there has been no shortage of comment. Perhaps never before in the last two
centuries has public scepticism about the moral character of both rulers and legislators been so pronounced and so
openly expressed or has Parliament been held in so low esteem. Given the former prestige of Westminster and its
institutions, none of this can be good for the cause of freedom in Britain or anywhere in the world.
And yet amid the explosion of outrage and righteous indignation, occasional hilarity and the odd proposal for reform,
almost no reference has been made to either of the two greatest political thinkers of the last century. Were Karl
Popper and Friedrich Von Hayek alive today they would certainly have something to say. However their works
themselves are still alive and as apposite as when they were first written. Nevertheless there are reasons for
ignoring Popper and Hayek. While current comment is centred chiefly on the more superficial aspects of the present
constitutional malaise both men, especially Hayek, were concerned with the need for far-reaching constitutional reform
in its most basic sense. The electoral system and the supposed virtues of proportional representation; the character of
candidates for each House; methods of overseeing members’ behaviour are really only epiphenomena of a constitutional
crisis that has been long in the making. The architecture of government and the way its personnel are selected have long
been showing that they contain within themselves the seeds of degeneration. Fifty years ago Friedrich Von Hayek in The
Constitution of Liberty analysed at some length how what is supposed to be a democratic system and the guarantor of
citizens’ liberties has been gradually decaying and turning into its opposite: the main means of increasingly restricting
freedom.
The point has now arrived where the Prime Minister, to correct an incorrigible situation, has taken steps which strike at
the very heart of what is supposed to be constitutional doctrine. In setting up a committee, external to and
independent of Parliament, a further blow has been struck at the historic principle of the sovereignty of Parliament
which is supposed to mean the sovereignty of the people. If he really believed in this time-honoured myth Gordon Brown
really had only one legitimate recourse: the dissolution of a corrupt Parliament and a general election. However, to
admit openly that ‘Honourable’ Members were insufficiently worthy to continue to legislate for a further year would
have been too grave an admission and one too near his own bone to bear the scrutiny of an election campaign. And in this
decision, whatever it might have cost them, the overwhelming majority of his own MPs supported him. Better outside
examiners appointed by the PM, they concluded, than an appeal to the electorate. At least postponement had the
advantage of an extra year's emoluments for these gentry and the ever-present hope of short public memory coming into
play. Hence a general election has been postponed to the legal limit: the early summer of this year.
Hayek considers, and we can all see for ourselves, that there is in practice no effective separation of powers and no
genuine system of checks and balances, while real power lies more and more in the hands of an unfettered ever-
expanding bureaucracy, whose national variety has now been augmented by even more powerful and unaccountable
functionaries of the European Union.
As far as that other myth, parliamentary sovereignty, is concerned, Hayek also demonstrates that an “omnipotent”
democratic government cannot by its nature exercise self-restraint. To keep the majority on which its power depends,
it must satisfy the demands of innumerable special interests. It becomes what Hayek calls a “playball” of these
interests, in effect “a bargaining democracy”.
Given the involvement of members of all three parties including their leaders, in the expenses scandal, it is hardly likely
that any of these will be interested in giving the question of MPs' expenses a significant place in their electoral
progammes. Whether any of them will be concerned with the much larger question of constitutional reform itself is even
more doubtful. And yet discussion of the latter is far more fundamental than the importance of the expenses scandal
and its so-called solution. After all, an extra-parliamentary enquiry into the latter is scarcely more serious a blow
against parliamentary sovereignty and the ideal of separation of powers than what is already in place: the excessive use
of statutory instruments, the proliferation of QUANGOS or, worst of all, the surrender of national sovereignty to
Brussels without the consent of the electorate.
In the latter part of his life Friedrich Von Hayek, economist, political thinker and Nobel prize-winner, devoted two
large works to consideration of all the matters raised by the present constitutional crisis. Both The Constitution of
Liberty,1960,(CL) and its sequel Law, Legislation and Liberty,1979 (LLL) were written with the aim of examining the
possibilities of ruling a modern State while simultaneously promoting efficiency and safeguarding freedom. Hayek, like his
friend and fellow Austrian Karl Popper, had personal experience of the processes that lead to the triumph of
totalitarianism but although their ideas overlap, their objectives were different. Popper, in his The Open Society and
Its Enemies gives us what is mainly a historical analysis of the origins of totalitarianism, Hayek’s work is more
concerned with the present state of democracy, how to halt its decay and safeguard its future.
Those acquainted with his work know that, as a political philosopher he was an enemy of constructivist rationalism based
in Cartesian a priori reasoning. He believed in evolutionary epistemology, namely the idea that, as with biological
species, cultural habits, practices and beliefs survive according to the extent to which they promote the survival of the
society concerned. Habits and practices not conducive to survival tend to disappear while those that turn out to be
favorable usually tend to persist and become part of tradition although most of traditions’ followers have no idea of how,
these arose in the first place. Nobody designed most of our social practices and institutions ; nobody designed the
Common Law just as nobody designed language. Hence the importance of tradition and the need to analyse social
practices and their persistence very carefully before tampering with of them.
This why Hayek’s critics often accuse him of contradicting himself in setting out the changes he thought necessary in
government while stressing the huge importance of tradition. This is probably one of the reasons for ignoring the lessons
of the two works mentioned above (CL and LLL). However Hayek himself was well aware of the apparent contradiction
and makes it clear throughout his works. Indeed he stresses that it is his ardent belief in reform that makes him a
liberal rather than a conservative. He is an adept of reform but only where this is needed: what he does stress is the
essential prerequisite of careful analysis and understanding of social practices and institutions before attempting to
change them.
And this is what he does in both CL and LLL. Only after a rigorous examination of the meaning and implication of an
array of political and social concepts and practices does he advance his proposals. A little thought suggests that analysis
is what is now needed if present dilemmas are to be resolved. So we must in the first place consider whether some of
the principles referred to in the preceding paragraphs actually exist or are among those hallowed entities known as legal
fictions, fit only for cursory study by Law students or discussion by constitutionalists. Among these fictions we must
mention in the first place the idea of the Separation of Powers between the three branches of government: Legislature,
Executive and Judiciary. Originating in French misunderstanding of British constitutional practice, it is generally
recognized today that English constitutional law had never really adopted the idea of separation of powers, while in the
USA the Founding Fathers did make this attempt as have innumerable constitution-makers ever since— but with varying
degrees of success. Executive and legislative organs have tended to become inextricably confused everywhere while the
judiciary has increasingly tended to go beyond its remit of interpreting and applying the law to producing judge-made law
according to their own ideological bent. What follows is a necessarily brief summary of some of Hayek’s suggestions.
*
He believed firmly in the need for separating the executive, legislative, and judicial functions of government and much of
both CL and LLL explain in detail why. He recommends a remodeling of the architecture of government and makes many
interesting suggestions on how this architecture should be manned. There needs to be, he suggests, two chambers, one
for actually legislating (or governmental assembly) and the other for overseeing this process and ensuring that the
principles of the rule of law and respect for rules of just conduct are strictly followed. The executive should be a
committee emanating from the governmental assembly and so subject to the same invigilating as the chamber from which
it originated. Not so very different from what are sometimes supposed to be the traditional functions of the Commons
and the Lords respectively, had these not degenerated into their present confusion. However, the devil, or in this case,
the angel, is in the detail.
Hayek believes that a five year Parliament is nothing like long enough for worthwhile legislative projects to be examined
and executed. Moreover, five-year terms for both legislators and invigilators carry with them the ever-present risk of
electoral considerations dominating the members’ spirits. Many measures are by their nature long-term. Educational
reforms require more than half a life-time to be carried through. Long-term investments such as those in transport,
energy, or housing also require lengthy periods. As does the area of defense, given the high degree of technology which
are nowadays involved in this area. This is the basic reason why members of parliament in present circumstances are
rarely motivated to give their attention to projects whose outcomes lie in the distant future and thus fail to provide
possibilities of immediate electoral advantage.
Hayek therefore proposes that Parliaments should have a duration of fifteen years. But to avoid the problem of
inevitable senescence producing an undesirable distance between government and governed, elections should be staggered
(as already occurs for shorter periods in the United States and some municipal elections in the UK). So while Hayek
suggests that members be elected for a fifteen year term, he adds that a third of places in both chambers be
vacated every five years and replacements chosen thus ensuring a healthy turnover and the injection of new blood at
regular intervals. To raise the prestige of Parliament and motivate candidates to stand for office, the practice should
be developed of sending retirees at the end of their fifteen years to positions in the judiciary as lay judges or other
offices where their experience would be valued.
Hayek is critical of the way in which politics has become professionalized in the worst sense. Everybody is aware today
of the way in which many members of the House of Commons are people who have never done anything else in their lives
and are unfamiliar with practical affairs. We all know how some students, long before they even graduate and with an
eye on a parliamentary career, set out to make their names in student politics and then proceed to their chosen party’s
head office as an apprenticeship for higher things at the next election. This is how we get legislatures everywhere
where there are people who have little knowledge of the real world but are skilled in the arts of intrigue and all manner
of political chicanery. So, unlike Britain’s Liberal Democrats and others who would lower the voting age to sixteen,
Hayek would raise age limits, and nobody would be allowed to run for office until the age of 45, by which time he or she
would have had the possibility of displaying some proof of achievement in the world of industry, business, the professions
or the arts. He would restrict candidates for office to an age range of 45 to 60 years and they would be chosen by
their peers so the electorate would have to have reached 45 years of age. (Fanciful as such age limits might appear in
present conditions, it should not be forgotten that demographic projections indicate that not very far in the future a
third of the population will be over 60, healthier than today and with a greater expectation of active life ahead of
them.)
But Hayek is no despiser of youth and recommends the formation of assemblies throughout the land for young people of
both sexes whose function would be regularly to debate politics and all aspects of government, thus stimulating at local
level greater interest in political life generally.
To ensure effective separation of powers and the proper functioning of the institutions a Constitutional Court would be
necessary and this, Hayek suggests might well consist of judges and retired members of either house. Such a court
would be the highest arbiter between the two houses and the ultimate guardian of the constitution.
Much of Hayek’s argument and his many examples (occupying 570 pages in LLL) have necessarily been omitted here, but
for all interested in the defense of freedom and the factors fatally undermining it, a consultation of his work is highly
recommended if a fruitful debate is to be established.
First published in the Spring 2009 number of The Salisbury Review, London
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