The most difficult controversies are those in which both sides have a point. Two well known historic examples come to mind.
The English Civil War was contended on multiple controversies, but a significant dividing line lay between those concerned to resist the most extreme forms of puritanism and those opposing the development of an absolutist monarchy. Statistically, that conflict inflicted the most carnage on the British population – military and civilian – of any war in history, and from it there slowly emerged classic British compromises. We learned that good process managed with integrity reduces conflict.
This is especially important when bitterness and intensity within a conflict are fuelled by deep commitment to firmly-held principles on both sides.
The American Civil War was similarly contended by men of principle; those asserting the promises within the foundational documents addressed to “all men”, including slaves, were opposed by those who defined the dispute in different but equally noble terms. Some conceded that slavery must end, but they joined with those of whom they disapproved because they nevertheless asserted the right of individual States to make their own laws relating to it. The plain words of agreed legal documents matter.
The first impetus towards secession had begun in South Carolina decades before, over the more prosaic issue of riverbank repair: it is hard to imagine Shiloh, Antietam and Gettysburg flowing from such a dispute. It took the collision of much more visceral principles to plunge that nation into years of internecine strife. It teaches us, however, that bitter disputes may not be on terms of disagreement recognised by all parties. “It’s about THIS,” says one. “No, it’s about THAT,” cries the other.
The controversies of the past week over Brexit suggest that we may be in times of comparable tension. It is not now simply about the merits or demerits of Brexit; it has escalated into a dimension of constitutional importance. Can one side adjust the rules and procedures just because it lost?
The haranguing of Anna Soubry outside of Parliament was boorish and to be deprecated, yet it was not quite John Brown’s provocative raid on Harpers Ferry. In both cases, condemnation of such ‘hotheads’ came even from those who supported their fundamental objectives, whilst others muttered, “This is what you get for ignoring the legitimate demands of the people.”
It should be noted that Ms Soubry is no shrinking violet, and can be as boorishly aggressive as any.
Historically, none of this rivals the violence of the 17th-century London Apprentices, or the Paris Mob, both of whom we have to thank for protecting and advancing democracy in their own disorderly way.
Matters were scarcely more elevated inside the Houses of Parliament. Speaker John Bercow decided to create new precedent in the procedures of the House against all expectation of its Members and against the advice of his Clerks, who are the experts and guardians of non-partisan good process.
Speaker Bercow saw himself as boldly righting a wrong. The Government has been accused of either incompetence or malign intent in limiting debate, and there was legitimate criticism that they were reluctant to facilitate the calling of the Executive to account. This may well be problematic and in need of resolution, yet what was done, and how it was done, has scarcely contributed to the growth of respect and good disagreement as urged by the Archbishop of Canterbury in the House of Lords in the Brexit debate there.
It was evidently the settled practice for a procedural motion of the House, of the character under debate, to be un-amendable. Such was the strength of the precedent that nobody had previously thought to challenge it. Had the possibility of amendment been made available, one can imagine a plethora forthcoming from a variety of quarters, all with claims to be worthy of debate. If the Speaker truly sought to uphold the rights of backbench MPs to contribute to debate, he might have announced his decision to break with precedent (rightly or wrongly) but at least to have offered a level playing field upon which the issues might be contended.
He did not do so. Only one MP brought the challenge, and that was unexpectedly successful; and only his amendment was in play and accepted. The driver of outrage, though primarily from Brexiteers, was not limited to the impact on the Brexit issue. What was much more important was the fact that the change was manipulated to benefit a cause to which the Speaker had already imprudently declared significant attachment.
Today the Sunday Times reveals that the day before tearing up the long-standing precedent, the Speaker had a private meeting with Dominic Grieve in his chambers. This is really quite shocking, and fully merits the description of what was happening “A very British coup”. The duplicity of the Speaker perhaps ought to come as no surprise. Traditionally, judges refuse to see the advocate for one of the parties to a dispute in their private chambers without the presence of an opponent. Former Attorney General Dominic Grieve QC must know the reason for this.
We have had a lurch of precedent to facilitate a known obstructor of the people’s Brexit, and the tacit acceptance of abuse of the majority voters’ preference. The Speaker has set a precedent for future holders of the Office to act in a similarly innovative, unannounced and partisan fashion. Had he avoided public bias and private plotting, and had he kept his personal view on the subject a little quieter, one might have been more forgiving. A wiser Speaker might make a controversial decision and escape the accusation of bias. Personal restraint in the expression of the referee’s personal views is the right approach for the Office, yet that is plainly beyond him. Worse, he has needed to insulate his position and has profited by such bias, and it has emboldened him to become complicit in a conspiracy to deny the people their choice. Without his active involvement, Dominic Grieve’s plot to derail Brexit fails.
We cannot ignore that his known bias has bought him support in the face of serious findings against him – of bullying and harassment, which were set out in a report by Dame Laura Cox. There is some suspicion that his partisanship has been fortified by a Faustian pact: in return for listing towards Remain, he has bought solid support with which to weather that storm and, furthermore, allowed him to stay in post beyond the limited time he had initially pledged to serve. Former Speaker Betty Boothroyd is reported to be critical of his reneging on a promise to follow the established convention and resign mid Parliamentary term to enable his successor to have two years to settle in before the next election.
In both the Speaker and his Remain supporters we are seeing a cavalier attitude to historical conventions, and the important principles which underpin them; conventions which have evolved for our benefit over centuries. One can always argue for getting one’s own way in the heat of an individual controversy. It takes understanding and maturity to rein in one’s personal loyalties and follow traditions that have been forged and tempered by centuries of wisdom. Speaker Bercow eschewed the traditional Speaker’s attire, preferring a garb of his own choosing. Strange as it may seem, that may have been more significant than we thought. The daily donning of the robes of an ancient office reminds one that one is not there on the strength of one’s own merits, but a successor to a deep cultural tradition of inestimable value. Our forebears shed blood for Speaker Bercow’s privilege to serve the House by protecting its rules. In more recent times, our fathers and grandfathers died to protect the vote in this country, and moreover to bestow it on Europe whose current leaders show little respect for the little people when they express themselves as alienated from the Brussels establishment. The new Versailles?
When Louis XIV exhausted the people’s loyalty and patience, as Charles I did before in England, such a cavalier contempt for the ordinary people ended badly for the elite rulers, including the Church. When slave owners argued that the foundational documents of the United States did not mean what they said in describing the rights and importance of each individual, a bloody civil war corrected them. Parliamentarians defer to the Speaker because they respect the traditional impartiality of the office. Governments defeated in elections stand aside peacefully when the voters cast their judgment. Listeners historically trusted the BBC to give equal airtime to both sides of controversies. These important principles are now under stress, and for what?
Riding out the economic inconveniences during the transition to leaving the EU is trivial compared to the task of restoring confidence in democracy and the great institutions of state should the political class is seen to delay, frustrate or overturn a plainly expressed answer to a binary question. If the Remainers in Parliament had wanted a multiple-choice answer, they should have debated the nuances and instructed the Electoral Commission to test and frame the question accordingly. They didn’t: we are where we are.
Yesterday the BBC prominently reported: ‘Blocking Brexit could cause far-right surge‘. This is absurd. Those who respond to any Brexit betrayal will primarily be the heirs of John Hampden, Joseph Priestly, Benjamin Franklin
and Tom Payne. Democrats all, with a healthy respect for ordinary people and a distrust of our self-appointed betters.
All functional constitutions – written or unwritten – are compacts between peoples. Nothing is more fundamental than the principle that when a promise is made plainly, repeatedly, unanimously and unambiguously, and the people engage wholeheartedly on that declared basis, it must be delivered. David Cameron made that promise in the plainest of terms: “If we vote to leave, then we will leave,” he said. “There will not be another renegotiation and another referendum,” he added, hammering home the point of finality. Parliament endorsed that promise in legislation. Both Labour and the Conservative parties pledged to implement it in their 2017 General Election manifestos. If the multiple promises to leave are broken and the people respond to that bad faith and breach of trust, we must be unequivocally clear where the responsibility would lie.