The shadow of John Wilkes

The Commons did not want John Wilkes amongst them, but the people had a disreputable habit of electing him. In 1769, the Commons expelled Wilkes three times, and he was re-elected. Never since has the House of Commons tried to pick and choose its own members, until recent years.

The ‘recall’ of members is a recently innovation, and it has generally had public support. It is a limited remedy, unlike its equivalents in America: in places with a ‘recall’ system, no elected official can feel safe to get on with the job when any disgruntled group of residents can call for a vote to remove them, and cause all the personal expense of a new, untimely election campaign. No reason need be given over there.  Here, it is applied only where a Member has been convicted of a crime and sentenced to a year or more in prison, or of a false expenses claim, or if he or she has been suspended from sitting for 10 days upon a judgment of the Orwellian-sounding Committee on Standards.

This is a constitutional problem. A crime, judged by due process of law, by rules of evidence and procedure and heard by an impartial judge and jury is cut and dried. It is understandable that a lawmaker should not be a proven lawbreaker in a serious degree. However just breaking an internal rule, made by politicians, judged by politicians, and with a miniscule sanction; that allows the Commons to pick and choose its own members.

John Wilkes may be stirring in his grave.

The recall procedure, it may be objected, is not so simple: after the Speaker certifies that the condition is met, it still needs a petition by 10% of the constituency electorate to trigger a by-election, and the cast-out MP can stand again, as Wilkes did. That is form though, not reality. Any party organisation worth its salt can arrange a 10% petition against their opponent, stopping people in the street with lurid tales if necessary, so the by-election should be considered a foregone conclusion. Then if the recalled MP stands again, he or she is damaged goods, trailing accusations and a proven conviction. The initial trigger then is as good as expelling the MP.

The pettiness of what can topple an MP is astounding, in constitutional terms: a year in prison is fair enough, but misclaiming expenses?  This came from the manufactured scandal current at the time, and should pass away as that enthusiasm has. I have never been in the happy position of having an expense account to  play with, but it begs one to push it to the limit and beyond. Judging right and wrong and convicting by so much as a hair’s breadth should not topple an MP. If it is theft, then let him or her be tried and meet the barrier of one-year of imprisonment, and if the judge will not judge it so harshly, let the accused resume his constituency duties.

Suspension  from sitting should never trigger the procedure. It is to put an MP’s position at the mercy of internal rules and an internally appointed committee of politically opposing members.

When the Recall of MPs Act was passed, it was condemned as a constitutional outrage by some Members, and they showed foresight in this. There is talk of expanding its scope – that would be  real outrage.

The focus now is Rob Roberts, MP for Delyn in Flintshire.  I will not say he is a pleasant man, and in private I will say much worse. John Wilkes too was a most disreputable scoundrel. If one is not willing though to defend those who disgust, one is not willing to defend any principle, as principles are impartial.

Wilkes was a libertine, a member of the Hellfire Club, a slanderer, a writer and publisher of obscenities – and he was hailed in his time as a beacon of liberty: “Wilkes and Liberty!” was a popular cry. Sometimes it is the worst of men who are the best champions for mankind.

See also

Righting the rights

We have been promised a reform of the Human Rights Act for the last eleven years. It has been in Conservative Manifestos – now it is in a conference speech, will it actually be done?

Most interestingly is the timing:  the new Lord Chancellor and Secretary of State for Justice is Dominic Raab, a lawyer who has written two books on the need for reform of the area. Now his text may start to find its way towards the statute book.

There are two particular problem with the Human Rights Act: one in the legal realm and one deeply political.  I will look at the legal one: the deep political danger is for another time.

Each of the rights set out in the Convention européenne des droits de l’homme is one which is respected by British common law, so one would think there should be no issue with any of it. The common question from supporters of the Act is a sensible one: ‘which of those rights would you forego’?

The answer?  Not one; but that is not the problem. The Convention rights are in briefest summary, the right to life; freedom from torture or servitude; liberty and security; fair trials; against retroactive laws; privacy; freedom of conscience and religion; free expression; free association; marriage between a man and a woman; the right to an effective remedy etc.

No Conservative would argue with these. One would argue though with the activist interpretation which has been put on some, going far beyond the words, and some interpretations which plainly disregard the words. A second element is the way that it disfigures the culture of law enforcement.

I will leave it to petty editorials in the Daily Mail to list examples of the Act going wrong. It is meant to defend the noble oppressed struggling for liberty; in a land which has freedom as the default setting, it is a remedy of last resort of the scoundrel. The events editorialised to draw the reader’s outrage may be nothing to do with the words of the convention nor the way it has been interpreted judicially, but the way the police or public servants defer to what it might be – an armed criminal with hostages demanding food as a human right and other such things, and the police complying in fear though there is no need.

However, there are genuinely outrageous judicial decisions, arising from the judges of the Convention’s own court, in Straßburg. Their fault is the decision, since 1978, that the Convention is a ‘living instrument’, not meaning what it actually said as intended in 1950, but meaning whatever the judges want it to mean according to the spirit of the times, or their idea of what the spirit of the times should be.

The Convention so read is a jelly. To call it any form of law is to insult the very concept of law. To set British judges to determine such an insubstantial mass  is an insult to their vocation: European judges may have different standards.

If the Convention is a ‘living instrument’ it is not law, and its administrators are no judges.

There is a long history of discontent with the European Court of Human Rights. In the 1970s and 1980s the Strasbourg court handed out a string of judgments against Britain that seemed political; mainly judgments condemning actions taken against IRA terrorists. (Such judgments could only be made in an ivory tower, not by those who had seen their towns shattered by a bombing campaign, not by who wake in sweat in the early hours waiting for a knock and a gunshot.) More recently the discontent is in more personal matters. Wild judgments are , such as the one of a few years ago demanding that prisoners have an equal vote with honest men, is nowhere in the relevant Protocol to the Convention, but is determined by judicial sleight of hand. Other judgments look to force liberal preconceptions by a ratchet effect.

As improper are the cases that clear permit states to trample on freedom by allowing the action under the heading that it may be “necessary in a democratic society”. That is a phrase that can drive  a coach and four through any right with that proviso. Enactments to silence dissent as ‘hate speech’ are becoming commonplace in Europe. In America such a law would be struck down at once by their Supreme Court, but in Straßburg it is more likely to be lauded as a necessity.

How long the European Court of Human Rights will continue as a liberal stronghold is hard to tell, as more conservative-minded judges are being appointed in Eastern Europe. The norms of Austria, Hungary and Poland are not those of Belgium or France.

If there is a pretence that the Court is a court and that the Convention is to be treated there as law, the political bent of the judges should be irrelevant. It is relevant though, for the Convention is like no law the British tradition could understand.

Reform then on these shores need not tackle the wording of the enumerated rights in the Convention itself as written in 1950, or its Protocols 9to the extent they are accepted. It would nail the jelly to the table, and read the rights as they are written.

In Dominic Raab’s book “The Assault on Liberty“, he makes the case for a ‘British Bill of Rights’ that actually resembles law. The timing of the book is important: it was written when he sat in Opposition, in the Blair period.  It was not a demand for Parliament and Whitehall to be loosened from constraint, but a plea to impose more, better restraint upon the overuse of power.  It was Mr Blair who pushed the Human Rights Act though Parliament and he declared himself thus a champion of liberty, but his ministry saw the greatest abridgment of personal freedom since, well, since the previous Labour government. Mr Raab’s called for liberty; and now he is in charge.

Reform is possible, but the Convention on its own may be impossible to save.  Read straight as it was written is a necessary start: even read straight though the Convention is wobbly: that phrase “necessary in a democratic society” is incapable of definition except politically.

Rights restraining subsidiary legislation can be written in. The tendency since Blair’s time is for freedom to be curtailed and government power ever increased under the fig-leaf of the Act (which is a separate article).  A restraint on delegated power is therefore needed. This may be Mr Raab’s ‘British Bill of Rights’, and it would be enforceable with judicial review.

The fuzzy political boundary is still there though and judges should not be pushed into those areas in which politicians must be made to accept responsibility.  There may be a case therefore to tear the judicial element out. We would not have a British version of the Strasbourg court, but perhaps a quasi-judicial figure as a “Superintendent of Conventional Rights”, able to opine, to report and to chide.

See also

Books

The Liberal Delusion: a retrospective

In the 9 years since publication, The Liberal Delusion by John Marsh is as relevant and insightful as ever. At the memorial service for the author on Saturday I was struck by how much of the character of the man went into his masterful analysis. He was not an author – this was his only completed book – but he was a great thinker and a historian.

In latter years, the stream of neo-liberal thought has taken a weird turn not anticipated in the book, but the author does show where the philosophy went wrong so as to produce these abominations.

I have a lot for which to be grateful to John Marsh. I always found his robust, infectious cheerfulness and enthusiasm a delight; it drew you in and provoked mischievously.  This enthusiasm and his iconoclasm and plain common sense in the face of nonsense, all these come out in his book, and they inspired in part the creation of this blog: while it is based on the philosophy of Thomas Hobbes, I have always been aware that the philosophy of the nature of humanity is in Hobbes indeed, with a debt to Anthony Burgess, but filtered through the clarity with which John Marsh expressed his fundamental concepts.  His central argument is the central argument I have adopted in a number of my posts here.

The malaise of these days is recorded in many a book and for the most part it is little more than a jeremiad, an impotent lamentation. The Liberal Delusion is very different, for while it does recite laments, its concern is finding and extirpating the root of society’s failure, finding it in a failure of modern liberal philosophy: this is the Liberal Delusion.

The book takes aim at a single flaw which is at the root of modern liberalism. From that one error follow conclusions all based on that error. If you make a wrong turn on the road, however boldly and logically you follow the lanes ahead of you, you are going in the wrong direction, and can only go right it you start again where you went wrong. His provocative question is this: ‘Is western civilisation based on a mistaken understanding of humanity?‘  Yes, it is.

The flaw of liberal philosophy is the first of the delusions listed: “Human Nature is Good and Rational”. It is frightening to think that is not the case, because if man is a venal animal driven by emotional impulses then the beast may burst out at any moment – but man is an animal, and fundamental nature is evil: this is made clear in the Bible, and in the evidence of our own eyes. In the stench of the camps, or the gulags, or Afghanistan, could anyone really believe Rousseau that ‘Mankind is naturally good’? If we do not recognise the uncomfortable reality, then we cannot form society so as to restrain the beast.

Society can be too far restrained, and in most of the world it is. Only freedom enables development, innovation and the creation of prosperity. Freedom based on a cautious understanding of what lies in the heart of man is positive, and drove the prosperity of the modern age until liberal philosophers took a grip. Freedom itself is not the issue. Mankind is the clay of society, and misunderstanding the nature of the material, any structure must collapse.

The book examines ten specific delusions of the liberals; amongst them that mankind is good; that more freedom is always good; that morality is unnecessary; science is benign and religion harmful, and all that leads from these.

This is not enough though – the historian asserts himself and in the second section “The Dark Side of Liberalism” shows the direct result of these ideas since the Enlightenment. Some consequences and event are known to us and make us shudder still. Some, like the mass-murder of the Vendée after the French Revolution, have slipped from the collective memory and deserve recall. (History books are written by academic historians, much given to finding patterns where there are none, and fudging out events which disprove the pattern or the heroism they have attributed to men who were monsters; as are we all under the skin.)

The book is not long: the author resisted the temptation to pad it out just to be impressive.  It says what it needs to say, shows you why it is true, and no more. If only other writers would adopt that approach.

At the launch, the publisher was keen but cautious about the arguments, and it was only afterwards that I thought about this: a publisher will praise the industry and insight of his author but no one expects him to agree with everything written, but here was a book so intense in its insistence that he could not help but be drawn in. I hope that other readers will also be, and I would certainly urge our politicians to buy a copy and to digest it, considering whether, in fact, they have got something wrong.

See also

Books

Community returning

I was wrong:  I thought we had lost society for the long term, but it is roaring back quietly.

I relaxed in the lockdown evenings – no more organising for meetings not happening, no rushing home for a scratch meal before leaping out for some function or other, trying to work out where it was while driving there; no more weekends spent on the motorway finding a hall somewhere in Lancashire, or was it Yorkshire this time? (Do I have to turn round?)

Calls stopped coming. I wasn’t having to organise people or think of things to do. I did not have to yawn through others’ meetings and surreptitiously use the meeting to write another chapter or an algorithm. I could relax, and discover that there are evenings, and a home.

In villages and little towns and suburbs, churches, clubs and societies create a web of Big Society. Some go out to film clubs or collectors’ clubs, or  evening classes, or exercise classes, or amateur dramatics, or ladies’ book clubs, or just social meets round a bar.  (There are more village pocket orchestras than you would ever imagine; and writers’ clubs are everywhere: I might even go to one one day and see what they do.)

Then all this was gone; banned by government fiat in fear of the Chinese plague. The thread was broken. All over the land, people were realising they do not have to live by a timetable and an untended bowel in the best evenings of the week, when a sofa calls. How then could the clubs come back?

Yet they are coming back. The church halls of the land are full again. Organisers are clearly built of sterner stuff, and for all the welcome leisure we had, there is a yearning for society.

If I were tempted to think those coming back to the village halls are just those who no longer commuter and need to get out from their home-office, it is not: there cannot be too many home-bound workers left though, going by how the trains are packed again as once they were. In spite of the call of the sofa, the clubs are still coming back. Normality, our weird, Middle-Class, respectable rural / suburban normality is returning in spite of it all.

See also

Books

From disaster we must build

Twenty years and the dust was still falling, not even settling, and the nation beneath it coagulating, uniting. It began though an age of nations dissolving.

America is blessed.  In the dust of the disaster, they had unity of purpose and the structure of the nation and the government was unshaken – no one could take advantage and Osama Bin Laden’s boast that the United States would become Disunited, is bizarre. It is a fractured society today in a way it was not twenty years ago, true enough, but that has nothing to do with the events of that day, and it is fracturing of ideas, not of the nation itself.

Other nations are not so blessed. Tumult has destroyed many states in the last twenty years and it is naïve to think that dissolving a tyranny will ensure a free democracy will arise naturally from its ashes. Mankind does not work like that, which millennia of experience should teach us, but we are foolish optimists. America after the chaos of revolution, rose with a working, peaceful and largely democratic state, but that was only possible because the colonies had enjoyed a century and a half of democratic engagement on their own shores born of a centuries-long English culture of freedom and participation and pew-level Protestantism and the education it brought. Without that, chaos breeds only chaos.

Democracy is unnatural: an accident sprung from circumstances of the time in a few lands and surviving only through inertia and necessary myth. It is a strong myth in nations long bathed in it, as the English-speaking word is, but we cannot assume that of other nations.

It is a necessity a Law of Nature in Hobbesian terms, that we seek protection for ourselves and our families and in this is the necessity of creating a Common-wealth. Into this step adventurers. It would be lovely to think that would-be rulers will be benevolent princes accepting the responsibilities of government for selfless reasons, or that liberal democracy would spring up naturally. As we saw though in Afghanistan and in Iraq and in Libya and elsewhere, it is just whoever manages to slay their way to the throne.

Outside the culture of the Anglosphere, a disaster may weaken or destroy a government, and they we may fear an adventurer stepping in to take advantage. A dictator is as good as any in such circumstances.

This subjection of an individual to a new government is of necessity. From disaster we must build; build something however grotesque, to provide some common keeping-in-awe for our own protection. Accordingly it is by covenant and not by a right invented by the political ideas of a moment.

So it appeareth plainly, to my understanding, both from Reason, and Scripture, that the Soveraign Power, whether placed in One Man, as in Monarchy, or in one Assembly of men, as in Popular, and Aristocraticall Common-wealths, is as great, as possibly men can be imagined to make it. And though of so unlimited a Power, men may fancy many evill consequences, yet the consequences of the want of it, which is perpetuall warre of every man against his neighbour, are much worse. The condition of man in this life shall never be without Inconveniences; but there happeneth in no Common-wealth any great Inconvenience, but what proceeds from the Subjects disobedience, and breach of those Covenants, from which the Common-wealth had its being. And whosoever thinking Soveraign Power too great, will seek to make it lesse; must subject himselfe, to the Power, that can limit it; that is to say, to a greater.

In the fall of a government, there is desire to create another, but no immediate agreement: Rousseau’s “general will” is a laughable idea. The sceptre is as likely to fall to however first grasps for it, for good or ill. It would seem scandalous to us in nations long used to participatory democracy and equal laws, but not elsewhere, in desperation, and it is not democracy but political wiles which preserve the ruler, just as they raised him to his seat.

In those Nations, whose Common-wealths have been long-lived, and not been destroyed, but by forraign warre, the Subjects never did dispute of the Soveraign Power. But howsoever, an argument for the Practise of men, that have not sifted to the bottom, and with exact reason weighed the causes, and nature of Common-wealths, and suffer daily those miseries, that proceed from the ignorance thereof, is invalid. For though in all places of the world, men should lay the foundation of their houses on the sand, it could not thence be inferred, that so it ought to be. The skill of making, and maintaining Common-wealths, consisteth in certain Rules, as doth Arithmetique and Geometry; not (as Tennis-play) on Practise onely: which Rules, neither poor men have the leisure, nor men that have had the leisure, have hitherto had the curiosity, or the method to find out.

See also

Books