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Monday, December 15, 2003

A Follow-Up Exchange on Article 6 on US Exceptionalism (Continued), With A British Visitor

Francis, a British visitor , has left us a set of stimulating comments --- some supportive, others critical --- that deal with the argument set out in the previous buggy article published here . . . the 6th in the mini-series on US exceptionalism. Francis' comments are all the more thought-provoking because he has been a long-time resident of Italy, where he has held a number of jobs as he continues his writing career, and so he enjoys a built-in comparative perspective on both politics and general life in Britain and Italy. His comments uncoil here first, followed by a lengthy buggy set of replies. Both should help round out your perspective on the question of institutionalized mistrust of big government, only one of a wider series of limits on it and bureaucratic rule that exist in the American system ---- always, remember, for good or bad.

Francis' Comments

Prof Bug:

(i.) I think you are confusing "Anglo-saxon" exceptionalism with US exceptionalism in this article. In all Anglo-Saxon democracies the parliament is intended to monitor the executive. In the UK that is precisely what the Hutton enquiry into the recent WMD/Suicide claims has been doing. Likewise politicians in the UK are repeatedly hauled over the coals for failing to declare "interests" in individuals, companies, industries and foreign countries. Some have had their careers blighted temporarily or permanently as a result.

(ii.) Federal countries such as Australia or Canada also show similar tensions between the different levels of government, which helps keep the federal executive reasonably honest, however even in the highly centralized UK distrust of the government for one reason or another is extremely widespread. You may recall Mrs Thatcher's Poll Tax problems and indeed Tony Blair's problems with the various countryside groups and there is persistent distrust of the Eurocrats.

(iii.) Likewise any member of the House of Commons may introduce a bill and while it is true that bills introduced without government support rarely proceed that is not the same as never. Indeed it is quite common that a bill introduced by an MP whihc turns out to be popular is swiftly endorsed by the government of the day. And of course government support does not guarantee that a bill will be passed, even the Blair government, which has the largest majority for a considerably time has failed to get bills passed without major modification and some issues, such as the desire of numerous home secretaries to give us all ID cards, have never been introduced to the house because the government whips are positive that such a bill will be defeated.

(iv.) The difference, it seems to me, is that in the US there is much less of the belief that the government should be a "nanny state". That as you mentioned earlier truly is exceptional but British 17th century history resulted in numerous checks and balances within the parliamentary system. The USA may have codified them in a single constitution (and amendments) but they also exist in the hodgepodge of case law, precedent and legislation that is the British Constitution and all executives, including the current one, chafe under them.



Thank you for your stimulating comments. They're well worth replying to, and in detail . . . the replies set out in a fairly strict comparative manner.

(i.) The English-Speaking Democracies: Yes and No Regarding Common Features

Yes, you're right in a general sense: specifically, as the earlier buggy articles in this mini-series mentioned, there is a gap between the EU Continental countries on one side and all the major English-speaking countries on the other --- particularly, the absence of a long-standing statist tradition that goes back over the centuries; the lack of monarchical absolutism (save briefly in the early and middle of the 17th century in Britain);the impact of bottom-up common law as opposed to Roman law on the Continent; and the ability of the British to further limit executive power, often entailing large-scale violence in the Middle Ages and through much of the 17th century, thanks to parliamentary traditions and the decentralized power of the barons and free-towns and cities. Similarly, like Britain, the US, Canada, Australia, and New Zealand were all able to forgo the need for a large standing army throughout most of their history --- including conscription after 1800 except in the US civil war, WWI, WWII, and part of the cold war --- that would otherwise have led to a more greater set of monarchical and later Cabinet-government powers.

The reason for a lesser military and security role for the state in these English-speaking countries? They have not faced any major security threats directly on their borders from neighboring powerful countries.we could all rely on sea-power for major protection until the world wars of the last century, including the cold war that lasted until 1991, and a standing army and large tax powers for supporting it were unnecessary.

 (Canada and the US are something of an exception in the period of the American revolution and down through the end of the war of 1812: Britain, in both wars, used Canada as a base for attacking the Americans, and in turn many Americans agitated for invading and annexing Canada. Such talk flared off and on for three or for decades, only to fade into history. Since 1815, though, the 3000 mile frontier has never been fortified or closed off.)

That said, as this 6th article on the mistrust of big government will show by the time it's finished --- remember, it's only about half done --- the US stands out in its institutionalized limits on state power even compared to the federal systems in Canada and Australia.


(ii.) The Separation of Powers Again

For one thing, there is no major judicial review of the other two branches of government as there is in this country. For another thing, the upper houses aren't nearly as influential as the Senate either --- a further brake on executive power. Consider Jean Chrétien's Liberal Party in Canada. It never came near to winning an outright majority of the registered electorate --- in the latest election, it got only 26% of that full register --- and yet that was enough to give it control not just of the Canadian executive, but also both houses of parliament. In the upshot, Chrétien and his Cabinet continued to expand rapidly the welfare and regulatory state in Canada that began in the early 1960s with Lester Pearson and then Pierre Trudeau. Essentially, for these last four decades, Canada has been under the thumb of a single-party dominant system save for a brief interlude in the mid-1980s.

Are Canadians happy with this outcome? It doesn't seem to be the case. As an earlier buggy article showed,

• 86% of the Canadian population believes that politicians lie to get elected
• only 13% of the Canadian population has respect or confidence in political parties
• 87% of the Canadian population thinks the government should place more emphasis on consulting citizens
• only 28% of the Canadian population thought that average citizens had influence with government
• 79% of the Canadian population thought that average citizens should have influence with government (Ekos Research)


(iii.) Federalism in Canada and Australia Vs. the US's

Then too, the individual provinces or states in Canada and Australia lack the same sort of relative independence that the 50 states in the US enjoy vis-ŕ-vis the federal government in Washington D.C. Here again, if need be, the courts can limit or overturn federal intrusion into the authority of the states; and no less important, even the small states have two senators each in the US Senate --- by far, the weightiest of the upper houses in any democratic country. In the EU, the German Bundesrat has a fair amount of power compared to the rest of the EU's upper houses, save Italy's Senate; but it isn't elected by popular vote, and its authority is clearly circumscribed in the Federal Republic's constitution. In Italy, the popularly elected Senate has been influential, but Prime Minister Berlusconi has recently pushed to limit the upper house's policymaking to the regions; in any case, whatever happens there, nobody would think that Italy's government's isn't enormous and hard to limit or monitor effectively, let alone reign in the high-pulsating tendencies toward corruption and nepotism that mark that country's politics.

There's another way small states in the US are protected from majoritarian dominance, again for good or bad: the electoral college system for choosing presidents. When it was adopted by the Constitutional-framers, that system had two aims: to limit the impact of majority tyranny, something that bulked large in their minds what with the US the first democratic country in the modern world; and simultaneously to further protect small states from the tyranny of big states . . . a particular problem that has recently bedeviled the efforts of the EU governments to reach agreement on a new Constitution that, of course, stops far short of creating a federal union. We'll return to the EU problems here later on. For the moment, recall how controversial the electoral college can be. In the 2000 presidential election, Gore outpolled Bush in the popular vote, but when he lost Florida, its electoral votes put Bush into the White House. It was only the second time in US history, if I recall correctly, that a president was chosen who was outpolled in the popular vote, and only the 4th or 5th time when the electoral college's votes decided an election when there was no clear winner in the popular vote at all.


Come to think of it, Gore didn't get a majority either in a three-way race with Bush and Ralph Nader --- only a plurality. Whatever, small states remain jealously vigilant in defending the electoral college. Essentially, each state sends a slate of electoral college representatives equal to the number of Congressmen and Senators it has. Since a small state like Idaho has two Senators as do California and New York, Idaho has more clout than its population would warrant.

-- Sidebar observation: The problems dogging the Florida recount vote were, remember, settled authoritatively by the Supreme Court after several appeals to state and lower federal courts. Lots of Democrats were unhappy; they contended that Gore actually would have won Florida had there been a total recount vote of the state. Not so. A few months later, a research center at the University of Chicago that specializes in elections studied the tabulated results in the voting precincts across the state, some 99% in all, and they found that Bush was clearly the victor.


(iv.) Control of Legislation: A Limited Role for the House of Commons

In principle --- more specifically, in view of parliamentary traditions in Britain --- any Member of Parliament can introduce a bill on any topic. In reality, that has not been a practice since the start of WWII. Why?

Beginning with the vast expansion of the British welfare-and-regulatory state that the Labour governments of 1945 and 1949 introduced, the legislative agenda was so crowded that the party head, his cohorts in the Cabinet, and the whip ensured that the Cabinet would control almost the entire agenda each year in order to push through all the bills they wanted. That did not change when the Conservatives came to office in the 1950s, and the growth of British welfare-spending --- which also always entailed a similar growth of intrusive regulatory controls by the bureaucracies --- meant that executive-dominance of the House of Commons' legislative powers and timetable continued apace no matter which government was in control. Even in the Margaret Thatcher era, no changes were visible here. That's because all sorts of new legislation was needed in order to push through the reforms she and her supporters wanted, including a big reduction in regulations and welfare-spending.


About all that changed --- no small matter, admittedly --- was that starting in the 1970s, the House of Commons was able to increase both the number and authority of its Select Committees that could comment extensively on proposed bills and statutes, and report to the wider Commons. As one political scientist put it, Richard Rose --- an outstanding scholar at Strathclyde University in Scotland for decades (and an American journalist originally who got a D.Phil at Oxford while he reported on Britain) -- Whitehall departments [Whitehall is the area of London where the big civil service departments are located] draft legislation and decide which amendments presented to Parliament are accepted or rejected.

And the Cabinet role in all this? It too is usually minor except on highly divisive issues within the governing party. On such issues, assuming that the majority party's backbenchers in the House of Commons are themselves vocally divided, then Cabinet discussions will influence the proposals made to it by the Minister of a department, who in effect reflects the views of the civil servants --- themselves often in discussion for months with the representatives of powerful interest groups like corporations, industries, financial institutions, agricultural pressure groups, environmental groups, and now and then trade unions. On almost all issues, however --- nine-tenths of them, Rose and others assert --- MP's will vote in the end 100% along party lines.

The result as far as the ability of backbenchers or the Opposition party leaders to influence government legislation? Not much. "Of the amendments moved without government backing" in the House of Commons, Rose observers, "more than 95% are defeated." Similarly, the executive "enjoys the power of the purse: the taxes and spending measures it proposes are normally approved without modification" by the Commons. That leaves one possibility for backbenchers in any of the political parties represented in Parliament to influence legislation. Now and then --- really, not often at all --- an M.P. who's not a member of the government can propose a bill on his own. If it has any chance of passing, it has to deal with a minor, non-partisan issue; and even then, there will be little debate by the rest of the Commons.


In short, for decades now, we're dealing with an executive-dominated Parliament. The PM, the other party heads in the Cabinet, and the chief whip --- the latter in charge of maintaining discipline among the backbenchers --- dominate the Commons' agenda, determine when and how legislative bills and laws will be proposed, ensure that on almost all issues save highly divisive ones the majority party MPs on Select Committees vote a strict party line, are able with little fears to shape and get passed the annual executive budget, and can count almost always on a 100% toeing-the-line final vote on the floor of the Commons. [The role of the House of Lords --- which was once equal in almost all legislative powers to the Commons right at the start of the 20th century --- has been drastically cut back, starting with the Liberal reform-minded governments in power from 1906 until WWI's start. In the early 1920s, an efort to appoint Lord Curzon as Prime Minister then failed; the new constitutional tradition was that the PM had himself to be in the House of Commons. Further restrictions followed right after WWII, when the Labour Party --- enjoying outright control of the Commons for the first time --- reduced the Lords' role to delaying non-fiscal legislation for at most up to a year. The current situation? Some informed debates occur on the floor of the Lords, thanks to the replacement of almost all the hereditary aristocratic members with life-time appointees made by both Labour and Conservative governments. The few active Lords' members can also sit on joint Select Committees. Once and a while too, a Lord will be given a minor Cabinet post. Otherwise, it is a weak upper chamber.]

Note the phrase in italics in the above paragraph: highly divisive topics. What does it mean. A good question. In answer, fast-forward your attention to the analysis unfolded in the next section.


(v.) When Will The PM and Cabinet and Whitehall Departments" Heads Compromise?

Essentially, on rare occasions involving a highly contentious issue that clearly divides the governing party into clear, publicly vented factionalism. That means there have to be dozens and maybe hundreds of backbenchers in the governing party who threaten open dissent, and they in turn have to have at least one or two very powerful Cabinet Ministers who support them. In such instances, the PM and the other heads of the party have two choices: threaten punishment, including the ultimate one of withdrawing party endorsement for the dissenters --- a sure-fire recipe for electoral defeat in the next election; or compromise if the rebellion still won't be contained.

Even then, though, a determined PM and the party heads might push ahead with their original plans. Such was the case over going to war with Iraq last spring. A couple of Ministers in the Blair government resigned; several dozen backbench MPs were in open rebellion. The Conservative Party naturally supported the war, but was delighted to see the open Labour factionalism bared in public, so it tended generally to fence-straddle --- not that it mattered. The Conservative MPS were too small in number to matter, and Blair and his Cabinet went ahead with the decision to go to war and get sufficient approval from the large number of Labour backbenchers who supported them. Blair, though, did compromise in one respect: given how divided public opinion itself was on the war, he and the rest of the Labour Party leaders didn't threaten discipline against the dissenters.


So where are we?

Well, here: a PM and the party heads and whips might compromise on an issue they consider important. It all depends. But if they do compromise, it's not because of the House of Commons' influence as a legislature; rather, the compromises are reached, if they do materialize, in closed-door meetings of the MP's and party heads on their own. In short, we are dealing with party-management problems in a majoritarian system, not with the strength of the legislature itself.

By contrast, each house in Congress has full power over its own activities --- legislative and otherwise --- totally independent of what the White House may or may not want. Its members can introduce and do major bills of any sort ---- and the President's power to reject them rests on his veto powers. Even then, a determined Congress can overcome a veto with a 2/3 vote. And when either house --- Representatives or the Senate --- is in the hands of the other party, the President is obliged to find ad hoc majorities that will support his policies ---- including budgetary proposals that are drawn up by the various departments inside the US government. If he can't, then he will be forced either to compromise with Congress or cede totally.


(vi.) Monitoring and Other Watchdog Powers:

The reference a few paragraphs back to monitoring the executive is the last stand-out quality of the US Congress and courts, compared even to Britain and the other English-speaking democracies. Leave aside the role of the judiciary. Its influence in Britain, Canada, Ireland, Australia, or Ireland is clearly limited, for good or bad, compared to the US judicial system. Focus only on the legislature.

In particular, to get down to cases, you refer to the recent Lord Hutton inquiry in Britain over two related issues: whether the Blair government abused its powers (and twisted British intelligence) regarding Iraq's WMD, and what led to the death of David Kelly, the admirable British scientific advisor who was supposedly the whistle-blowers for the BBC's assaults on the Blair government over Iraq. And yes, as you indicate, it was an admirable inquiry, and for that matter, a separate House of Commons Select Committee is still continuing its inquiries into how intelligence regarding Saddamite Iraq shaped up.

But note a trio of things, two general in nature, the other concerning Lord Hutton's impressive work.

In the large, the authority to monitor the executive that the House of Commons' Select Committees now enjoy is fairly new in British politics. It really goes back only to the 1970s, until which point the Select Committees were few in number and weren't very specialized and had at best limited ability to force Cabinet members to disclose information. Since then, they have blossomed in influence and number; and they are more specialized and can certainly perform their duties more effectively. Secondly, though, a practical reality intrudes. As a general thing, the Select Committees lack the vast resources --- financial and expert man-power, especially support staffs --- needed to dig deep into Cabinet and bureaucratic activities and force disclosures and impose punishments on wrong-doers

Is the recent Hutton inquiry different?

Yes, and commendably so. But remember: it was Prime Minister Blair himself who called for an independent investigation into the death of David Kelly and the rumors swirling about that the Blair government had sexed up British intelligence reports --- an allegation, by the way, that the Hutton inquiry found was unsubstantiated. Similarly, it is the executive that decides whether to set up a Royal Commission to investigate any contentious issue. The House of Commons cannot in practice do this. Lord Hutton's committee of inquiry wasn't even chosen from the House of Commons. Himself a highly respected judge, he was, I believe, in the House of Lords, but all the major members were either lawyers or judges who weren't in Parliament. Come to that, whether the House of Commons Joint Intelligence Committee could have obtained all the documents it wanted and probed deeply into British intelligence without Blair's role here is . . . well, you can't be categorical one way or another just not clear


(vii.) Secrecy

Something else to keep in mind, Francis. Until the late 1980s, the secrecy surrounding the British executive was well-entrenched and heavily protected by law and traditions: hence the Official Secrets Act made it impossible for civil servants to do any whistle-blowing on their own --- even, remember, when they had left government. Then too there were and still are D-notices, which the British executive can issue that prevent the media from disclosing touchy evidence that deals with national security matters. Fortunately, for the well-being of British democracy, these barriers have been breached more and more since then. And not least, as you might further remember, because of the embarrassing disclosures in Spy-Catcher --- as the book was called in this country,: written by a former member of British intelligence who had retired and taken up Australian residency (and citizenship), it revealed all sorts of scandalous botches by MI-5 and MI -6, including some half-hearted efforts at sabotaging the reputation of the Labour government, headed by James Callaghan, that was in power in the late 1970s. The book turned out to be a big-seller in the US and Australia. In Britain, it was banned for years, and only the resulting uproar forced the Thatcher government to back down and let it be published there. Until then, believe it or not, the British parliament didn't even know the names of those who headed MI-5 and MI-6; and for that matter, neither did most of the Cabinet, rather only the PM and a handful of other key Ministers.

Against this background, the changes since then in relaxing traditional British secrecy are all the more welcome. In the upshot, compared to the French, Italian, and even German parliaments, the British Parliament is a better watchdog these days of executive behavior. Even so, that improved capacity to monitor the executive doesn't make the House of Commons the equivalent of Congress's powers here, never mind the differences in the roles of the judicial systems in the US and Britain. In particular, unlike Congressional committees with their huge staffs and budgets and the constitutional authority to arraign and interrogate all members of the executive save the President, British "parliamentary committees," Rose concludes, "have little political significance." Why? Well, among other things,

" . . . as committees move from discussions of details of either legislation or administrative and Cabinet behavior to questions of political principle, this raises the question of confidence in the government. Party loyalty usually secures the government against a loss of committee vote."

And if, back here in the US, a president looks like doing something wrong or appears uncooperative in dealing with Congress on significant matters, he's liable to find himself being investigated either by a Special Counsel or faced with impeachment charges. Nor is that all. As Vice President Cheney learned last year when he tried to stonewall Congressional committee investigations into some secret meetings at the White House with energy companies, Congress has alternative ways of forcing disclosure: it can appeal to a federal court and ask that it require the official or politician to supply the necessary documents, on pain of being in contempt of court and risking serious Congressional repercussions as well. A lower federal court did precisely that in 2002. Still trying to stonewall, the White House then asked a federal appeals court to overturn the decision; it claimed Congress was intruding on executive privilege. The appeals court did hear the case. Last July, declaring

"that the White House is not immune from legal proceedings, a U.S. appeals court yesterday rejected Vice President Dick Cheney's request that it block a lawsuit seeking papers from his energy task force. By a ruling of 2-1, the appeals panel said the White House must comply with an order from U.S. District Court Judge Emmet Sullivan last October to produce the energy documents, or give a detailed explanation of what was withheld, and why . . . "

There is simply no equivalent in Britain of this combined monitoring power. Or for that matter anywhere else in the democratic world. Does that makes the US political system perfect? Hardly. It does underscore how weighty and far-reaching the watchdog roles of Congress and the judiciary happen to be here.


Democracy vs. Great Power Influences

Historically, just to observe in passing, the difference in traditional executive secrecy that separates the UK from American constitutional practices --- never mind France as contrasted with them --- can be summarized in capsule form this way: both Britain and France were great powers and empires long before they were democratized. In consequence, only gradually did both countries accommodate both democratic practices and allow some role for legislatures to have influence over their traditional customs of secretive Cabinet diplomacy and imperial rule. In many respects, France's impenetrable secrecy and reserve powers in foreign and security policies that presidents wield in the 5th Republic make the political system in this arena resemble the ancien regime or the rule of Napoleon III in the middle of the last century. Since the late 1970s, by contrast, Britain's political system has noticeably opened up, but the tensions between old diplomatic and imperial traditions on one side and democratic transparency and accountability on the other continue to buffet political life there.

As for the US, it was a democratic country from the outset --- however truncated it now seems in retrospect, the first in modern history --- and those democratic practices were in place and operating for well over century before the US became a great power. In the upshot, great power diplomacy and security concerns were gradually grafted onto these democratic practices, however imperfect, that required transparency and accountability to Congress and the public. Tensions between the two traditions also buffet the US system too. They are likely to go on doing so as long as the US continues to be a great power.


Combatting the Europeanization of US Anti-Terrorist Laws

Ponder the tensions in the US on these scores. Only gradually, about mid-way through the 20th century, did a powerful security apparatus emerge in American political life, above all starting in WWII and on into the cold war. It was only then that conscription was used in peacetime; only then that defense budgets rose above derisory levels; only then that an intelligence agency, the CIA, along with other intelligence agencies, materialize; and only then that --- at least until the big divisions within American life broke out over the Vietnam war --- large leeway for presidential action abroad emerged. Since 1975, the ability of the CIA to operate abroad without close was reigned in severely; that was changed only after 9/11's terrorist attacks here. The president's war-making authority was also severely restricted again; it still is; the war against Saddamite Iraq was preceded by a formal debate and vote by the US Senate in the fall of 2002. For that matter, Bush and Blair tried for several months to get a second formal vote of approval for the war. And yet, as the controversies surrounding the recent anti-terrorist legislation indicate --- the same's true about the new authority given to the CIA and FBI here --- finding the right balance in American life between traditional respect for legal and civil rights on one side and genuine security concerns on the other is an ongoing, never-ending political and legal battle. Since 9/11, it is flaring once more.

For more light on this complex matter, see the previous buggy article published on December 10, 2003: A Follow-Up Exchange on American Exceptionalism With A Legal Specialist Note especially the lengthy analysis excerpted there by Jeffrey Rosen, a constitutional specialist at George Washington University and the legal editor of the weekly New Republic, a moderate liberal journal. As Rosen observes, the Bush administration's efforts to emulate the EU governments --- Britain's included --- and "Europeanize" its executive powers have generally failed so far. The thanks goes to both Congress and the judiciary. In particular,

"What distinguished America from Europe, however, is how quickly all three of these extreme [White House] positions met with opposition from the other two branches of government. In the case of Yaser Esam Hamdi, a 21-year-old American citizen seized on the battlefield in Afghanistan and now locked in the Navy brig in Norfolk, the U.S. Court of Appeals for the 4th Circuit refused to embrace what it called the "sweeping proposition" of the Bush administration -- "namely that, with no meaningful judicial review, any American citizen alleged to be an enemy combatant could be detained indefinitely without charges or counsel on the government's say-so." Hamdi, who is being held without charge as an enemy combatant, is something of an accidental citizen -- his parents were Saudis who were working here for a Saudi company when he was born. But other countries have been even less solicitous of their citizens since 9/11. The new British anti-terrorism law (now under appeal) gives the home secretary unilateral power to designate as an "international terrorist" anyone whom he perceives as a "risk to national security," and to indefinitely detain the person without charge if the individual can't be deported.

"American courts have also been aggressive in rebuffing the administration's effort to keep secret the names and deportation hearings of arrested aliens. In the months after 9/11, the government rounded up, arrested and jailed more than 1,000 non-citizens in America as part of its anti-terrorism investigation. Attorney General John Ashcroft refused to release the names, claiming implausibly that he was protecting their privacy. In August, Judge Gladys Kessler of the U.S. District Court in Washington rejected Ashcroft's interpretation of the Freedom of Information Act and the laws governing grand jury secrecy. She ordered Ashcroft to release the names, insisting that any need for secrecy could be established on a case-by-case basis."


(viii.) Britain and the EU:

All this does leave you wondering, from a different angle, how the British can accommodate to the growing regulation-mad powers of the EU bureaucracies in Brussels, inspired by French-and-German statist traditions and run by a relatively secretive Executive Commission with the approval of the individual member-countries' governments. There has grown up, it's true, some powers of monitoring accorded to the EU Parliament in Strasbourg, but they are limited. The Parliament isn't even in session much of the time, it draws from legislators in their own home-country parliaments, and it has hardly any impact on public opinion in the EU --- or vice versa.

More generally, to call the problems here a "democratic deficit" --- the usual term bandied about in Eurocrat jargon --- is to trivialize a serious threat to democratic accountability. There is an increasingly powerful bureaucracy and Executive Commission in Brussels; it has hundreds of billions of dollars for its budget; the influential decisions taken by the government in the Council of Ministers are focused on Commission-drawn proposals, and the deliberations are largely secret. Of the existing 15 member-countries, interestingly, only Denmark requires its Cabinet ministers to declare in advance what their positions will be in the EU's Council of Ministers --- which decides new policies in the EU network, voting on proposals drawn up and presented to it by the Commission --- and, afterwards, when they're returned to Denmark, to clarify how they voted in the end. Even then, the Danish ministers cannot divulge what other governments' ministers said or did during the Council's deliberations. It operates with veils of secrecy, and only the end votes are disclosed to the public, though the EU parliament in Strasbourg has been able, from time to time, to hold inquiries into some policy decisions.


Where are we again?

Back to where we started essentially.

In particular, ass you rightly note, Francis, the English-speaking democracies --- Britain included (moving tentatively toward some devolution of powers to Scottish and Welsh regional parliaments) --- generally share a long-standing English tradition of limiting executive power compared to the far more explicit statism on the Continent or in Japan. On the other hand, Britain stands out as majoritarian system with few checks and balances of the sort found in Canada or Australia, where federalism is stronger, never mind in the US. In only the US is there, for good or bad, a powerful and independently elected legislature in both houses --- the Congress and the Senate --- and only in those two houses are there sufficient legal and financial resources and expertise to fully monitor the executive and, if need be, impeach a universally elected leader of government. In turn, the restrictions on the president and the executive branch are further reinforced by an independent, constitutionally authorized judiciary to decide whether the behavior of either Congress or the Executive happens to be legal or not.


Two PS Tag-On's of Comparative Importance

I. Why the EU Member-Countries Stumbled Last Week Over the New Constitutional Proposals

The efforts to adopt a new constitution for the EU were stymied by few remaining stumbling blocks, not least the pivotal distribution of voting powers in the Council of Ministers --- where governments are represented and determine new policies on proposals drawn up by the Executive Commission at present (and possibly in the future by a stronger executive) --- among the various member-government: scheduled to number 25 next year. In particular, the mid-size countries --- Poland and Spain with 40 million each --- were to have about the same number of votes that Britain, France, and Italy with about 60 million each would have, along with Germany's 80 milllion. That decision was reached at a EU summit meeting in France in December 2000, and the Spanish and Poles refused to allow the Germans and French to increase their own voting power at their expense (though apparently they were open to some minor adjustments).

Note that the Spanish and Polish governments also reflected a wider view among the smaller states --- roughly 4-15 million in size --- that they don't want to be pushed around on major policy issues of key interest to them by a voting bloc of two or three big countries, plus a handful of others. Come to that, at the heated, highly contentious summit meeting in France in 2000, the Germans initially demanded that they get more votes than France, Britain, or Italy --- something the French balked at sharply.

Is there a solution possible?

Yes, but only by doing two things, both inspired by the US constitution: strengthen the powers of the European parliament in several matters --- finance and taxation, legislation of other sorts, and monitoring powers over the Commission and Council of Ministers --- on one side, and on the other divide it into two houses, the equivalent of the House of Representatives and the Senate. The House reflects the voting powers of the entire US electorate, divided into Congressional districts; hence the larger urban areas and states have far more representatives than the rural areas and smaller states. On the other hand, the smaller states have equal representation in the US Senate: two senators each, whether the state is California with 36 million residents or tiny Idaho or Wyoming with scarcely a million each.

Whether the EU countries --- none of whom have a powerful upper house, with the half-exceptions of the German Bundesrat and the Italian Senate --- would be happy with such a bicameral system is another matter, never mind a powerfully enhanced legislature that would ensue. None of the EU countries function with such a powerful legislative body, and all of them are executive dominated. Come to that, it's hard to even fancy that the EU governments or peoples would emulate the US electoral college, another concession that was made by the creators of the US Constitution in 1789 to the small states --- as well as a reflection of certain fears about what mass democracy might mean. (Remember, the US democratic experiment was the first in the world among modern countries; and the subsequent ideological extremism and violence of mass Jacobin revolutionary democracy in France just three to four years later vindicated the American Founding Fathers' determination to put restrictions on big government, a powerful executive, and outright majoritarian dominance at the expense of minorities, however viewed: in elections or on votes over key policies.)


II. British Exceptionalism: A Concentration of Power

Britain is an anomaly in the EU for another reason only touched on briefly and worth spelling out here: the Continentals all have proportional representation --- the actual electoral system varying across countries --- and hence the resulting Cabinets are almost always coalition governments. By contrast, the simple plurality system of the British --- the first past-the-post in a parliamentary constituency wins whether or not he or she gets a majority --- allows a party with a minority vote to take full control of both the executive and the House of Commons. Since 1950, no British party has actually won an outright majority. In 2001, Blair's Labour Party won about two-thirds of the House of Commons' seats, 413 total, even though it got only 43% of the vote. The Conservatives who got 33% of the popular vote ended up with about 40% of the seats in Parliament: 166. The Liberal-Democrats, who polled 19% of the vote, had to make do with a paltry 17 seats. All told 58% of the electorate bothered to vote. The result? Essentially, winning about 25% of the total electorate's support, Blair's Labour party was able to dominate both the legislature and the executive.

Is that bad?

No easy judgment can be made. Note though what this means in terms of concentrated power. Without a strong balancing federalism or separation of powers at the center --- without a powerful co-equal judicial review of legislation or even, come to that, a written Bill of Rights --- the British executive and legislature can be dominated by a party that gets 25% of the electorate's support and in effect pass any legislation that it wants . . . provided, of course, the governing party doesn't itself split in two over a contentious issue. From even a Continental viewpoint, that reflects a concentration of power that no government in the EU can itself attain.

Replies: 3 comments

"we could all rely on sea-power"

Only because we invested heavily in it.

Posted by John Ray @ 01/14/2004 03:33 AM PST

Oops omitted the BBC link somehow it is http://news.bbc.co.uk/uk_news/3360765.stm

Posted by Francis @ 01/02/2004 04:56 AM PST

This may amuse and is related to this discussion.

It seems that the BBC's Today programme thought that it would be a jolly jape for the festive season to let listeners vote on which law they would like to see passed (out of a total of 5 or so) and the law they chose was one that would explicitly permit householders to repel intruders using any means they wished to. It won 37% of the vote and the result has thrown the chattering classes into a tizzy as they discover that even staid and sensible Radio 4 listeners believe that self defence is better that letting the police solve the crime when they get around to it a few weeks later.

Other links to the reaction from the chatterers are http://news.independent.co./media/story.jsp?story=477413 and http://www.telegraph.co.uk/news/main.jhtml?xml=/ne/02/nradio02.xml&sSheet=/port/02/ixportaltop.html&secureRefresh=true&_requestid=92662

both of which (as well as the original) come courtesy of http://www.samizdata.net/blog/

Posted by Francis @ 01/02/2004 04:54 AM PST