High Jinks at the Plaza
- The British Constitution Now by Ferdinand Mount
Heinemann, 289 pp, £18.50, April 1992, ISBN 0 434 47994 2
- Constitutional Reform by Robert Brazier
Oxford, 172 pp, £22.50, September 1991, ISBN 0 19 876257 7
- Anatomy of Thatcherism by Shirley Letwin
Fontana, 364 pp, £6.99, October 1992, ISBN 0 00 686243 8
‘Constitutional theorists who wish to hold our attention must charm as well as instruct; this is not so, I think, in other countries,’ writes Ferdinand Mount. Who better to illustrate the claim? Few figures in the world of English letters possess such a combination of credentials. Author of a number of novels; columnist or leader-writer for half of the nation’s press, with a record of service from the Sketch to the Spectator; champion of family values; political counsellor at Downing Street: the editor of the Times Literary Supplement seems the ideal candidate for the task in hand. Nor is the success of The British Constitution Now in fulfilling the first part of the requirement in doubt. Mount’s account of the framework of the United Kingdom, and what repair it may call for, has already beguiled readers across the political spectrum. Commentators on right and left alike have praised its wit and acumen. If few have seen eye to eye with every proposal it makes, virtually all have agreed that this is the work of an enlightened reformer, of liberal temper, within the party of tradition. Here, so it would appear, is a rare conservative who might even be regarded as an ally, in his own fashion, of the franc-tireurs around Charter 88.
The admiration The British Constitution Now has won is not misplaced. It is, indeed, a graceful and intelligent book. But it has attracted a misapprehension. The charm of the image has, so to speak, obscured the instruction of the text. There are a number of ways of approaching this, but the best is probably to begin with its dedication. The book is devoted to the memory of Michael Oakeshott – whose thought, Mount tells us, has left its traces, ‘no doubt sadly smudged’, on many of its pages. At first glance, the affinity between author and authority seems straightforward enough, for Oakeshott was widely held to be the most civilised conservative thinker of his time, a philosopher above party or prejudice, admired on occasion as far afield as New Left Review. But it has more political charge to it than might be thought.
On 17 November 1975, Oakeshott delivered a public lecture in New York, ‘Talking Politics’, in honour of the 20th anniversary of the National Review, the journal of the American Hard Right. In the issue of 21 November, Mount – a regular contributor – toasted the appearance of Oakeshott’s ‘majestic work’ On Human Conduct, whose ‘fresh and memorable definition of political liberty’ was cause for ‘gratitude and celebration’. This was a representative number of the magazine. Mount’s homage was accompanied by two tributes, from James Burnham and F.R. Buckley, to ‘our century’s most successful ruler’, Generalissimo Franco – ‘a giant who will be truly mourned by Spain’, giving ‘the lie to cant about “fascism” ’. At the start of the journal was an admiring interview with General Somoza, ‘long the best friend the United States has in Central America’, as he set about the reconstruction of his country in the aftermath of the Nicaraguan earthquake. Winding it up came a warning from Robert Bork against the menace of the ‘clerisy of power’ now (under the Ford Presidency) steering the nation towards the shoals of equality and uniformity.
The following bumper issue of the National Review, on 5 December, was mainly taken up with the text of Oakeshott’s lecture, accompanied by ‘a pictorial essay’ on the banquet in the Grand Ballroom of the Plaza Hotel commemorating the journal’s 20th year – a Tatler-style spread awash with tuxedo and chalice, whose stars were Barry Goldwater (‘regarded more than any other living American with almost universal affection’) and Ronald Reagan (‘about to engage in a great enterprise – indeed this occasion is at once his last, and unlikeliest, chance to back out’). Peering out elf-like from the convivial flux was Oakeshott. Perhaps we should imagine the young Mount too, somewhere off-camera, hovering respectfully in outlying eddies. At all events, this is the constellation from which a consideration of The British Constitution Now – and for that matter, the new Times Literary Supplement – can most usefully start.
Mount’s book opens with a salvo against reigning complacencies and canonical authorities, calculated to win the sympathy of every radical reader. The vanities of British exceptionalism – the unique political wisdom of Westminster – and the illusions of seamless continuity in our constitutional development, are lightly dispatched. Then, at greater length, the received doctrines of Bagehot, Dicey and Jennings are dismissed as so many crude or mischievous simplifications of the subtler, more surprising reality of Britain’s heritage. Having demolished these, Mount proceeds to pass in review the actual shape of the country’s constitution – an edifice rather than an engine, he stresses, in Oakeshottian idiom. Surveying its principal parts in turn, he finds fault not only with the way they are understood, but also with the way some of them in fact operate. There has been, he concludes, a falling away from the original virtues of the British Constitution which still lie dormant within it. Mount’s proposals for reform seek to reawaken its ‘old spirit’, with a set of candid yet moderate changes, that would also help it adjust to the ‘incoming tides’ of the world outside the UK. Entrenchment of existing constitutional conventions, incorporation of the European Convention on Human Rights, fixed-term parliaments, some kind of Scottish Assembly, are the main items of this agenda. Moving in the right direction, supporters of Charter 88 might say, but not far enough.
The drift of the enterprise, however, is not to be caught so readily. The feature of Mount’s book that has perhaps most caught the fancy of the Left is its disposal of ‘the three great simplifiers’: the caning given Bagehot and Dicey, in particular, has aroused more than one pleasurable frisson. Greater attention should have been paid to Mount’s own classification of his trio: ‘By coincidence,’ he remarks, ‘the three most noted constitutional analysts represent each of the three main political tendencies – Bagehot the Liberal, Dicey the Unionist, Jennings the Fabian.’ A critic of all three, the reader can deduce, will not be pleading from any narrow standpoint of party. The description is, however, a feint. Dicey was indeed a ‘Unionist’, but he was never a Conservative, remaining a Liberal of Whig persuasion throughout his career. One of the ‘main political tendencies’ is tacitly exempt from stricture here, and forms the real basis for the critique of the other two.
For on inspection, the substance of Mount’s objections to the standard authorities turns out to be not their fabrication of conventional pieties, but subversion of them. In every other way the epitome of ‘manly common sense’, Bagehot had the bad taste to treat the Monarchy as if it were a mere charade to gull the masses, rather than a ‘heart-touching symbol’ of the culture they shared with the educated classes – and so in truth ‘the legitimate authority which was entitled to demand their obedience’. It was C.H. Sisson, from a Maurrassian background, who first vehemently lodged this complaint in The Case of Walter Bagehot, which Mount now repeats in more decorous terms, regretting that Bagehot should have been so distrustful of the broadening of the electorate.
Dicey was guilty of something worse. Behind his high doctrine of the sovereignty of parliament, unencumbered by rival power or binding precedent, ‘lurks the menacing, insatiable sovereign will of the people – the id to Westminster’s ego’. The tenets of Diceyan constitutionalism, despite appearances, amount in the end to little more than a formula for ‘mob-rule’, as his own conduct during the long Irish crisis, when he appealed for popular resistance to Parliamentary decisions, showed. Here the affront is to the rule of law itself. Mount affects to be shocked that Dicey could have contemplated insurrection to preserve the Union, as if his had not been an option entertained by many members of the political establishment of the time, including Bonar Law: indeed, it was a famous episode in the modern history of Mount’s own party. Like Bagehot’s opinions of the Second Reform Act, Dicey’s interventions against Home Rule form a tactically convenient stick for Mount to wave at writers whose real offence lies elsewhere – tarnishing the aura of monarchy, and opening the door to popular sovereignty. Jennings, by contrast, requires no side-gambit. Mount taxes him directly with ‘unashamed bureaucratic slurring’ of the Constitution by treating bodies like the trade unions as if they had some relevance to it. That was the road to a calamitous corporatism, swelling the pretensions and corrupting the integrity of government.
If such are the defects of the accepted authorities, what has been the practical effect of their doctrines – did they simply reflect or actually promote dangerous trends in the body politic? ‘Are Bagehot, Dicey and Jennings merely unwitting agents of an intellectual degeneration which was inbuilt?’ That would imply structural faults in our constitutional heritage itself. This is delicate ground, where Mount’s natural constituency has strong convictions, and here he treads carefully. His solution is an equivocation. Essentially, the problem is our ‘understanding’ of the Constitution, rather than the reality of it. If strains have appeared over time, the ancient structure contains the remedies for them – strengths that have been long neglected, under the distorting influence of official misinterpretations. The pragmatism of the past century is a ‘symptom of decadence’. The need today is to return to the principles that informed our original institutions: to recover the ‘old spirit’ of the Constitution, as Mount puts it.
The convenience of the notion lies, of course, in the absence of any letter to correspond to – or even contradict – it. The ‘British Constitution’ is, in any comparative meaning just spirit. Indeed, one might say, any number of them, in the table-turning sense. Mount’s own séance is rather desultory, and after a few erratic results, he abandons the board. The ghosts that briefly appear include Bracton, Grattan, inevitably Burke. The ideal past summoned up oscillates mistily between Angevin and Hanoverian times. Without lingering on either period, Mount passes to the safer task of ‘summarising’ the genie in general. Naturally it includes the rule of law, as an empyrean superior to all legislators. Beyond this, in Mount’s retrospect, the old spirit of the Constitution turns out to be what Montesquieu had supposed, but few English have believed – the separation of powers peculiar to our kingdom. Colported home by Leo Amery, the judgment of De l’esprit de lois re-emerges as the deeper truth of our institutions after all, whatever historians may say. This departure from the verdict of modern scholarship is not, however, pursued in any detail. For what Mount really wishes to stress is not the separation, but the multiplication of powers in the national past. The term he uses to deplore the modern decline of the Constitution is significant. When he describes the trend of the 20th century, he always speaks of the ‘thinning’ of British institutions – not ‘fusing’. What he means by this is essentially the process whereby first the Monarchy lost the substance of its prerogatives to the King-in-Parliament, and then the Lords lost most of theirs to the Commons, leaving the latter in something perilously close to full control of the State. In short, what is normally accounted the emergence of democracy.
It is this process which has remained incomplete. For in Ukania the supremacy of Parliament is not the sovereignty of the people, either in theory or in practice. The step from one to the other, which Mount reproaches Dicey with having paved, was never taken. The historical reasons why the forms of the new-old settlement of 1689 have survived three centuries are best set out in Tom Nairn’s Enchanted Glass, a study Mount consigns to a nervous footnote. But it is the appropriate gauge for measuring his own. For what a comparison of their work shows is that a critique of what both writers call ‘parliamentary monotheism’ can move in two, diametrically opposite directions. It can either point out all the ways in which Westminster remains a premodern assembly, without even the pretence of equitable representation of electoral opinion, not to speak of democratic control of executive power; or it can lament the lack of modern impediments to legislation enacted in the name of a popular mandate, of the kind that palace and peers once provided. Mount’s dislike of parliamentary sovereignty, 20th century-style, is of the latter kind. It is not adjacent to a radical rejection of the present system, as a somewhat more moderate variant along the spectrum: it lies at the opposite pole.
This is, of course, why Michael Oakeshott is the garden god of its intellectual landscape. For his theory of the State was designed precisely to rope off popular government and purposive legislation from the proper conduct of rule. ‘Civil association’, as the framework of order, debarred collective aims or common consent from the structure of government. These were the features of another kind of activity, ‘enterprise association’, which had nothing to do with true governance. The confusion of enterprise association with civil association, when rulers undertook ‘managerial’ tasks – intervening in economic life or meddling in social affairs: in short, any programme for public welfare – was the path to servitude. Mount, closer to day-to-day realities, can see the difficulties of this stark dichotomy for the practical politician, and assures us that the two kinds of association are not mutually exclusive, and were ‘not really intended to be so’. The pious gloss is without consequence. For the burden of Mount’s argument is that the Constitution should indeed be seen, not in the way Bagehot envisaged it – as an ‘engine’ for purposeful government – but as a civil association: a form of living, he writes, as exempt from wilful shape or aim as South Kensington.
This last flourish was probably penned while Mount was still a columnist for the Daily Telegraph – one can think of London boroughs whose name would give a less poetic effect. But the reassuring ring of SW3 does not mean that the idea it is intended to suggest is of simply local import. It was civil association that Oakeshott expounded to the National Review, and celebrated at the Plaza Hotel. Goldwater and Reagan were fighting for it before anyone had heard of Thatcher. So too, at his own station, was Mount, excoriating Macmillan’s collusion with planning and Heath’s retreat from the market as early as 1972, when the MP for Finchley was just another corporatist. In those days, the American Hard Right was well ahead of the British. But from the camaraderie between the two, lasting ties developed – Mount’s connections with the world of Bork and Burnham among them.
If, today, prime ideological occasions in the Times Literary Supplement often feature the talents of American neo-conservatism – Alan Bloom, Harvey Mansfield, Joseph Epstein, Hilton Kramer, Charles Murray, Paul Craig Roberts, Irving Kristol, even such names for the connoisseur as Richard Cornuelle – they are among the fruits of a mutually beneficial association. For on the one side, there are limits to local supply – the efforts of Conor Cruise O’Brien, Paul Johnson or Norman Stone, however infallible, will only go so far; while on the other, the lights of the New Criterion or Public Interest shine brighter in the reputable British mirror than they do more nakedly at home. The result is a formula that makes for a livelier mixture than before, in which liberals otherwise remain perfectly presentable, under an editor who has managed a turn without drawing unnecessary attention to it, or intrusive personal signature.
Behind the practical collaboration, however, lies a deeper attraction to the American polity itself. It is striking how often, when Mount turns for a foreign example from which the UK would do well to learn, it is to the US he looks. His zest is such that Thatcher herself stands revealed, through the happy chance of underlinings in a tattered paperback she gave the author, as – at any rate once – a secret believer in the superiority of American constitutional arrangements as a ‘system of fortifications for liberty and justice’. Wherein does such superiority lie? Not in a written constitution, or republican government, or separation of Church and State, or rights to freedom of information. What fortifies liberty and justice is the sort of thing Oakeshott had in mind: ‘a stately, even somnolent tenor of non-political life’, a ‘kind of procedural stateliness’ and ‘constitutional steadiness’ that has ‘impeded the advance of the enterprise-association conception of politics’. In other words, a state that is strong and stable, but with less ability to pass legislation, less expenditure on welfare, and less interfering turn-out at the polls.
How does the British Constitution today look, set against an Oakeshottian ideal? Mount proceeds to a stock-taking, for which he is well-equipped, combining, as he does, experience of the partisan think-tank, the modern mass media, and the arcana imperii of the Premier’s office itself. He begins his account of the executive, rather solemnly, with the Monarchy, which he complains has not been given its proper precedence before all other elements of government in recent textbooks. Any problems here? Only in received underestimates, stemming from Bagehot, of its vital role as the guardian of the Constitution. The culture of deference is imaginary, and the idea of citizenship redundant – subjects enjoy immemorial rights under the Queen. In fact, the Monarchy is blossoming in prestige as members of the Royal Family enjoy a new freedom of speech themselves. He even commits himself to the view that the Monarchy has a more secure sense of its future than Parliament ...
Next comes the prime minister. Has there developed an undue concentration of power in Downing Street, at the expense of the Cabinet as a whole, as Crossman and so many others have thought? Not at all. Mrs Thatcher, often frustrated, presided over neo-baronial government as her predecessors had to do – ministers taking no direct orders from Number 10. But then what about collective responsibility: don’t ad hoc coteries confidentially summoned by the PM often bypass the full Cabinet on important decisions altogether? Yes, and a very good thing too: strong executive government absolutely requires this. ‘The calling or non-calling of meetings, together with the inclusion or omission of items on the agenda, remains an important instrument of power’ – indeed ‘an indispensable weapon for the effective dispatch of business’. Does the Budget, too, have to be decided behind the backs of ministers? Certainly – ‘iron secrecy’ necessarily ‘ensures the impotence of the Cabinet in budgetary matters’. In fact, Mount informs us from experience, not even long-term strategy is a suitable topic for discussion by the body nominally responsible for governing the country.
What of the civil servants who staff the departments below each minister: do they, as is popularly supposed, exercise more actual power than their status officially warrants? Well, they have the advantages that naturally accrue to continuity and numbers, as against the transient politicians, with their few aides, above them; and they might (he suggests) benefit from business experience in, say, a tobacco company before serving public welfare at large. But the loyalty and integrity of this incomparable band is assured by their allegiance to the Monarchy – ‘a concrete reality and not mere sentimental memorabilia’, ‘a matter of the head as well as the heart’, with ‘practical as well as emotional implications’. Still, there is room for improvement in the organisation of the Service: the Prime Minister is stupidly deprived of direct control of the Cabinet Office – the green baize door separating it from Number Ten is even locked – on the old-fashioned grounds that functionaries should maintain neutrality by keeping their distance from the formation of policy. This is an anachronism: more command by Downing Street, not less, is the answer here.
Freedom of information? ‘The problem of open government seems a great deal less real once one has had even a modicum of experience of life inside government’: for example, ‘cabinets meet in private – a less contentious and misleading word than ‘ “secret”.’ Mightn’t the former Press Secretary have overdone news-management a bit? On the contrary: in an affectionate salute to his old colleague, Mount told readers of the TLS that the only shortcoming of Bernard Ingham’s stalwart service was that ‘he performed his office too faithfully and modestly, was insufficiently manipulative and viewy and did not actively help his mistress to conspire with the winds and tides of politics.’
In short, what we get here is government observed from the fastness of the Policy Unit in Number Ten – a Plumbers’ View of the executive. At every point, the imperatives are centralised authority, efficacy, secrecy. These are the values Mount served then and upholds today. Whatever one’s attitude towards them, his report of their machinery is compelling.
Moving on to the legislature, Mount contends that Parliament has three possible functions: remonstration, scrutiny and control. The first of these, redress of the grievances of constituents, he thinks the contemporary House of Commons performs excellently. The second, inspection or improvement of prospective Bills, it does very poorly. The third, monitoring of actions by the executive, it pursues only lamely. His own suggestions for reform concentrate on scrutiny, for which he thinks Special Standing Committees of the House, able to take evidence on Bills as well as read them, are the solution. The significant feature of this account of the role of Parliament, however, is the function it is not accorded: the capacity to make laws, rather than merely ratify or refine them. This is a legislature, in other words, that does not legislate. Mount approvingly cites his preferred modern authority to make the point. ‘The main task of Parliament,’ Leo Amery declared, ‘is still what it was when first summoned, not to legislate or govern.’ Or, as Mount puts it, ‘we have to recognise the intrinsic limits on the capabilities of Parliament, perhaps of all parliaments.’ This is not a reluctant acceptance of imperfection: such limits are to be reinforced, not regretted. The purpose of his new committees, Mount explains, would be to reduce the amount of law-making, by slowing the whole process down.
His depiction of current realities is, as one would expect, accurate enough. A long-standing lobby correspondent before becoming a policy adviser, his knowledge of Westminster is as close as that of Whitehall. But if we ask why the House of Commons is not a legislature, in the sense intended by the classical theorists of representative government in the last century – Guizot or Mill or Dicey – the answer has long been plain. Laws are not made on the floor of the House, but are determined by party leadership, and whipped through by party discipline. Debate is incidental. This is the central reality of the political process. What does Mount have to say about it? Nothing. There is no discussion of the role of parties within British constitutional democracy in The British Constitution Now. The enormity of this omission can be seen by a glance at any modern commentary on the subject. When Crossman wrote his introduction to Bagehot – still the best reflection on The English Constitution – his essential theme was the political transformation wrought by the rise of organised parties, which Bagehot never really grasped. A generation later, Dicey was well aware of the change, which he roundly attacked from the standpoint of an intransigent liberal individualism that held the independence of the MP in the Commons to be an indefeasible value. By 1941, the situation was such that Jennings could simply write: ‘A realistic survey of the British Constitution today must begin and end with parties and discuss them at length in the middle.’ And so it must continue to do – and in how much greater measure – today.
The fade-out that party suddenly undergoes in The British Constitution Now is a startling regression. It seems to compromise any claim Mount’s account could otherwise make to realism. What explains the absence? Certainly not inadvertence. A veteran of the Conservative Research Department and the Centre for Policy Studies, not to speak of the tabloid amplifiers of Tory opinion, of all his vantage-points Mount may know the perspective from Smith Square best of all. The reason parties are nevertheless screened out from his analysis of the Constitution is that consideration of them fatally poses the question his design is conceived to repress. What is the substance of democracy in Britain? The word does not appear in the index of Mount’s book. This is not an oversight. The term is not there because the idea does not animate the text. There is no surprise in this. For it was against the logic of democracy, as the exercise of popular will, that Oakeshott devised the theoretical scheme of civil association, whose hope was to put the pattern of wealth and power beyond its reach. The modern political life of Western societies has never, of course, corresponded to this dream. The reality has been a continual contest over social ends, between organised parties competing against each other, as vehicles of the popular will. This is the form of the democracy we possess.
Its substance therefore inevitably turns on the ways in which the parties themselves are constituted and elected – in other words, on how far their organisation is free, their funding fair and their representation equitable. Distortion in any of these three conditions means, straightforwardly, diminution of the chances of democratic self-determination. In Britain, the block vote in the Labour Party provides a notorious instance of the first; the corporate finance and tycoon press of the Conservative Party a flagrant example of the second. But uniting the two parties is their exploitation of the third – a voting system that regularly disenfranchises up to a quarter of the electorate. It is the ending of this mortmain that is the real test of constitutional reform in Britain. Mount, aware that the first-past-the-post system is no longer quite so untouchable, goes through the motions of considering changes to it, but naturally rejects them. Even by unexacting local standards, the arguments he puts up are nugatory. But they should not be unduly held against him, since the role of parties and the nature of their representation have been excluded from his agenda in the first place. For these, we are given to understand, belong to the order of mere ‘facts’ of the political landscape, which have nothing to do with the ‘structures’ of the Constitution. Jennings’s great mistake, Mount explains, was to confuse these two quite distinct orders of reality.
This is not the sum of what Mount has to say about the legislature. There remains the other chamber. How does he view the Lords? He would like to see it gain more authority, and to this end is willing to concede some ‘reduction’ – but not abolition – of its hereditary element: we are referred to Lord Home’s Conservative Party Report to Mrs Thatcher (1978) for details. It is the aim rather than the means that is significant. For the role of the Lords which Mount would like to see enhanced is judicial – ideally, the emergence within it of a supreme court to rule on the constitutionality of laws passed by the Commons, or actions taken by the executive. This evolution would cap a wider change. For in Mount’s conception of reform, the judiciary is the branch of government with a future. It is not below, in the emancipation of political choice among the electorate, but above, in the higher deliberations of the Bench, that liberty can be enlarged.
Political temperaments without any mixed impulses or traces of ambiguity are rare. The diversity of Mount’s gifts and avocations makes him unlikely to be an exception. There are good reasons for wishing to entrench civic rights in law, against executive abuses, in Britain, and Mount gives forceful expression to some of them. If there is one note struck in his book which has, understandably, attracted the reformers of Charter 88, it is this. Here, at least, one can detect a definitely libertarian thread in his argument, leading to a plea for incorporation of the European Convention on Human Rights in British law. It would be wrong to minimise it. But the generous note struck on these pages must find its place within the score as a whole. There, the logic of doctrine determines the selection of attention. For, despite the general plea for greater protection of the rights of the subject, silence falls over every specific oppression of them. In a discourse on civil liberties, one searches in vain for those landmarks of British justice – Birmingham, Guildford, Gibraltar. GCHQ or Spycatcher might have never happened. There is only one case that comes to mind, Ponting. What is to be said of him? ‘It was generally agreed that, rather than leaking or going public,’ Mount writes, ‘he should have taken his anxieties to his Permanent Secretary and rested content with the advice given him by that dignitary.’ Generally agreed? A pity about the jury. What counts is the good sense of the judge.
Here the sensibility of The British Constitution Now is all of a piece. Mount’s generally cool prose flushes into rubicund enthusiasm whenever judges are mentioned. There is the inestimable service to the nation of Lords Hewart, Radcliffe, Denning; the stout performance of Lord Lane, traduced by journalists and demagogues; the veritable ‘revolution’ in our courts, as increased judicial review brings the vital breath of natural justice to them. The suggestion that the composition of the British judiciary might harbour any dangers for the freedom of the ordinary citizen is ‘little more than a cheap attempt to arouse popular paranoia’. Mount’s particular admiration goes to former Chief Justice Denning, whose ‘noble’ efforts more than any other ‘kept alive in the minds of Englishmen an idea of law which is broader and higher and more enduring than the ever-fattening annual volumes of Acts of Parliament’. It is as well to remind ourselves that Denning was the judge who said of the Birmingham Six: ‘If the six men win, it will mean that the police were guilty of violence and threats, that the confessions were involuntary and were improperly admitted in evidence: and that the convictions were erroneous. That would mean the Home Secretary would either have to recommend they be pardoned or he would have to remit the case to the Court of Appeal. This is such an appalling vista that every sensible person in the land would say: it cannot be right that these actions should go any further.’ If sentiments such as these count for so little in Mount’s scale of things, we may assume it is because he is thinking of Denning’s higher services. His hero might on occasion be ‘erratic’, but he led the way on the real battle-front of liberty – on the moves to curb the trade unions, who have been ‘wrecking Britain’s industrial prospects for most of this century’.
Confidence in the judiciary allows for a kind of semi-inscription of the wisdom of the Constitution. This would not amount to any written instrument as formal as a charter, which might raise awkward questions of philosophical principle or architectural coherence, but would simply take the form of a Parliamentary Bill enumerating certain rights and procedures that could only be altered by a two-thirds majority in any successor Parliament. Interpretation of this Act would be entrusted to the courts, extended by a final tier of specifically constitutional judges seconded from the Lords. For the credentials of this solution, we are referred to cousinly arrangements in New Zealand (an example that has presumably become less congenial since Mount wrote – its citizens having just voted by a majority of over 80 per cent to question first-past-the-post). An appeal to reassuring precedent in the former White Dominions is now a common move in moderate reforming literature. In Rodney Brazier’s Constitutional Reform, for example, which appeared shortly before Mount’s work, it is Australia that affords inspiration for improvements at home.
The contrast between the two books is revealing of the limits of Mount’s approach. In a quiet and unshowy way, Brazier’s apparently more conventional study is consistently more radical. It puts the realities of party at the centre of its analysis of the Constitution, and of the prospects for changing it; argues for electoral reform, if only the alternative vote; envisages popular recall of MPs to make them more accountable; requires reduction in prime ministerial powers and collective control of the Budget; notes the ‘dismal catalogue’ of affronts to civil liberty under Thatcher’s rule, and the ‘record number of cases for any state represented in the Council of Europe’ decided against the UK in the European Court of Human Rights; points out that ‘the entire judiciary in England and Wales owes its appointment to one, and occasionally to two, politicians,’ and calls for a Supreme Court that would ‘not be composed only of men, drawn from a small pool, unrepresentative of the general population’. Brazier’s work, for all its merits, is still in many ways quite cautious. For a more comprehensive programme of reform, we must turn to James Cornford’s impressive plan for a democratised British state, with its detailed draft of a written constitution.[*] There the issues of popular sovereignty and of equitable representation, the core of meaningful political reform in Britain, acquire their fitting relief. Mount’s otherwise abundant references to current constitutional writings, perhaps unsurprisingly, include no mention of it.
What do the different elements of Mount’s package amount to? Greater reverence for the Monarchy, unchanging prime ministerial authority, no ventilation of the bureaucracy; less legislation by Parliament; wider powers for the courts. There is a rights dimension to this, but it is a very modest one: entrenchment of an existing minimum, not development towards any optimum. Consecrated executive, inhibited legislature, fortified judiciary. It might be said that Mount, rather than overthrowing Bagehot, has merely refurbished him, with a schedule of works whose formula is: redecorate the dignified and pre-stress the efficient parts of the Constitution. But there is a difference, to which Mount is entitled to draw our attention. The efficiency of the renovated structure is not be conceived in dynamic fashion. The state as civil association requires the abandonment of its misguided ventures into enterprise association. The genuinely radical element in Mount’s programme lies not so much in its astigmatic concern for civil liberties as in its off-hand proposal to abolish entire ministries to slim down the state. Energy, Agriculture and Employment head the list, but there seems no reason why Trade and Industry should not follow. Here, there is a first touch of the drastic Hayekian spirit in an otherwise Oakeshottian scheme.
Hayek himself, of course, had too forthright a view of the shortcomings of the Ukanian Constitution to be a comfortable guide to it. British government represented a ‘monstrosity and caricature of the ideal of the separation of powers’, he wrote, adding that Parliament could even theoretically send him to the Tower for saying so. His own remedy for the ills of parliamentary supremacy was to reconstitute the legislature into a superior chamber, based on electors of mature age only (over 45), to invigilate strict constitutional rules, and an inferior one, based on universal suffrage, allowed to pass limited statutes within them. Mount’s realism naturally precludes reception of this idea. But the general sense of his scheme moves in the same direction: conversion of the upper house into a garde-fou of the lower. In tune with Oakeshott’s prescriptions, however, institutional changes are not advanced in any rationalist spirit as blueprints of improvement, but rather as intimations of so many ‘shapes to come’ latent in the course of things itself. Recapitulated at the end of the book, such reforms unfold in succession: first ‘becoming visible’, then ‘likely soon’, finally, discernible ‘in the longer term’.
The alterations envisaged are ‘plausible’, Mount explains, in the happy sense of being both desirable and probable. But, from a Conservative standpoint, there is still the question: why make any changes at all? Mount readily concedes that ‘the case for the status quo is a powerful one.’ What then has caused him to consider amending it? At first glance, the answer would seem to be a reaction against the corporatist extensions, or illiberal intrusions, of the post-war state into civil society. That certainly looks like the underlying concern of his introductory theme, summoning up the diversity of powers in the old spirit of the Constitution against the dangerous presumptions of an overmighty Commons in the new. It is an echo of Oakeshott’s way of justifying reform – as the ‘correction’ of an ‘accumulated mass of maladjustment’ due only to the ‘negligence of past generations’. ‘It is important to appreciate how much we have forgotten,’ Mount insists, reminding us, as his mentor liked to do, of the origins of British freedom in the ‘dappled world’ of the Middle Ages.
Such gestures prove less of a guide to the pressure of the book than might be imagined, however. It is noticeable that, intellectually, Mount himself scarcely insists on them. After first describing the original form of the Constitution, since fallen into neglect, as ‘a magnificent structure, delicately yet powerfully stressed and balanced’, he forgets himself, to the point of writing on the next page, of ‘a set of arrangements so notoriously fluid and imprecise’ that ‘even to outline firmly anything which can be dignified by the name of structure is to invite attempts to subject its girders to stresses which they were not designed to withstand.’ Politically, moreover, the traditional dangers which have exercised critics of governmental corporatism, or for that matter authoritarianism, do not loom large in what follows. The reasons for that are fairly clear. Thatcher’s rule, after all, has beaten back the first; while Mount seems content with most time-honoured manifestations of the second. It is certainly not any failure to sell British Rail, or success in neutering the Cabinet, that has prompted The British Constitution Now.
The real spurs to reform lie elsewhere. Mount moves on to them at the end of his book. They correspond to a set of problems which were left unresolved for British Conservatism by the Thatcher years. The first of these is the position of Scotland within the United Kingdom. The difficult position of the Party north of the Border, in country now permanently in opposition to it, and potentially capable of slipping the leash altogether, has long counselled some accommodation to national feeling. Here Mount ingeniously turns Tory prejudice against logic or symmetry into an argument for a Scottish Assembly inserted below Westminster, without reduction of Scots representation in London – or substantial autonomy in Edinburgh. ‘So long as it is carefully constructed along minimalist lines’, such an untidy arrangement would help to preserve rather than weaken the Union.
A second and graver problem is posed by the fate of local government under Thatcher. Within Conservative ranks, Mount was a prescient critic of the Poll Tax from the start, and his hostility to it – ‘one of the worst and most obviously doomed innovations in British political history’ – has not abated. But he goes out of his way to stress that the restless record of previous Labour and Conservative administrations was not much better. The root of the evil lies in an excessive Parliamentary centralism that has led to frivolous disdain for municipal independence and county tradition alike. It is unlikely he now regards the Council Tax, already exposing the Party to further strains, as much of an improvement. The solution lies rather in a clear and stable demarcation of the powers and revenues of local authorities, to ensure ‘responsible housekeeping’, by means of a constitutional settlement which should, wherever possible, restore ‘historic loyalties’ on the ground.
Here a significant bifurcation in Conservative retrospect has occurred. For alongside Mount’s book, we now have another Oakeshottian study, Shirley Letwin’s Anatomy of Thatcherism, which draws the opposite lesson from the Community Charge. The two authors were associates together in the Centre for Policy Studies, and share much the same theoretical commitments. Where Mount expressly keys his work to Oakeshott’s distinction between civil and enterprise association, Letwin tacitly organises hers around Oakeshott’s contrast between the spiritually ‘self-employed’ individual and the ‘dependent’ anti-individual. The real thrust of Thatcherism, she contends, was to revive the ‘vigorous virtues’ characteristic of the former – not simply those of Lords Hanson and King, but also of Dr Johnson and Edward Elgar, of Baden-Powell and Edith Cavell – among a population long inured to the vices of the latter. Letwin’s account of these years, the doughtiest defence of the former prime minister to date, is nevertheless not uncritical of her record. Higher education, where Thatcherism betrayed Oakeshott’s ideals of liberal learning for the misplaced targets of an enterprise association, was certainly a black spot – one that seems to have left Mount, removed from academic life, more indifferent. On the other hand, Letwin, trouncing critics of the Poll Tax, treats reverence for imaginary ‘traditions of local autonomy’ in Britain in the brisk spirit of Churchill’s mot on the customs of the Navy. The major failure of Thatcher’s third administration did not lie in local government, but in its failure to keep control of inflation. The technical means of doing so necessarily vary over time, however, and this defeat didn’t entail a burial of the Thatcherite cause of reviving the vigorous virtues of a specifically British morality. Simply, the battle-front has changed, as the major adversary has become the bureaucratic ethos of European federalism.
Europe is, in the end, the decisive issue for Mount too. In the deepening quarrel within British Conservatism today, the two theorists take opposite sides. For Letwin, authentic British individualism has never had any counterpart on the Continent, and the ‘ever closer union’ promised by the Treaty of Rome spells the extinction of our national independence. Her book, which takes the Constitution for granted, ends with a none-too-coded warning against those who could prove to be the usurpers of Thatcherism. For Mount, on the other hand, the institutions of the Community are now realities of life in Britain, to which timely adjustment must be made. By the end of his book, the central argument for taking the step towards something like a written constitution becomes the fact that the legal obligations of the European Community have already in effect imposed one on us, which we might as well ‘patriate’ into a proper English version designed by ourselves. In this logic, if – in Lord Denning’s phrase – the incoming tides of the Treaty of Rome cannot be halted, then let us dike and polder them into some fruitful landscape of our own.
This is an argument from necessity. Mount, however, goes beyond it. The Community is a modern project, yet one linked to the old idea of Christendom. It stands for human rights, and shared ecological concerns. There is an unmistakable whiff of what the Spectator would deride as ‘Euro-enthusiasm’ in these pages – Mount at moments even uses the suspect jargon of Brussels, extolling subsidiarity (‘foreign clap-trap’ in Doughty Street). Behind this feeling for Europe, there is an attractive width of personal culture, free of any sour insularity. But it would be an error to take Mount’s vision of the Community as – so to speak – a sympathetic streak of wetness in an otherwise bone-dry political outlook. The great merit of the EC is to form a vast space of free trade. Monetary union is no threat to a deregulated capitalism, but its best insurance. For a European Central Bank whose independence of political pressure was constitutionally entrenched – that is, of just the kind foreseen at Maastricht – would be a far tougher policeman of a sound currency than any national set of politicians could be, subject as they are to electoral temptations. Turning Nicholas Ridley’s arguments against him, Mount remarks that the only practical reason for opting out of the ERM would be to resort once again to the discredited tool of devaluation. ‘The powers which are liable to be surrendered in European economic union are the very powers to do things which most robust free-marketeers abhor. By contrast, constitutional entrenchment of the economic principles they hold most dear can, it seems, be achieved, if at all, only at European level.’
There is a history to this argument. Oakeshott, whose technical theory afforded no space for the nation-state, since collective solidarity was not a principle of civil association, had – as might be expected – nothing to say about the prospect of a supra-national one. Asked his view of Britain’s entry into the EEC in the early Sixties (Noel Annan reports), he replied: ‘I do not find it necessary to hold opinions on such matters.’ Hayek, on the other hand, held firm and far-seeing ones. As early as 1939, he argued in his prophetic essay ‘Economic Conditions of Inter-State Federalism’ that transcendence of national sovereignty in a supra-national framework should be of natural advantage to a free economy, since the higher the plane on which its structural parameters were set – that is, the remoter from local faction and interest – the more insulated they would be from popular passion. In other words, the less immediately democratic the machinery of decision, the safer it was likely to be for the reproduction of capital. Of course, this was less a logical deduction than an empirical wager – that the task of constructing a supra-national popular sovereignty, capable of determining the social path of a supra-national economy, would prove impossible. That calculation has yet to be confounded, as the terms of union agreed at Maastricht – a central monetary authority for Europe, without any commensurate elected assembly – show.
In making the wager his own, Mount is not a heretic in the ranks of the radical Right, but faithful to his origins. The British Constitution Now does not seek to enlarge democracy, but to circumscribe it, in the interest of older liberties. It does so with a light touch and a good-humoured air which deserve the compliments they have received. Mount’s first book on public life was called The Theatre of Politics. The trope was eminently Oakeshottian. Politics was not a battle of interests, or a quest for truth, or a voyage of progress – it was an aesthetic performance, to captivate an audience. But it was not high theatre (Oakeshott had also insisted that politics was a second-rate activity). It was more like commercial theatre, the drama of the boulevards that plays to our emotions or embarrassments – Rattigan rather than Racine, he explained. On this stage, Mount has certainly given us a sprightly production. We might call it the comedy of reform.
[*] Constitution of the United Kingdom, discussed by Peter Pulzer in the LRB (5 December 1991).