13 July 2020

Brexit: the Conservative Dilemma – The Principle of Majority and National Sovereignty

Brexit has raised a number of serious challenges to the British political traditions and perhaps none of them has been more dramatic than the dilemma facing the conservatives. The dilemma in question is not something that aroused the interest of the tabloid newspapers, nevertheless it is unquestionably of considerable theoretical significance and needs an elaborate explanation. This article wishes to highlight the conflict between two political positions: that of the traditional conservative conception of government and the defence of the attachment to complete national sovereignty. Why do we speak about a conflict between them? The paradox of the situation is that these principles usually do not clash at all, what is more, they are even in harmony. However, in the extraordinary context of the Brexit process to argue for the legitimacy of the outcome of the 2016 referendum has required discarding the time-tested “elitist” approach to politics, an approach based on the idea of limited democratic participation. The opponents of Brexit kept on reiterating that a decision of such significance must not be based on the principle of sheer majority, a standpoint, which, one could hardly deny, in itself has never been alien to conservatives. To the question of why should a small majority allow the winners to impose their preferences on a significant minority an easy and evident answer is that majority voting is the established way to decide public choices. However, a conservative may not be fully satisfied with this kind of simple answer, unless there are other important considerations for accepting it – and Brexit provides such considerations in abundance.

 

THE CLASSIC CONSERVATIVE ATTITUDE TO GOVERNMENT

 

The remarkable study of Matthew Hall, David Marsh and Emma Vines rightly stresses that even though we can find different political traditions in Britain, there is a dominant political tradition, “a particular conception of democracy” underpinning the institutions and processes of British politics.1 In their approach the British political tradition (BPT) contains “a limited liberal view of representation” and “a conservative view of responsibility”. This view suggests a limited access to decision-making; the BPT “equates responsible government with leadership and prudence”. The above-mentioned three Australian scholars point out that in the BPT a “responsible” government is not a “responsive” one; its policies are not guided by the immediate approval of the electorate. If we cast only a quick glance at the intellectual history of British conservatism, there can be no doubt that mainstream conservative thinking has never espoused the idea of drawing the masses into politics. (The same is true, probably to an even greater extent, of continental conservatism.)

To prove what we wish to express let us quote the view of the “founding father” of modern conservatism, Edmund Burke. Writing about human rights he emphasised: if we can speak of natural rights at all, then they must certainly include the negative right of the masses to be kept away from political decision-making. It is worth quoting Burke precisely: “Government is a contrivance of human wisdom to provide for human wants […]. Among these wants is to be reckoned the want, out of civil society, of a sufficient restraint upon their passions. Society requires not only that the passions of individuals should be subjected, but even in the mass and body as well as in the individuals, the inclinations of men should frequently be thwarted, their will controlled, and their passions brought into subjection.”2

Mainstream conservative thinking has not – up to now – basically broken with this conviction.3 For most conservative theoreticians political inequality and the special responsibility of the elites is rooted ultimately in human nature itself; the unequal distribution of human characteristics will “inevitably result in an inherently unequal society”.4 At the beginning of the new century, in 2004 the excellent publicist, Peregrine Worsthorne eloquently argued that even democracy needs an aristocracy.5 Citations from conservative writers could be continued most of them stress, from various points of view, the necessity of entrusting the leadership of a society to a “natural aristocracy”. The reason is clear: numbers alone cannot be decisive. This conviction can be considered to be a crucial component in the patrician variant of classic conservatism which stands in sharp contrast with plebeian politics.
 


ATTACHMENT TO NATIONAL SOVEREIGNTY

 

However, in the Brexit process this “elitist” position clashed with another basic tradition of classic conservative thinking namely, with cherishing the idea of national sovereignty and of the nation state, because the protection of the latter position has made it necessary to break with the preference for limited popular participation and to rely on the principle of absolute majority. What can we say about the role and significance of national self-determination in British conservative tradition?

To start with: conservatives are generally convinced that political authority resides in the nation state. As for Britain, prior to the Second World War there arose no need to theoretically defend national sovereignty since no one had called its importance into question. The process of European integration created a new situation representing a new challenge to the UK. As is well-known, the reaction of London was for more than a decade to avoid joining the newly established organisations for integration, first the European Coal and Steel Community (1951), and then the European Economic Community (Common Market, 1957) which would have required relinquishing an ever-increasing part of national sovereignty. One of the chief aims of these organisations was to thwart new wars on the continent and it is not difficult to understand the appeal of this orientation in war-torn Europe. However, its proponents did not take into account the exceptional position of Britain. What is meant by this? While the overwhelming majority of European nations became compromised in some way or other in the war with Hitler’s Germany, it was Britain alone that succeeded in avoiding any concessions to totalitarianism and in keeping its nation state intact. John Redwood, the influential conservative politician spoke succinctly about what the present author has in mind: “Britain is at peace with its past in a way that many continental countries could never be […]. We do not have to live down the shame that many French people feel regarding the events of 1940–44. We do not have to live […] with the collective guilt that Germans feel about the Holocaust.”6 In fact, it was the uncompromising attachment of the British nation to its sovereignty that fuelled the heroic resistance to the German threat. Here lie the reasons of why Winston Churchill, the first European statesman to suggest the creation of a United States of Europe did not wish to include Britain in the new Europe. His attitude was, as expressed as early as 1930 that the British are “with Europe but not of it”. They are “associated” but not “absorbed”.7

Churchill’s Tory successors, with the exception of the pro-integration Edward Heath who had managed to join Britain to the EEC in 1973, also shared this deep-rooted scepticism toward the idea of a supranational Europe. Margaret Thatcher summarised her views in her famous Bruges speech in 1988 when she sharply criticised the intention of Brussels bureaucrats to form a politically centralised Europe. She declared: “To try to suppress nationhood and concentrate power at the centre of a European conglomerate would be highly damaging […]. Europe will be stronger precisely because it has France as France, Spain as Spain, Britain as Britain, each with its own customs, traditions and identity. It would be folly to try to fit them into some sort of identikit European personality.” Consequently a successful European Community needs the existence of independent and sovereign states.8

 

THE SPECIAL CHARACTER OF THE BRITISH CONCEPTION OF SOVEREIGNTY

 

As demonstrated above, uncompromising insistence on national sovereignty has always constituted a crucial component of British political conservatism. But what is the theoretical connection between the deep-rooted tradition of Euroscepticism and the conservative argumentation for national sovereignty? To answer this question we should have a look at the specific features of the British conception of sovereignty. Their analysis provides us a clear explanation as to why the British approach to sovereignty has proved to be incompatible with the standpoint of the EU, why “global Britain” has not been compatible with the “ever-closing union” project of European integration – in short, why Brexit took place.

The feature that first comes to one’s mind in this regard is the often-cited doctrine of parliamentary sovereignty. Its main content was formulated by A.V. Dicey in the last quarter of the 19th century in the following words: “The principle of Parliamentary sovereignty means […] that Parliament has […] the right to make or unmake any law whatever, and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.”9 It follows from this definition that the power of Parliament is unlimited; it is the primary guardian of national sovereignty. It was in this spirit that the Sovereignty Clause, Section 18 of the European Union Act of 2011 stated that EU law has effect in the UK only because British law so provides. As the political scientist Thomas Bryant points out in his study, any restriction on the sovereignty of the United Kingdom is seen to be an attack on the privileged position of the Westminster Parliament.10 Parliamentary and state sovereignty, though they are not the same, are in practice inseparable. The present Prime Minister, Boris Johnson summed it up in the following words in 2016: “You cannot express the sovereignty of Parliament and accept the 1972 European Community Act.”11 This interpretation of parliamentary sovereignty makes it impossible for Britain to pool sovereignty into the EU because sovereignty cannot be shared. As Bryant says, “the binary composition” of the British conception stands in contrast to the EU’s approach, “where state sovereignty is dialled up or down along a continuum to suit EU interests”. Binary and continuous interpretations are clearly incompatible.12 The UK has a “political constitution”, because it is based not only on legal but also on non-legal norms and therefore – this is especially relevant for our argumentation – it cannot be put into a political structure that is based essentially on “legal constitutionalism”.13

Another important reason of why British conservatives give priority to self-determination and support Brexit is the conflict between British and Union law. EU law claims and has priority over national law and this standpoint cannot be reconciled with the British view of sovereignty. This is why “control of our own laws” became a crucial objective for Leavers. To make this issue even more problematic, EU law tends to be more and more influenced by the courts which, in the eyes of most British conservatives, put themselves in the place of the legislature. Mainstream British conservative thinking is convinced that the rule of law, so crucial for all conservatives, is not the same as the rule of judges. Legal constraints upon law-makers are thus alien to British conservatives.14 As John F. Larkin pointed out in his lecture at the National University of Public Service in Budapest, the expansion of judicial powers seems to be an unstoppable trend in Europe; the EU is on the way of becoming a “judicracy”.15 It means that the Union is increasingly governed by the judges: the obligations flowing from the treaties are interpreted by the Court of Justice of the European Union (CJEU). As a consequence, however much the conservatives opposed it, the role of the CJEU became crucial for Britain as well – the principle of the priority of EU law was firmly established in 1991 when an act passed by the Westminster Parliament was overruled by the CJEU.16 In the words of Roger Scruton, “the contrast between our bottom-up system of legal argument and the top-down jurisprudence of the European courts explains much of the alienation that the British electorate have felt towards Brussels”.17

 

THE ANGLOSPHERE IN THE BRITISH CONCEPTION OF SOVEREIGNTY

 

The present writer is convinced that the attachment to the Anglosphere”, inherent in the British conception of sovereignty also plays a very important, though often underrated role in explaining the British opposition to the EU project. In the words of Bryant, this special element “biases the British conception of sovereignty towards entities with which the UK has an organic relationship”.18 This international dimension, though seemingly alien to the British mindset, is a marked and unique attribute of the UK’s conception of sovereignty. The idea of the Anglosphere fulfils a key function in conservative thinking: it offers a potential alternative to a centralised Europe, as expounded in more detail by the present author in Hungarian Review.19 The above-mentioned “bias” of the British interpretation of sovereignty flows logically from the fact that the Anglosphere (primarily the Commonwealth and the United States) consists of nations sharing a common set of institutions and characteristics. Margaret Thatcher, speaking at the English-Speaking Union in 1999, backing the idea of the Anglosphere, defined the content of British sovereignty by providing an extended interpretation of British identity when she pointed out that “an English-Speaking  Union would be united by those deeper values – our common moral commitments to democracy and freedom tied together by our common language”.20 According to most conservatives the basic elements of the British political tradition, such as the rule of law, representative government or the respect for private property are not unconditionally valued and defended on the European continent – and this is one more reason for insisting on preserving British sovereignty. A leading exponent of the idea of the Anglosphere, C. Bennett rightly emphasises that in the new century culture is becoming more and more important, thus nations with marked cultural similarities can cooperate better than nations that are bound together only by geographical factors.21 In fact, the noted historian, Robert Conquest emphasises that “no serious reasons (properly speaking) have ever been advanced for British membership of the EU”.22 In a similar vein John O’Sullivan remarked retrospectively that “the economic case for ‘joining Europe’ was weak and the case against surrendering our sovereignty to do so therefore strong”.23

 

CHANGE AND CONTINUITY IN CONSERVATIVE PRIORITIES

 

Brexit – aiming at reasserting national self-determination against supranational institutions has made it unavoidable to widen the traditional social base of conservative strategy and this in turn led to actively cooperating with the working class. The new conservatism espoused by Boris Johnson and his government is now based on a peculiar combination of the votes of the patriotic northern English working class and the upper-middle class, mainly southern Tories. The adamant opposition of the Remainers to implementing the decision of the referendum forced British conservatives to choose between their prioritised values and sacrificing the “elitist” approach to government for the sake of securing national sovereignty. For a considerable period of time it proved to be possible for British conservatism to reconcile the elitist ideas of responsibility with the politics of resisting European interference and fighting against the loss of sovereignty by securing concessions and opt-outs. In other words to a certain extent membership in the EU could be incorporated into the BPT but only to a limited extent. Supranational integration had gone beyond the point that conservatives could accept. Thus we can establish that Brexit has had a paradoxical effect on the BPT: whereas it has significantly undermined the old assumption that “Westminster knows best”, it has not only maintained but also strengthened the conservative tradition of safeguarding national sovereignty.

The Brexit process resulted in a sharp dividing line in British politics, pushing into the background the traditional class-based divisions. This development moved the Conservative Party somewhat towards a “plebeian” version of conservatism in which the principle of unlimited majoritarian democracy presents no problem.24 The general trends in Western politics of a growing distrust of elites, of growing discontent with the political establishment and the disintegration of the traditional bonds linking the people and the parties have been important factors in this outcome. On issues of identity one finds especially big differences between elites and voters: the latter are much more likely to insist on returning powers from the EU to their nation state than the elites.25 In the struggle around Brexit even the conservative elite was divided because a minority of hard-line Tory Remainers, quoting John O’Sullivan, “had switched consciously to a European political identity over a British one”, displaying a case of “transferred nationalism”.26

The main conclusion of this study is that the Brexit vote, the democratic legitimacy of which cannot be called into question encapsulates the content of the British conception of sovereignty. In Scruton’s view Brexit restores “a proper sense of patriotism” which is inseparable from the conservative approach to sovereignty.27 The commitment of British conservatives to national sovereignty, together with their firm conviction that it cannot be shared (and so it cannot be “pooled” in the EU) explains that the defence of national sovereignty has inevitably taken precedence over the traditional conservative conception of government. Of the two issues sovereignty is the more powerful. Professor Michael Freeden, a noted researcher of political thought reminds us that concepts within a political ideology “may often gravitate from more central to a marginal position or vice versa”.28 It is our contention that the Brexit process removed the traditional conservative conception of government from the core position, though it has not eliminated it entirely. This change in the morphological structure of ideas has not deprived conservatism of its own unique character: in fact, the political strength of British conservatism has always been not only in conserving institutions and practices but also in being able to adapt successfully to the challenges of time.


 

Notes:


1 Matthew Hall, David Marsh, Emma Vines: “A Changing Democracy: Contemporary Challenges to the British Political Traditions”, Policy Studies, Vol. 39, 2018/4, 365–382.

2 Edmund Burke: Reflections on the Revolution in France, 1790, London, Printed for J. Dodsley, 88–89.(online).

3 It does not contradict this statement that in practical, everyday politics the above-outlined theoretical conviction could not, of course, be realised with the advance of democracy and, consequently, no conservative party can today campaign on such a platform.

4 Peter Dorey: British Conservatism. The Politics and Philosophy of Inequality, I. B. Tauris, London, 2011, 7.

5 Peregrine Worsthorne: Democracy Needs Aristocracy, Harper Perennial, London, 2004.

6 John Redwood: Superpower Struggles? Mighty America, Faltering Europe, Rising Asia, Palgrave-Macmillan, Basingstoke, 2005, 12.

7 Winston Churchill: Editorial, Saturday Evening Post, 15 February 1930, cited by Walter Lipgens: A History of European Integration, 1945–1947, Oxford Clarendon Press, 1982, 318.

8 Margaret Thatcher: Speech to the College of Europe, Bruges, 20 September 1988, Margaret Thatcher Foundation, https://www.margaretthatcher.org/document/107332

9 Albert Venn Dicey: Introduction to the Study of the Law of the Constitution, London, 1885 (online).

10 Thomas Bryant: “How the British Conception of Sovereignty Makes EU Membership Untenable”, https://brexitcentral.com/ 27 September 2019, 2 (online).

11 Mark Elliot: “‘Vote Leave, Take Control?’ Sovereignty and the Brexit Debate”, Public Law for Everyone, 23 June 2016, https://publiclawforeveryone.com/2016/06/23/vote-leave-take-control-sovereignty-and-the-brexit-debate/

12 Bryant: op. cit., 3.

13 The concept of “political constitutionalism” was elaborated by Richard Bellamy: Political Constitutionalism, Cambridge University Press, 2007.

14 This is not a new development: already the Bill of Rights of 1689 (Article 9) stipulates that parliamentary proceedings “ought not to be impeached or questioned in any court”.

15 John F. Larkin (Attorney General for Northern Ireland): “Brexit and the Future of the European Legal Tradition”, lecture held at the National University of Public Service in Budapest on 27 November 2019. This opinion is also expressed by the noted German scholar Bernd Rüthers: Die heimliche Revolution vom Rechtsstaat zum Richterstaat, Tübingen, Mohr Siebeck, 2014.

16 Factortame Ltd v Secretary of State for Transport, 1991. (The case concerned ship registration after complaints by Spanish fishermen), https://webstroke.co.uk/law/cases/factortame-no-2-1991

17M Roger Scruton: “Brexit Will Restore a Proper Sense of Patriotism”, The Times Comment, 17 November 2017, https://www.roger-scruton.com/articles/482-brexit-will-restore-a-proper-sense-of-patriotism-the-times-comment-17-nov-17

18 Bryant: op. cit., 3.

19 Gergely Egedy: “The Anglosphere’ – an Alternative to Europe?”, Hungarian Review, Vol. VIII, No. 1, May 2017, http://www.hungarianreview.com/article/20170517_the_anglosphere_an_alternative_to_europe_

20 Margaret Thatcher: “The Language of Liberty”, Speech to the English-Speaking Union, New York, 7 December 1999, New York, https://www.margaretthatcher.org/document/108386

21 For the conception of Bennett, see in more detail: Egedy: op. cit.

22 Robert Conquest: Reflections on a Ravaged Century, John Murray, London, 1999, 255.

23 John O’Sullivan: “‘Goodbye to All That’: An Early Eurosceptic and Thatcher Aide Looks Back”, National Review, 3 February 2020.

24 For “patrician” and “plebeian” conservatism see Gergely Egedy: “Conservatism and Nation-Models in Hungary”, Hungarian Review, Vol. IV, No. 3, May 2013, 66–75.

25 In more detail: Roger Eatwell – Matthew Goodwin: National Populism. The Revolt Against Liberal Democracy, Pelican Books, 2018, 111.

26 John O’Sullivan: “If Brexit Fails, So Does Britain”, National Review, 6 April 2019, https://www.nationalreview.com/corner/brexit-debate-british-independence/

27 Scruton: op cit.

28 Michael Freeden: Ideologies and Political Theory, A Conceptual Approach, Oxford, Clarendon Press, 1998, 78.

 




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